## Facts

- Samsung Electronics Co., Ltd. shipped seventeen parcels of computer chips from Seoul to San Francisco via Asiana Airlines, with Samsung Semiconductor, Inc. as the intended recipient.
- The cargo was lost during international air transportation.
- Chubb & Son, Inc., as insurer, paid the loss and sued Asiana as subrogee in the Southern District of New York to recover the cargo’s value.
- Asiana sought to limit liability under Article 22(2) of the Original Warsaw Convention to $20 per kilogram (allegedly $706 total).
- The United States was a party to the Original Warsaw Convention but did not ratify the Hague Protocol.
- South Korea adhered to the Hague Protocol (Warsaw as amended) but not to the unamended Warsaw Convention.

## Issues

1. Whether the United States and South Korea were in treaty relations governing the carriage where the United States was party only to the unamended Warsaw Convention and South Korea only to the Hague Protocol–amended Warsaw Convention.
2. If no treaty relations existed, whether Asiana could invoke the Warsaw Convention’s cargo liability limitation to cap damages.

## Decision

- The Second Circuit reversed the district court’s partial summary judgment limiting Asiana’s liability and remanded.
- The court held the United States and South Korea were not in treaty relations under the Warsaw Convention regime for this dispute because they were parties to different treaty instruments.
- The court rejected the district court’s approach of applying a treaty composed of provisions “common” to the unamended and amended Warsaw texts.
- Because no applicable Warsaw/Hague treaty governed the dispute, Asiana could not rely on the Warsaw Convention to limit liability to $706.

## Legal Principles

- Under customary international law of treaties, states are bound inter se only by treaty instruments to which both have consented; a court may not create a “composite” treaty from overlapping provisions of different instruments.
- An amending protocol that provides adherence has the effect of adherence to the convention “as amended” establishes treaty relations among protocol parties under the amended text, not automatically with states bound only by the unamended convention.
- The Vienna Convention on the Law of Treaties may be used as an authoritative guide to customary international law principles governing treaty formation, amendment, and inter se relations.
- Where no applicable treaty governs international carriage between the relevant states, treaty-based liability limitations are unavailable, and liability must be determined under other applicable law on remand.

## Conclusion

The Second Circuit held that because the United States was party only to the unamended Warsaw Convention and South Korea only to the Hague Protocol–amended version, no Warsaw-system treaty governed their mutual relations for this shipment; therefore, the airline could not invoke the Warsaw cargo liability cap, and the case was remanded for further proceedings under non-treaty law.


Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301 (2d Cir. 2000)