In deciding treaty status, courts place "controlling importance" on the governmental conduct of the countries at issue.
Guyana's post-independence accession to other treaties – but its failure to formally accede to the Warsaw Convention – created a "strong inference" that the Guyanese government no longer considered Guyana to be a party to the treaty.
In personal injury cases arising from the crash landing of Caribbean Airlines Flight BW523 in the Republic of Guyana in 2011, the court determined that Guyana, a former British colony, was not a party to the Warsaw Convention (WC) and denied the airline's motion to dismiss for lack of subject matter jurisdiction.1 Although the WC was considered to be in effect in British Guiana as early as 1935, the court found compelling that Guyana, unlike other British colonies, never formerly acceded to the treaty following its independence in 1966 even though it had formally acceded to other treaties that had applied to British Guiana. The court placed "controlling importance" on the post-independence conduct of the U.S. and Guyanese governments, specifically by their respective executive branches.2
The U.S. Government's Position
In determining the U.S. government's views on Guyana's party status, the court examined the historical changes to the State Department's annual publication Treaties in Force, which identifies treaties and other international agreements that have not been denounced or replaced by the parties, superseded by other agreements, or otherwise terminated.
The 1969 edition of Treaties in Force (published three years after Guyana's independence), identifies Guyana as a party to the WC. Importantly, however, this designation was linked through footnotes to a 1966 letter from the prime minister of Guyana to the secretary general of the United Nations (UN) stating that his government's desire is that each treaty applied to British Guiana be presumed as "legally succeeded to by Guyana and that action be based on such presumption until a decision is reached that it should be regarded as having lapsed."
By 1997, the State Department began omitting Guyana from the list of parties to the WC and inserted a new footnote stating that the "status of certain states to which the convention was applicable prior to their becoming independent is not determined." In 2002, the State Department completely omitted the footnote. The court construed this change as "significant" and reflecting the State Department's unambiguous position that these states were no longer considered parties to the WC. Notably, the 2011 edition, in effect at the time of the accident, does not identify Guyana as a party to the WC. The court considered this omission to be persuasive evidence of termination. Despite an inquiry from the court, the State Department declined to issue a formal opinion on Guyana's party status for purposes of the litigation.
Guyana's Ambiguous Position
In analyzing the Guyanese government's conduct, the court found relevant that the government acceded to several other aviation-related treaties, but failed to formally accede to the WC. This conduct "creates a strong inference that the Guyanese government does not consider Guyana to be a party," particularly when numerous other former British colonies have formerly acceded to the treaty. Indeed, most former colonies of Belgium, France, Portugal and the Netherlands also have filed notices of accession to the WC.
Although the airline relied on the 1966 letter from the prime minister of Guyana to the UN and the letter's presumption of continuity of colonial-era treaties, the court determined that the force of the letter diminished over time as reference to it no longer appeared in Treaties in Force and Guyana formally acceded to other aviation-related treaties.
The court likewise rejected Guyana's Republic Act as evidence of party status. The act states only that all existing laws have effect as part of the law of Guyana on and after Feb. 23, 1970. The act, however, is silent as to whether Guyana's independence terminated its rights under the WC. The court also disagreed with the defendant's reliance on a 1967 Guyanese Court of Appeal holding,3 finding the case "inapposite" because the parties had agreed that the WC was the applicable law and the controversy occurred before Guyana's independence and therefore "says nothing about whether Guyana remained subject to the [WC] after independence."The court further noted that that the Guyanese judiciary is not entitled to the same deference as the executive branch in matters of treaty interpretation.
Distinguishing Blake v. American Airlines
The court distinguished Blake v. American Airlines, Inc.,4 where the Eleventh Circuit Court of Appeals held that Jamaica, a former British colony, remained a party to the WC after gaining independence from the United Kingdom. According to the court, the Blake case arose from an incident in 1995 and the court in that case consulted a pre-2002 version of Treaties in Force which still contained the language that "the status of certain states to which the [C]onvention was applicable prior to their becoming independent is not determined."5 Based on this language, the Eleventh Circuit concluded that the U.S. has taken no position on whether Jamaica was a party to the WC.
Although the court recognized that Jamaica, like Guyana, had not formally acceded to the WC despite acceding to other pre-independence treaties, the court found "more compelling the positive implications created by Jamaica's affirmative conduct in respect to the Convention." Specifically, Jamaica had taken an active role in negotiations to amend the WC, it participated in the supplemental treaty known as the Guatemala Protocol (now known as the Montreal Protocols), and it certified the Guadalajara Convention, which supplements the WC. Guyana, in contrast, has not undertaken any similar affirmative conduct in regard to treaty amendments or protocols.
While the airline introduced evidence that the British and Canadian governments have recognized Guyana as a party to the WC, the court considered dispositive the views of the U.S. and Guyana, the countries to which the treaty relationship was at issue. Lastly, the court noted that the Second Circuit has yet to adopt the presumption followed by other Circuit Courts that prior treaties recognized by a former colonial power will devolve to the successor in interest nation.6 Based on the foregoing, the court concluded that "it is more likely than not that Guyana is not a party to the WC."
Guidance on Treaty Status
This case provides useful guidance on how a court may analyze treaty relationships under the Warsaw and Montreal Conventions. Especially instructive is the court's reliance on the State Department's Treaties in Force publication as persuasive evidence of the U.S. government's position regarding a country's treaty status, despite differing views by other countries. Additionally, a country's governmental conduct, specifically by its executive branch, will likely be controlling on this issue.
1In re Air Crash at Georgetown, Guyana, on July 30, 2011, No. 12-md-2395 (ARR)(JMA) (E.D.N.Y. May 21, 2014). The plaintiffs had traveled on one-way tickets, purchased outside the U.S., from Florida to Georgetown, Guyana. In order for the WC to govern the plaintiffs' claims, there must be international transportation between two High Contracting Parties to the treaty (here, the U.S. and Guyana), or roundtrip transportation from a single High Contracting Party with an agreed stop in another country. See WC, Art.1(2). Article 28 of the WC limits the forums where an action can be brought to the airline's domicile or principal place of business, the place of contract and the passenger's destination – all of which were outside the U.S. in this case. The airline, therefore, argued that, assuming Guyana is a party to the treaty and the WC governs, the court lacked subject matter or treaty jurisdiction.
2Quoting N.Y. Chinese TV Programs, Inc. v. U.E. Enters., Inc., 95 F.2d 847, 852 (2d Cir. 1992). The court declined to apply the Vienna Convention on the Law of Treaties because that convention does not address the issue of treaty status based on succession of states. Finding an absence of customary international law in the area of state succession, the court focused on the U.S. and Guyanese governments' positions with respect to whether the WC remained in force between the two countries.
3 Bart v. British West Indian Airways, Ltd.,  1 Lloyd's Rep. 239 (C.A.) (Guyana).
4 245 F.3d 1213 (11th Cir. 2001).
5 Id.at 1216.
6 See, e.g., Saroop v. Garcia, 109 F.3d 165 (3d Cir. 1997).
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