Chubb Insurance Co. of Europe S.A. v. Menlo Worldwider Forwarding, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHUBB INSURANCE COMPANY OF 
EUROPE S.A., a foreign
corporation, on behalf of itself and
all other underwriters subscribing
to policy number CJ7317,
Plaintiff,
v. No. 08-55281
MENLO WORLDWIDER FORWARDING, D.C. No.
INC., a corporation, CV-06-07267-DSF
Defendant,
 Central District of
v. California,
UPS SUPPLY CHAIN SOLUTIONS, Los Angeles
INC., a corporation f/k/a MENLO ORDER
WORLDWIDE FORWARDING, INC.,
Defendant-third-party-plaintiff-
Appellant,
v.
QANTAS AIRWAYS LIMITED,
Third-party-defendant-Appellee.

Filed September 22, 2010
Before: Diarmuid F. O’Scannlain, Ronald M. Gould and
Sandra S. Ikuta, Circuit Judges.
15995
15996 CHUBB INSURANCE v. UPS SUPPLY CHAIN
ORDER
The court invites briefs from amici curiae addressing the
question whether Article 35 of the Convention for the Unifi-
cation of Certain Rules for International Carriage by Air, May
28, 1999, S. Treaty Doc. No. 106-45 (“Montreal Conven-
tion”), providing that “[t]he right to damages shall be extin-
guished if an action is not brought within a period of two
years,” is applicable to indemnity actions brought by defen-
dants against third-party air carriers. The briefs may also
address some or all of the following questions:
1. Article 35 is substantially identical to Article 29 of the
Convention for the Unification of Certain Rules Relating
to International Transportation by Air, Oct. 12, 1929, 49
Stat. 3000, T.S. No. 876 (“Warsaw Convention”). How
does precedent interpreting Article 29 of the Warsaw
Convention affect our interpretation of Article 35 of the
Montreal Convention?
2. To the extent that such precedent is relevant, what does
it say? Specifically, should we look only to American
cases interpreting the Warsaw and Montreal Conventions,
or is there also relevant precedent from other signatory
nations?
3. The Montreal Convention differs from the Warsaw Con-
vention in numerous respects, including the addition of
Chapter 5. How do these differences affect our interpreta-
tion of a defendant’s ability to bring third-party indem-
nity actions under the Montreal Convention?
4. In interpreting treaties (as opposed to statutes), a court
must give effect to the intent of the “contracting” states.
Trans World Airlines, Inc. v. Franklin Mint Corp., 466
U.S. 243, 253 (1984). How does this principle affect our
interpretation of the effect of Article 35 on the ability of
a defendant to bring third-party indemnity actions?
CHUBB INSURANCE v. UPS SUPPLY CHAIN 15997
5. The Montreal Convention’s preamble states that a goal of
the Convention is the “harmonization and codification of
. . . rules.” How does this goal affect our interpretation of
the effect of Article 35 on the ability of a defendant to
bring third-party indemnity actions?
6. Article 37 of the Montreal Convention provides that
“[n]othing in this Convention shall prejudice the question
whether a person liable for damage in accordance with its
provisions has a right of recourse against any other per-
son.” Is this “right of recourse” a subset of the “right to
damages” in Article 35, and thus covered under that pro-
vision, or is it a right different from the “right to dam-
ages” in Article 35, and thus not covered by that
provision?
Briefs shall be filed no later than 21 days after the date of
this order. Any person or entity wishing to file a brief as an
amicus curiae in response to this order is granted leave to do
so pursuant to Fed. R. App. P. 29(a).
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