This treatment of Circle comports with federal aviation law, which historically has recognized two classes of carriers, direct and indirect. See DHL Corp. v. C.A.B., 584 F.2d 914, 915 (9th Cir. 1978); C.A.B. v. Carefree Travel, Inc., 513 F.2d 375, 387 (2d Cir. 1975); Monarch Travel Services, Inc. v. Associated Cultural Clubs, Inc., 466 F.2d 552, 554 (9th Cir. 1972); Railway Exp. Agency, Inc. v. C.A.B., 120 U.S. App. D.C. 228, 345 F.2d 445, 448-450 (D.C. Cir. 1965); see also C.A.B. v. Aeromatic Travel Corp., 489 F.2d 251 (2d Cir. 1973) (distinguishing generally between direct and indirect carriers). Ordinarily, direct carriers perform the actual transportation, while indirect carriers provide supportive services, including procuring and assembling cargo for shipment, consolidating multiple shipments into a single shipment for carriage, and arranging transportation with the direct carrier. See DHL Corp., 584 F.2d at 915.
Courts have borrowed the concept of indirect and direct carrier classes from domestic federal aviation law and incorporated it into the realm of the Warsaw Convention. In Royal Insurance this court determined that an air freight forwarder was an indirect carrier and, therefore, could invoke the same limited liability protection afforded under the Warsaw Convention to direct air carriers. See Royal Insurance, 654 F. Supp. at 682; see also Confeccoes Texteis de Vouzela, LDA. v. Space Tech Systems Inc., 972 F.2d 1338, No. 91-35047, 1992 WL 170964, at *2-3 (9th Cir. July 22, 1992) (holding that freight forwarder that had arranged air transportation of cargo aboard actual air carrier was indirect carrier under Warsaw Convention); Hitachi Data Systems Corp. v. Nippon Cargo Airlines Co., Ltd., 1995 U.S. Dist. LEXIS 333, No. C-93-2456, 1995 WL 16923, at *5-6 (N.D. Cal. Jan. 6, 1995) (same); Pan American World Airways, Inc. v. C.F. Airfreight, Inc., 1990 U.S. Dist. LEXIS 17473, No. 89 Civ. 4182, 1990 WL 240947, at *1 (S.D.N.Y. Dec. 28, 1990) (Griesa, J.) (concluding that air freight forwarder was a carrier within the meaning of the Convention). Cf. Sega of America, Inc. v. A.M. Exp. Freight, Inc., 1995 U.S. Dist. LEXIS 14316, Nos. 92 Civ. 5838, 92 Civ. 8382, 1995 WL 577784, at *3 (S.D.N.Y. Sept. 29, 1995) (Martin, J.) (observing that agents of freight forwarders may qualify for liability limitations under Warsaw Convention). In short, for purposes of being a carrier, it is insignificant that Circle did not actually transport the cargo, either by air or otherwise, since an indirect air carrier by definition need not be involved in the physical transportation of the goods.
Thus, the question remains whether Circle as a "carrier" and as apparently the "first" to deal with General Electric by arranging shipment of its equipment is nevertheless precluded from being a "first carrier" specifically under Article 8(e) because it never actually transported the goods. Preciously few cases have addressed this narrow question.
Regrettably, the text of the Convention offers little guidance for resolving this question. Nowhere does the Convention define "first carrier." Nor are any of the Convention's other provisions helpful. The phrase appears in relevant part
only once again in Article 30(3), which states that
as regards baggage or goods, the passenger or consignor shall have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery shall have a right of action against the last carrier, and further, each may take action against the carrier who performed the transportation during which the destruction, loss, damage, or delay took place.