572 F.2d 913 (2nd Cir. 1978), 111, Benjamins v. British European Airways

Docket Nº:111, Docket 77-7201.
Citation:572 F.2d 913
Party Name:Abraham BENJAMINS, as Personal Representative of the Estate of Hilde Benjamins, Deceased, Plaintiff-Appellant, v. BRITISH EUROPEAN AIRWAYS, Hawker Siddeley Aviation, Ltd., and Hawker Siddeley Group, Ltd., Defendants-Appellees.
Case Date:March 06, 1978
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 913

572 F.2d 913 (2nd Cir. 1978)

Abraham BENJAMINS, as Personal Representative of the Estate

of Hilde Benjamins, Deceased, Plaintiff-Appellant,


BRITISH EUROPEAN AIRWAYS, Hawker Siddeley Aviation, Ltd.,

and Hawker Siddeley Group, Ltd., Defendants-Appellees.

No. 111, Docket 77-7201.

United States Court of Appeals, Second Circuit

March 6, 1978

Argued Oct. 21, 1977.

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Ronald L. M. Goldman, Marina del Rey, Cal. (Ronald L. M. Goldman & Associates, Marina del Rey, Cal., on brief), for plaintiff-appellant.

George N. Tompkins, Jr., New York City (Condon & Forsyth, Ronald E. Pace and Michael J. Holland, New York City, on brief), for defendant-appellee British European Airways.

James J. Finnerty, Jr., New York City (Mendes & Mount, New York City, on brief), for defendant-appellee Hawker Siddeley Aviation, Ltd.


LUMBARD, Circuit Judge:

This appeal, arising out of the death of Hilde Benjamins in the air crash disaster at Staines, England, on June 18, 1972, once again presents us with the much-discussed question whether the Warsaw Convention 1 creates a cause of action. The District Court for the Eastern District dismissed the complaint herein, believing itself bound by our prior decisions 2 to answer that question in the negative. We reverse.


On June 18, 1972, a Trident 1 Jet Aircraft designed and manufactured by Hawker Siddeley Aviation, Ltd. ("HSA"), and owned and operated by British European Airways ("BEA") took off for Brussels from London's Heathrow Airport. Soon thereafter, the plane stalled and crashed into a field, killing all 112 passengers, including Hilde Benjamins. Hilde Benjamins was survived by her husband Abraham; both were Dutch citizens permanently residing in California. BEA and HSA are British corporations with their principal places of business in the United Kingdom. The ticket on which Hilde Benjamins was travelling had been purchased in Los Angeles, and clearly provided "international transportation" within the meaning of Article 1 of the Convention. Therefore, since the United States and the United Kingdom are both High Contracting Parties, the Convention is applicable to this proceeding.

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This suit for wrongful death and baggage loss was brought in April of 1974 in the Eastern District of New York by Abraham Benjamins, as representative of his widow's estate, on behalf of himself and the children of the marriage. Benjamins' action was consolidated with a number of others arising out of the same incident, and assigned to Judge Weinstein. In re Air Crash Disaster at Staines, England, MDL No. 147 (J.P.M.D.L.). The major allegations in the complaint invoked Articles 17 and 18 of the Convention. These read, in relevant part, as follows:

Article 17. The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Article 18(1). The carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air.

Dismissed once for lack of subject matter jurisdiction only diversity was originally alleged the complaint was amended to invoke 28 U.S.C. §§ 1331 and 1350 as well. 3 After both sides had submitted briefs, Judge Weinstein ruled that this suit did not "arise" under a treaty of the United States, as § 1331 requires; he relied on Second Circuit precedent indicating that the Convention does not create a cause of action, but only establishes conditions for a cause of action created by domestic law. This appeal followed.


The first question we address 4 is whether any court in this country has jurisdiction in the "international or treaty sense." Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 800 (2d Cir. 1971). Only then may we consider "the power of a particular United States court, under federal statutes and practice, to hear a Warsaw Convention case jurisdiction in the domestic law sense." Id.

Jurisdiction in the treaty sense is determined by Article 28(1) of the Convention, which provides that

(a)n 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.

The third alternative of Article 28(1) is satisfied in this case: the ticket which constituted the contract of carriage was purchased in Los Angeles, through BEA. The fourth alternative appears also to fit, as decedent's round-trip ticket provided for an ultimate destination in the United States.

Nonetheless, courts in the United States, and particularly the federal courts, are not the only possible forum for Abraham Benjamins. The courts of England are open to his suit permitted by the first and second alternatives of Article 28(1) as are the state courts of California. 5 Plaintiff's burden is not met by a showing that Article 28(1) permits some court of this country to hear his complaint; he must further show that some jurisdictional statute permits a federal court to do so.


The two bases for federal jurisdiction pleaded in Benjamins' amended complaint

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are the Alien Tort Claims Act, 28 U.S.C. § 1350, 6 and a general federal question "arising under" a treaty.

The Alien Tort Claims Act does not provide a basis for jurisdiction over this action. Without having to discuss the question of whether the wrongful death action against a carrier is essentially one in tort or in contract, we are satisfied that Benjamins' complaint alleges a violation of neither the law of nations nor any treaty of the United States.

The Convention itself does not seek to outlaw accidents, crashes and other events causing death, injury or property loss. Rather, it sets forth the terms under which victims of such events may recover their damages. Airlines do not "violate" the Convention when they crash even if their negligence was "wilful" but only when they fail to compensate victims who are adjudged to be appropriate recipients of damages. The fact that a claimant must bring an action to recover does not constitute a violation by the carrier of its obligations.

Nor do the acts alleged violate the law of nations under the standards we set in IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975): "a violation . . . of those standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealings inter se." See Dreyfus v. Von Finck, 534 F.2d 24, 30-31 (2d Cir. 1976). This law does not include a prohibition of air crashes.


Accordingly, we must determine whether any of the causes of action pleaded by Benjamins "arise under" the Warsaw Convention. It is true that in the past we have said that the Warsaw Convention does not create a cause of action. We believe, however, that a re-examination of the question requires a different answer.


At the time the United States adhered to the Convention, it seemed obvious to all that the Convention created causes of action for wrongful death or personal injury (Article 17), and for damage to baggage (Article 18). One court went so far as to say, "If the Convention did not create a cause of action in Art. 17, it is difficult to understand just what Art. 17 did do." Salamon v. Koninklijke Luchtvaart Maatschappij, N.V., 107 N.Y.S.2d 768, 773 (Sup.Ct.1951), aff'd mem., 281 A.D. 965, 120 N.Y.S.2d 917 (1st Dept. 1953). 7

The view that the Convention does not create a cause of action is, in large part, attributable to two cases we decided in the 1950s, Komlos v. Compagnie Nationale Air France, 209 F.2d 436 (2d Cir. 1953), rev'g on other grounds, 111 F.Supp. 393 (S.D.N.Y.1952), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954), and Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957):

The Second Circuit had spoken twice, the Supreme Court had denied certiorari, and in all subsequent American Warsaw cases it was either assumed or decided that the claim must be founded on some law other than the Convention itself.

Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497, 519 (1967).

The analysis on which this structure of holding rests is to be found in Judge Leibell's opinion for the district court in Komlos. In determining whether a cause of action had been assigned to an insurer or remained the property of an estate, Judge Leibell held that the action envisioned by

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Article 17 was one created by domestic law, except in cases where the forum provided no analogous action. 111 F.Supp. at 401-02.

Judge Leibell relied heavily on a letter sent by Secretary of State Cordell Hull to President Roosevelt on March 31, 1934, recommending adherence to the Convention. In the course of a lengthy discussion of the benefits of adherence, Hull wrote:

The effect of article 17 (ch. III) of the Convention is to create a presumption of liability against the aerial carrier on the mere happening of an accident...

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