B-179739, JAN 29, 1975, 54 COMP GEN 633

B-179739: Jan 29, 1975

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ETC. - WARSAW CONVENTION AIR CARRIER'S CLAIM FOR AMOUNT ADMINISTRATIVELY DEDUCTED TO REIMBURSE GOVERNMENT FOR LOSS OF PERSONAL EFFECTS IS PROPER FOR ALLOWANCE WHERE ACTION AT LAW WAS NOT BROUGHT BY THE DEPARTMENT OF THE AIR FORCE WITHIN 2 YEARS AS REQUIRED BY ARTICLE 29 OF WARSAW CONVENTION. THE CONVENTION WAS SIGNED BY THE UNITED STATES IN 1934 AND ARTICLE 29 PROVIDES A 2-YEAR STATUTE OF LIMITATION ON LOSS AND DAMAGE CLAIMS RESULTING FROM INTERNATIONAL AIR TRANSPORTATION. THE AIR FORCE ALSO CONTENDS THAT IT IS ALMOST IMPOSSIBLE TO COMPLY WITH THE 7-DAY WRITTEN NOTICE OF DAMAGE REQUIRED BY THE CONVENTION (ARTICLE 26). BOTH THE AIR FORCE AND THE DEPARTMENT OF THE ARMY HAVE FILED LEGAL BRIEFS IN SUPPORT OF THEIR REQUEST FOR RECONSIDERATION OF THE CLAIM.

B-179739, JAN 29, 1975, 54 COMP GEN 633

STATUTES OF LIMITATION - CLAIMS - TRANSPORTATION - PROPERTY DAMAGE, LOSS, ETC. - WARSAW CONVENTION AIR CARRIER'S CLAIM FOR AMOUNT ADMINISTRATIVELY DEDUCTED TO REIMBURSE GOVERNMENT FOR LOSS OF PERSONAL EFFECTS IS PROPER FOR ALLOWANCE WHERE ACTION AT LAW WAS NOT BROUGHT BY THE DEPARTMENT OF THE AIR FORCE WITHIN 2 YEARS AS REQUIRED BY ARTICLE 29 OF WARSAW CONVENTION. THE 6-YEAR STATUTE OF LIMITATION IN 28 U.S.C. 2415 DOES NOT ABROGATE HOLDING IN FLYING TIGER LINE, INC. V. UNITED STATES, 170 F.SUPP. 422, 145 CT. CL. 1 (1959).

IN THE MATTER OF THE DEPARTMENT OF THE AIR FORCE - WARSAW CONVENTION, JANUARY 29, 1975:

THE DEPARTMENT OF THE AIR FORCE, OFFICE OF THE JUDGE ADVOCATE GENERAL, REQUESTS RECONSIDERATION OF OUR POSITION ON THE APPLICABILITY OF ARTICLE 29 OF THE WARSAW CONVENTION (HEREAFTER CONVENTION). 49 STAT. 3000, 49 U.S.C. 1502, NOTE (1970). THE CONVENTION WAS SIGNED BY THE UNITED STATES IN 1934 AND ARTICLE 29 PROVIDES A 2-YEAR STATUTE OF LIMITATION ON LOSS AND DAMAGE CLAIMS RESULTING FROM INTERNATIONAL AIR TRANSPORTATION. IN A LETTER DATED DECEMBER 19, 1973, OUR TRANSPORTATION AND CLAIMS DIVISION TOLD THE AIR FORCE THAT SUCH A CLAIM, FILED BY SEABOARD WORLD AIRLINES FOR $722.48, WOULD BE ALLOWED BECAUSE ALTHOUGH THE AIR FORCE COLLECTED THE CLAIM BY SETOFF, IT FAILED TO BRING AN ACTION AT LAW WITHIN THE REQUIRED 2 YEARS.

IN ADDITION, THE AIR FORCE HAS, FOR VARIOUS REASONS, REQUESTED RECONSIDERATION OF THE 6-MONTH PERIOD FOR REFERRING CLAIMS TO THE GENERAL ACCOUNTING OFFICE AS SET FORTH IN A CIRCULAR LETTER OF AUGUST 4, 1960, B- 139598, B-139994, AND B-114365. THE AIR FORCE ALSO CONTENDS THAT IT IS ALMOST IMPOSSIBLE TO COMPLY WITH THE 7-DAY WRITTEN NOTICE OF DAMAGE REQUIRED BY THE CONVENTION (ARTICLE 26).

BOTH THE AIR FORCE AND THE DEPARTMENT OF THE ARMY HAVE FILED LEGAL BRIEFS IN SUPPORT OF THEIR REQUEST FOR RECONSIDERATION OF THE CLAIM. THE LEGAL BRIEFS DISAGREE IN PART, BUT AGREE IN THEIR FINAL CONCLUSIONS AND IN THEIR MAIN ARGUMENTS: (1) SECTION 2415 OF TITLE 28 OF THE U.S.C. (U.S.C. POST DATES THE HOLDING IN FLYING TIGER LINES, INC. V. UNITED STATES, 170 F.SUPP. 422, 145 CT. CL. 1 (1959), AND THUS THE 6 YEAR LIMITATION PROVIDED IN THE ACT IS APPLICABLE; (2) ARTICLE 29 OF THE CONVENTION IS A LIMITATION ON LIABILITY AND MUST BE MENTIONED ON THE GOVERNMENT BILL OF LADING (GBL) EXPLICITLY OR BE INCORPORATED BY REFERENCE; (3) GBL'S THAT DO NOT INCORPORATE ARTICLE 29 ARE GOVERNED BY THE PROVISIONS CONTAINED IN CONDITION 7 ON THE REVERSE SIDE OF THE GBL.

SECTION 2415 OF TITLE 28 OF THE U.S.C. WAS ENACTED IN 1966. IT PROVIDES IN PERTINENT PART:

SUBJECT TO THE PROVISIONS OF SECTION 2416 OF THIS TITLE, AND EXCEPT AS OTHERWISE PROVIDED BY CONGRESS, EVERY ACTION FOR MONEY DAMAGES BROUGHT BY THE UNITED STATES OR AN OFFICER OR AGENCY THEREOF WHICH IS FOUNDED UPON ANY CONTRACT EXPRESS OR IMPLIED IN LAW OR FACT, SHALL BE BARRED UNLESS THE COMPLAINT IS FILED WITHIN SIX YEARS AFTER THE RIGHT OF ACTION ACCRUES OR WITHIN ONE YEAR AFTER FINAL DECISIONS HAVE BEEN RENDERED IN APPLICABLE ADMINISTRATIVE PROCEEDINGS REQUIRED BY CONTRACT OR BY LAW, WHICHEVER IS LATER ***.

IN FLYING TIGER, SUPRA, AN ADMINISTRATIVE SETOFF WAS HELD NOT TO BE THE EQUIVALENT OF THE LAWSUIT PRESCRIBED BY ARTICLE 29. THE COURT STATED:

ALL THAT IT (THE UNITED STATES) DID WAS TO MAKE UP ITS MIND TO PAY ITSELF OUT OF MONEY OTHERWISE DUE THE PLAINTIFF, RECORD THAT DECISION ON ITS ACCOUNT BOOKS, AND ADVISE THE PLAINTIFF OF WHAT IT HAD DONE. THESE ACTIONS WERE IN NO SENSE THE SUBSTANTIAL EQUIVALENT OF THE LAWSUIT PRESCRIBED BY THE CONVENTION. 170 F.SUPP. AT 426.

THE FLYING TIGER CASE HAS NEVER BEEN OVERRULED NOR DISTINGUISHED. IT HAS BEEN CITED APPROVINGLY ON THIS SPECIFIC POINT IN A SUBSEQUENT DECISION. ERIE LACKAWANNA RAILWAY CO. V. UNITED STATES, 439 F.2D 194, 194 CT. CL. 504 (1971). THE CASE STATES:

BUT AN ADMINISTRATIVE DEDUCTION IS NOT THE EQUIVALENT OF A LAWSUIT *** 439 F.2D AT 200.

THE ARMY CORRECTLY CONTENDS THAT IT LONG HAS BEEN THE LAW THAT TREATIES AND ACTS OF CONGRESS ARE ON THE SAME FOOTING BUT WHERE THE TWO ARE IN CONFLICT, THE LATEST IN TIME MUST PREVAIL. THE CHEROKEE TOBACCO, 11 WALL 616 (1871); WHITNEY V. ROBERTSON, 124 U.S. 190 (1888); THE CHINESE EXCLUSION CASE, 130 U.S. 581 (1889).

HOWEVER, THE ARMY CONTENDS THAT THE STATUTE PASSED IN 1966 ABROGATES BOTH THE TERMS OF THE CONVENTION OF 1934, AND THE FLYING TIGER CASE OF 1959. WE DISAGREE, AS THE ARMY FAILS TO FULLY EXPLAIN THE EFFECT OF THE PROVISION "EXCEPT AS OTHERWISE PROVIDED BY CONGRESS" CONTAINED IN THE STATUTE. WE AGREE WITH THE AIR FORCE THAT THE LEGISLATIVE HISTORY OF PUBLIC LAW 89-505, AT 1966 U.S.C. CONG. & AD. NEWS, PAGE 2509, INDICATES THAT THE BILL DOES NOT AFFECT EXISTING STATUTES OF LIMITATIONS. FURTHER, BOTH THE HOUSE AND THE SENATE STATED THEIR INTENT TO LEAVE PREEXISTING STATUTES OF LIMITATION UNTOUCHED AS INDICATED IN THE FOLLOWING STATEMENTS: "*** THE BILL DOES NOT AFFECT EXISTING STATUTES OF LIMITATION. THERE ARE A NUMBER OF SUCH STATUTES ON THE BOOKS." HEARINGS ON H.R. 13652 BEFORE A SUBCOMM. OF THE HOUSE COMM. ON THE JUDICIARY, 89TH CONG., 2D SESS. 15 (1966). "THE COMMITTEE POINTS OUT THAT THE BILL DOES NOT AFFECT EXISTING STATUTES OF LIMITATIONS." S. REPORT NO. 1328, 89TH CONG., 2D SESS. 1298 (1966).

THE BILL WAS PASSED BY CONGRESS WITHOUT AMENDMENT. 112 CONG. REC. 13737 (1966).

WE CANNOT AGREE THAT THE GBL SHOULD CONTAIN A NOTICE OF THE ARTICLE 29 2- YEAR STATUTE OF LIMITATIONS IN ORDER TO BE EFFECTIVE. ASSUMING THE CONVENTION IS APPLICABLE, IT IS ALSO NECESSARY TO DETERMINE WHETHER OR NOT ARTICLE 29 IS OPERATIVE. THE AIR FORCE ARGUES THAT ARTICLE 29 IS INOPERATIVE IF THE CARRIER HAS FAILED TO COMPLY WITH ARTICLES 3, 4, 8 OR 9. ARTICLE 3 DEALS WITH THE PASSENGER TICKET, ARTICLE 4 WITH THE BAGGAGE CHECK, AND ARTICLES 8 AND 9 WITH THE AIR WAYBILL. THESE FOUR ARTICLES PROVIDE THAT IF THE TICKET, CHECK, OR WAYBILL FAILS TO INFORM THE PASSENGER OR SHIPPER "THAT THE TRANSPORTATION IS SUBJECT TO THE RULES RELATING TO LIABILITY ESTABLISHED BY THIS CONVENTION," THEN THE CARRIER "SHALL NOT BE ENTITLED TO AVAIL HIMSELF OF THOSE PROVISIONS OF THIS CONVENTION WHICH EXCLUDE OR LIMIT HIS LIABILITY." ARTS. 3(1)(E), (2). SEE ALSO ARTS. 4(4), 8(Q), 9. THE GBL IS THE EQUIVALENT OF THE AIR WAYBILL AND IT DOES NOT CONTAIN THE LANGUAGE REQUIRED BY ARTICLES 8 AND 9.

THE QUESTION OF WHETHER OR NOT ARTICLE 29 EXCLUDES OR LIMITS LIABILITY, AND THEREFORE FALLS WITHIN THE LANGUAGE OF ARTICLES 3, 4, 8, AND 9, HAS ALREADY BEEN DECIDED IN MOLITCH V. IRISH INTERNATIONAL AIRLINES, 436 F.2D 42 (2D CIR. 1970) AND BERGMAN V. PAN AMERICAN WORLD AIRWAYS, 299 N.Y.S. 2D 982 (APP. DIV. 1969). BOTH THESE CASES HAVE HELD THAT ARTICLE 29 REMAINS EFFECTIVE WHETHER OR NOT ITS APPLICABILITY IS STATED ON THE AIR WAYBILL. THE AIR FORCE DOUBTS THE STRENGTH OF THESE HOLDINGS IN LIGHT OF A MORE RECENT DECISION, SOFRANSKI V. KLM DUTCH AIRLINES, 326 N.Y.S. 2D 870 (CIV. CT. 1971). THESE DOUBTS LACK ALL BASIS IN FACT FOR THE FOLLOWING REASONS.

THE GENERAL RULE IS THAT A TICKET OR AIR WAYBILL MUST BE DELIVERED TO THE PASSENGER OR SHIPPER IN SUCH A MANNER AS TO AFFORD HIM A REASONABLE OPPORTUNITY TO TAKE SELF-PROTECTIVE MEASURES. THIS RULE, FIRST ENUNCIATED IN LISI V. ALITALIA-LINE AERRE ITALIANE, 370 F.2D 508 (2D CIR. 1966), AFFIRMED 390 U.S. 455 (1968), HAS BEEN CONSISTENTLY APPLIED IN SUBSEQUENT CASES, RESULTING IN TWO DISTINCT LINES OF DECISIONS. (1) IN ORDER TO LIMIT ITS LIABILITY UNDER THE MONETARY LIMITATIONS OF ARTICLE 22, THE CARRIER MUST PROPERLY NOTIFY THE PASSENGER OR SHIPPER OF THE EXISTENCE OF THE LIMITATION. MERTENS V. FLYING TIGER LINE, INC., 341 F.2D 851 (2D CIR. 1965), CERT. DENIED 382 U.S. 816 (1965). (2) HOWEVER, IN ORDER TO INVOKE THE 2-YEAR STATUTE OF LIMITATIONS OF ARTICLE 29, THE CARRIER NEED NOT NOTIFY THE PASSENGER OR SHIPPER OF THE EXISTENCE OF THE LIMITATION. MOLITCH V. IRISH INTERNATIONAL AIRLINES, SUPRA.; BERGMAN V. PAN AMERICAN WORLD AIRWAYS, SUPRA.

IN THE BERGMAN CASE, THE COURT STUDIED THE MINUTES OF BOTH THE WARSAW AND THE HAGUE CONVENTIONS AND CONCLUDED THAT ARTICLE 3 WAS INCLUDED IN ORDER TO APPLY ONLY TO ARTICLE 22. 299 N.Y.S. 2D AT 985. IN THE MOLITCH CASE, THE COURT CONSIDERED THE LISI RULE AND CONCLUDED THAT NOTIFICATION OF THE ARTICLE 29 STATUTE OF LIMITATION WOULD NOT PROVIDE THE PLAINTIFF WITH AN OPPORTUNITY TO TAKE SELF-PROTECTIVE MEASURES, AND THEREFORE SUCH NOTIFICATION WAS UNNECESSARY. 436 F.2D AT 44.

IN SOFRANSKI, THE CASE RELIED ON BY THE AIR FORCE TO THROW DOUBT ON THE BERGMAN AND MOLITCH HOLDINGS, THE COURT DEALT WITH THE TIMELY NOTICE REQUIREMENT OF ARTICLE 26 WHICH PROVIDES IN PERTINENT PART:

(2) IN CASE OF DAMAGE, THE PERSON ENTITLED TO DELIVERY MUST COMPLAIN TO THE CARRIER FORTHWITH AFTER THE DISCOVERY OF THE DAMAGE, AND AT THE LATEST, WITHIN 3 DAYS FROM THE DATE OF RECEIPT IN THE CASE OF BAGGAGE AND 7 DAYS FROM THE DATE OF RECEIPT IN THE CASE OF GOODS. IN CASE OF DELAY THE COMPLAINT MUST BE MADE AT THE LATEST WITHIN 14 DAYS FROM THE DATE ON WHICH THE BAGGAGE OR GOODS HAVE BEEN PLACED AT HIS DISPOSAL.

THE COURT RECOGNIZED THE "TWO WELL ESTABLISHED AND DIVERSE LINES OF AUTHORITY ADVANCED BY THE RESPECTIVE PARTIES," AND CONCLUDED THAT THE TIMELY NOTICE REQUIREMENT WAS CLOSER BY ANALOGY TO LIMITATIONS ON THE AMOUNT OF LIABILITY THAN TO A STATUTE OF LIMITATIONS. 326 N.Y.S. 2D AT 871. THE COURT REACHED ITS DECISION BY APPLYING THE LISI RULE. CONCLUDED THAT IF A PASSENGER KNEW OF THE LIMITATIONS ON THE AMOUNT OF LIABILITY IN ADVANCE, HE COULD TAKE STEPS TO PROTECT HIMSELF, "WHEREAS WITH RESPECT TO THE STATUTE OF LIMITATIONS THERE IS NOTHING A PASSENGER COULD DO AND ANYHOW HE HAS PLENTY OF TIME AFTER THE EVENT TO LEARN ABOUT IT AND COMPLY; SEE MOLITCH V. IRISH INTERNATIONAL AIRLINES, SUPRA." 326 N.Y.S. 2D AT 872. THE COURT ALSO EXPLAINED THAT A STATUTE OF LIMITATION DOES NOT EXCLUDE OR LIMIT LIABILITY AS DOES A TIMELY NOTICE REQUIREMENT, BUT INSTEAD EXTINGUISHES THE CAUSE OF ACTION. 326 N.Y.S. 2D 872. THE SOFRANSKI CASE THEREFORE PRESERVES AND SOLIDIFIES THE BERGMAN AND MOLITCH HOLDINGS THAT ARTICLE 29 CANNOT BE AVOIDED EVEN THOUGH THE CARRIER HAS FAILED TO NOTIFY THE SHIPPER OF THE EXISTENCE OF THE PROVISION.

THE AIR FORCE STATES THAT MOLITCH WOULD REQUIRE THE DEPARTMENT OF DEFENSE TO TAKE SPECIFIC MEASURES TO COUNTERACT THE COSTS OF LAW SUITS REQUIRED BY ARTICLE 29. THE MEASURES ARE: (1) THE PURCHASE OF INDEPENDENT DAMAGE INSURANCE TO COVER INTERNATIONAL AIR SHIPMENTS; (2) THE DEMAND FOR LOWER FREIGHT RATES FROM INTERNATIONAL CARRIERS; AND (3) THE USE OF ITS OWN AIRCRAFT FOR GOODS SHIPPED OVERSEAS.

THESE MEASURES, ALTHOUGH HAVING MERIT, WOULD APPEAR TO BE AGAINST POLICY OR ALREADY IMPLEMENTED. IT HAS LONG BEEN THE POLICY OF THE GOVERNMENT TO BE SELF-INSURED. THUS, A PLAN OF SELF-INSURANCE WOULD SEEM TO REQUIRE STATUTORY AUTHORITY AND APPROPRIATION OF THE NECESSARY FUNDS. ALSO, IT LONG HAS BEEN A POLICY OF THE MILITARY TRAFFIC MANAGEMENT COMMAND TO NEGOTIATE FOR THE LOWEST POSSIBLE RATE (THE SHIPMENT HERE IN QUESTION MOVED UNDER THE AUTHORITY OF SEABOARD WORLD AIRLINES, INC., LOCAL AND JOINT MILITARY AIR CARGO TARIFF NO. C-MS-2, C.A.B. NO. 18, PRESUMEDLY AT A LOWER RATE THAN THAT AVAILABLE TO THE GENERAL PUBLIC). AND WE UNDERSTAND THAT THE PRESENT POLICY OF THE DEPARTMENT OF DEFENSE IS TO MAINTAIN THE CURRENT LEVEL OF THE USE OF ITS OWN AIRCRAFT FOR THE TRANSPORTATION OF OVERSEAS SHIPMENTS. WE ALSO HAVE TO ASSUME THAT MILITARY TRAFFIC MANAGERS ARE AWARE OF THE FACT THAT ALL COMMERCIAL INTERNATIONAL SHIPMENTS ARE SUBJECT TO THE TERMS OF THE CONVENTION. APPLICABLE REGULATIONS EXIST FOR THE GUIDANCE OF FEDERAL AGENCIES. 5 GAO 5015.30 (JULY 15, 1968).

FINALLY, ARTICLE 32 OF THE CONVENTION READS IN PART:

ANY CLAUSE CONTAINED IN THE CONTRACT AND ALL SPECIAL AGREEMENTS ENTERED INTO BEFORE THE DAMAGE OCCURRED BY WHICH THE PARTIES PURPORT TO INFRINGE THE RULES LAID DOWN BY THIS CONVENTION, WHETHER BY DECIDING THE LAW TO BE APPLIED, OR BY ALTERING THE RULES AS TO JURISDICTION, SHALL BE NULL AND VOID.

THEREFORE, ANY ALTERATION OF THE GBL CONTRACT IN TERMS OF EXTENDING THE 2 -YEAR LIMITATION WOULD BE VOID. THE ARMY AGREES WITH THIS POINT.

CONDITION 7 ON THE REVERSE OF THE GBL READS:

7. IN CASE OF LOSS, DAMAGE, OR SHRINKAGE IN TRANSIT, THE RULES AND CONDITIONS GOVERNING COMMERCIAL SHIPMENTS SHALL NOT APPLY AS TO PERIOD WITHIN WHICH NOTICE THEREOF SHALL BE GIVEN THE CARRIERS OR TO PERIOD WITHIN WHICH CLAIM THEREFORE SHALL BE MADE OR SUIT INSTITUTED.

THE SHIPMENT HERE INVOLVED WAS TRANSPORTED UNDER THE AUTHORITY OF SEABOARD WORLD AIRLINES, INC., TARIFF C.A.B. NO. 19. RULE NO. 5 OF THIS TARIFF STATES THAT THE INTERNATIONAL CARGO RULES TARIFF NO. CR-1, C.A.B. NO. 5, IS THE GOVERNING TARIFF FOR APPLICABLE RULES AND REGULATIONS. C.A.B. NO. 5 CONTAINS ALL THE PROVISIONS OF THE CONVENTION INCLUDING THE TIME LIMITATION ON CLAIMS AND ACTIONS. IT LONG HAS BEEN THE POLICY OF THE CIVIL AERONAUTICS BOARD (CAB) TO STRICTLY ENFORCE DULY PUBLISHED TARIFFS AND THEIR REGULATIONS. IN TISHMAN & LIPP, INC. V. DELTA AIR LINES, 413 F.2D 1401 (2D CIR. 1969), THE COURT HELD THAT TARIFFS FILED WITH THE CAB, IF VALID, ARE CONCLUSIVE AND EXCLUSIVE, AND THAT THE RIGHTS AND LIABILITIES BETWEEN AIRLINES AND THEIR PASSENGERS ARE GOVERNED THEREBY. THIS CASE ALSO HELD THAT LIMITATIONS OF LIABILITY IN TARIFFS ARE BINDING ON PASSENGERS AND SHIPPERS WHETHER OR NOT THE LIMITATIONS ARE EMBODIED IN THE TRANSPORTATION DOCUMENTS. SEE, ALSO, VOGELSANG V. DELTA AIR LINES, INC., 302 F.2D 709 (2D CIR. 1962), CERT. DENIED 371 U.S. 826. IN SLICK AIRWAYS, INC. V. UNITED STATES, 292 F.2D 515, 154 CT. CL. 417 (1961), IT WAS HELD THAT TARIFFS FILED WITH THE CAB ARE BOTH CONCLUSIVE AND EXCLUSIVE AND MAY NOT BE ADDED TO THROUGH REFERENCE TO OUTSIDE CONTRACTS OR AGREEMENTS. UNDER THESE CIRCUMSTANCES, AND EVEN IF THE CONVENTION WERE NOT APPLICABLE IN AND OF ITSELF CONDITION 7 OF THE GBL WOULD NOT BE FOR APPLICATION IF THE CARRIER HAD ON FILE WITH THE CAB A TARIFF CONTAINING CONTRARY REGULATIONS. ARTICLE 29 OF THE CONVENTION APPLIES HERE AND NO CAUSE OF ACTION AT LAW WAS BROUGHT BY THE AIR FORCE AGAINST SEABOARD WORLD AIRLINES WITHIN THE REQUIRED 2 YEARS. ACCORDINGLY, THE CARRIER'S CLAIM FOR $722.48 WILL BE ALLOWED. WE ARE REFERRING THE AIR FORCE'S REQUEST FOR AN EXTENSION OF TIME BEYOND THE 6 MONTHS PERIOD TO OUR TRANSPORTATION AND CLAIMS DIVISION WITH THE RECOMMENDATION THAT A LONGER TIME BE CONSIDERED AS LONG AS THE 2-YEAR STATUTE OF LIMITATIONS IN THE CONVENTION CAN BE COMPLIED WITH. THE 7 DAY NOTICE PROVISION CANNOT BE WAIVED AS IT IS INCORPORATED IN THE CONVENTION.