Pardonnet v. Flying Tiger Line, Inc., 63 C 67.

• Decision Date: 19 June 1964
• Docket Number: No. 63 C 67.,63 C 67.
• Parties: Phyllis D. PARDONNET, Administratrix of the Estate of Charles William Pardonnet, Deceased, Libelant, v. The FLYING TIGER LINE, INC., Respondent.
• Court: U.S. District Court — Northern District of Illinois

233 F. Supp. 683

Phyllis D. PARDONNET, Administratrix of the Estate of Charles William Pardonnet, Deceased, Libelant, v. The FLYING TIGER LINE, INC., Respondent.

No. 63 C 67.

United States District Court N. D. Illinois, W. D.

June 19, 1964.

Cool & Phillips, Colorado Springs, Colo., for libelant.

William H. Schrader, Heineke, Conklin & Schrader, Chicago, Ill., for respondent.

DECKER, District Judge.

This case involves a libel in admiralty, filed by the personal representative of a deceased, who was killed in an air line crash on the high seas. This Court has jurisdiction under an act entitled, "Death on the High Seas by Wrongful Act," 46 U.S.C. § 761.

Respondent has filed a special appearance and exception to the jurisdiction of this Court on the ground that the Warsaw Convention, 49 Stat. 3000, a treaty to which the United States is a party, provides that the only United States court which could have jurisdiction of this cause of action is in California. Specifically, the respondent contends that Article 28 of the Convention deprives this Court of jurisdiction. Article 28 provides as follows:

"(1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination. "(2) Questions of procedure shall be governed by the law of the court to which the case is submitted."

On the wording of this Article the respondent argues that since this Court is neither the court of the carrier's domicile, nor the court where the carrier has its principal place of business, nor the court where the carrier has a place of business through which the contract of carriage has been made, nor the court of the place of destination of the flight, that this Court is without jurisdiction and must dismiss the libel.

For the purpose of disposing of respondent's exception to jurisdiction, the parties have agreed to a statement of facts in this case. It has been stipulated that the respondent, The Flying Tiger Line, Inc., is a Delaware corporation, having its principal place of business in Burbank, California. On October 1, 1961, a written agreement, a "Call Agreement," was entered into between the respondent and the Air Force Department of the United States of America. Pursuant to the Call Agreement, a service order dated March 2, 1962, was issued by the United States Air Force to the respondent at Burbank, California, and under which respondent agreed to transport United States military personnel from Travis Air Force Base, California, to Saigon, Viet Nam. On March 14, 1962, one of respondent's aircraft began operating as a Military Air Transport Service Charter Flight 739/14. At all times material to this libel respondent owned the aircraft in question, Lockheed Model 1049H, U. S. Registry License N6921C.

Prior to boarding the flight in question, each of the ninety-six United States military personnel was handed a boarding ticket at Travis Air Force Base by an employee of the respondent, The Flying Tiger Line, Inc., each with his own name thereon. Each of these boarding tickets showed that the departure of the flight in question was from Travis Air Force Base, California, with destination, Saigon, Viet Nam. Charles William Pardonnet, libelant's deceased, was issued one of the above-mentioned boarding tickets.

Aboard the flight in question were one plane captain, two co-pilots, two flight engineers, two navigators and four stewardesses (all employed by the respondent, The Flying Tiger Line, Inc.) and ninety-six United States military personnel, including Charles William Pardonnet, libelant's deceased. It was agreed between the respondent and the Air Force that money would be paid to the respondent by the United States of America covering the passage of the ninety-six United States military personnel from Travis Air Force Base to Saigon, Viet Nam. Subsequent to the departure of the flight in question from Agana, Guam, on March 15, 1962, the aircraft disappeared and has never been found.

The United States adhered to the Warsaw Convention on October 29, 1934, and Viet Nam adhered to the Convention on September 29, 1958.

The sole question before this Court is: If the Warsaw Convention does apply, are the provisions of Article 28(1) of the Warsaw Convention such that they prevent the jurisdiction of this Court from attaching to a suit brought under the Death on the High Seas Act when the respondent has neither its principal place of business, its domicile nor the place of business through which the contract of carriage of the libelant's deceased was made, in the Northern District of Illinois, and further when the Northern District of Illinois was not the place of destination of the flight in question?

It is not appropriate at this point to pass upon the question of whether the Warsaw Convention applies so as to limit the damages recoverable for wrongful death to $8,300.00. The parties have extensively briefed this point, but its resolution may appropriately wait until a later stage of the proceedings when the merits are at issue.

The issue is rather whether, regardless of the application of the Warsaw Convention, this Court has jurisdiction. The respondent bases its argument that this Court lacks jurisdiction solely on the theory that the Warsaw Convention applies, and by the provision of Article 28(1) bars the jurisdiction of this Court. Therefore, assuming, for the purposes of the jurisdictional question only, that the Warsaw Convention does apply, the question is does its application bar this Court from jurisdiction?

In this case it is clear that the domicile of the respondent is Delaware and its principal place of business is Burbank, California. It is also clear that the place where the respondent has a place of business through which the contract has been made is also in Burbank, California. There is no dispute that the destination of the flight in question was South Viet Nam. None of the four forums mentioned in Article 28 of the Warsaw Convention lies in the Northern District of Illinois.

In Martino v. Trans World Airlines, Inc., filed in this Court (60 C 1730), Judge Edwin A. Robson dismissed a lawsuit very similar to the one at bar because there the defendant airline was a Delaware corporation, with its principal place of business in Kansas City, Missouri, and the place of business of the defendant where the contract for a round trip was entered into was in Washington, D. C. Judge Robson specifically found that none of the four permissible alternative situs of jurisdiction existed there.

Two recent law review articles have explored this point, and both have come to the conclusion that Article 28(1) of the Warsaw Convention should be interpreted on a "national basis"; that the four forums or situs for a lawsuit mentioned in Article 28(1) should not be considered jurisdictional as far as United States Courts are concerned but rather that each of the four should only refer to the nation in which the lawsuit must be brought under the Convention. The articles are found in 29 Journal of Air Law and Commerce, 205, 226 et seq. (1963); and Charles E. Robbins, Jurisdiction under Article 28 of the Warsaw Convention, 9 McGill L.J. 352 (1963).

The United States has not adopted a statute implementing the Warsaw Convention or Treaty. If this had been done, and if a provision like Article 28(1) had been reproduced in that statute, the argument that Congress had meant to limit domestic jurisdiction to the four situs specified in Article 28(1) would be more persuasive. However, it seems doubtful that the drafters of the Warsaw Convention, almost all of whom were from civil law, not common law, countries, and only a small number of whom were from countries which have a federal court system similar to that in the United States, would be concerned at all with the internal operations of the judicial system of any particular nation. Thus, it seems the better construction of Article 28(1) of the Warsaw Convention to read each of the four situs mentioned as referring only to the nation in which the suit may be brought but not to a particular court within a nation.

Under this interpretation of the Convention, libelant could bring her suit in either the United States or in South Viet Nam. The particular court in either...