Dazo

Opinion by Judge O’SCANNLAIN; Dissent by Judge TASHIMA

We must decide whether the Warsaw Convention relating to international air transportation preempts state law claims for damages from the theft of a carry-on bag from an airport security checkpoint.

I

On May 12, 1999, Ester Dazo (“Dazo”) entered Terminal C at the San Jose International Airport, where she intended to board an 11:50 a.m. flight to Toronto, connecting in St. Louis. To enter the secured area of the terminal, persons must pass through a security checkpoint, where they are examined by metal detectors and their possessions are x-rayed. Globe Airport Security Services (“Globe”) operates the security checkpoints at San Jose International. Both ticketed passengers and the general public may enter the secured area, which contains both embarking gates and retail establishments.

At 10:00 a.m., Dazo approached the terminal’s security checkpoint. She placed her carry-on baggage on the x-ray machine conveyor belt, which carried her bags through the x-ray machine and for an additional distance of ten to fifteen feet. By the time Dazo passed through the metal detector, an unknown person or persons had taken her carry-on…

dissenting:

I dissent from the majority’s unprecedented and unwarranted expansion of immunity under the Warsaw Convention.

Globe Airport Security Services (“Globe”) operates the security checkpoints at the San Jose, California, International Airport on behalf of three air carriers who operate out of that airport-America West Airlines, Inc., Trans World Airlines, Inc., and Continental Airlines (collectively the “Airlines”). In so acting, Globe is the common agent of all three Airlines, and it was so acting at the time of the theft in question. Further, the theft took place at a checkpoint which screens domestic passengers and international passengers alike, and non-passengers, as well as passengers. As the majority acknowledges, “Globe was conducting a security check that every airline agent must perform” under federal law, maj. op. at 676-77, regardless of whether the flight being boarded is a domestic or international flight, or whether the person being screened is boarding any flight at all.

From these facts, it does not follow that “Globe is a Warsaw Convention ‘carrier,’ ” as the majority concludes. Id. None of the cases cited by the majority in support of this proposition,…