In re Air Crash Disaster at Malaga, Spain, 83 C 1264

• Decision Date: 30 January 1984
• Docket Number: No. 83 C 1264,83 C 1468. MDL 530.,83 C 1264
• Citation: 577 F. Supp. 1013
• Parties: In re AIR CRASH DISASTER AT MALAGA, SPAIN ON SEPTEMBER 13, 1982. This Order Relates to: Lazcano, 83 C 1264, Araque 83 C 1468.
• Court: U.S. District Court — Eastern District of New York

577 F. Supp. 1013

In re AIR CRASH DISASTER AT MALAGA, SPAIN ON SEPTEMBER 13, 1982.

This Order Relates to:

Lazcano, 83 C 1264, Araque 83 C 1468.

Nos. 83 C 1264, 83 C 1468. MDL 530.

United States District Court, E.D. New York.

January 30, 1984.

Speiser & Krause, P.C., New York City (Frank H. Granito, Jr., New York City, of counsel), for Lazcano's heirs.

Mel Sachs, New York City, for plaintiff Araque.

Condon & Forsyth, New York City (Michael J. Holland, New York City, of counsel), for defendant Spantax, S.A.

MEMORANDUM AND ORDER

NICKERSON, District Judge.

Defendant Spantax, S.A. (Spantax) moves to dismiss the Lazcano and Araque complaints for lack of subject matter jurisdiction under Article 28 of the Warsaw Convention, which all parties agree governs.

Article 28(1) sets forth four places only where suit may be brought. Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 800 (2d Cir.1971). They are the domicile of the carrier, its principal place of business, its place of business through which the contract has been made, and the place of destination. Plaintiffs concede that Spantax's domicile and principal place of business and the places of contracting are in Spain. This dispute is over the definition of "place of destination."

Spantax claims that both Lazcano and Araque entered into contracts for carriage for travel from Spain to New York and back to Spain, and that, although the airplane crashed on its take-off for New York, the "ultimate destination" was Spain. Spantax has submitted copies of the tickets purchased showing Madrid, Spain to be the final destination.

Lazcano's heirs argue that Spantax issued to him not a round-trip ticket but two separate one-way tickets, one for the flight of Madrid to Malaga to New York, the other for New York to Madrid. He was traveling from Malaga to New York when the crash occurred. Plaintiffs also argue that the "planned destination" of the ill-fated flight is sufficient to give jurisdiction.

Spantax says that Lazcano received two tickets rather than a single round-trip ticket because its clerk had in his possession "passenger ticket and baggage checks ... with only two passenger coupons," Pascual affidavit ¶ 4, an insufficient number for the series of flights. Plaintiffs object to any reliance on the affidavit calling its recital of a direction given Pascual by the president of Spantax hearsay, and its recounting of the transaction with the decedent incompetent under New York's Dead Man Statute, N.Y.Civ.Prac.Law § 4519.

Araque asserts that, regardless of what her ticket read, she purchased only a one-way ticket from Madrid to New York. Her affidavit states that she lives in New York, took a vacation in Spain from June to September, and had no intention of returning to Madrid. She paid approximately $200 for her return flight to New York, presumably the price of a one-way ticket.

The Second Circuit has stated that "for Article 28 purposes it is the `ultimate' destination listed in the contract for carriage that controls." Gayda v. LOT Polish Airlines, 702 F.2d 424, 425 (2d Cir.1983). In that case, the decedent's passenger ticket was for a Poland to New York to Poland trip, and plaintiffs conceded that Poland was the destination of the contract of carriage. In determining that the stop in New York was not significant, the Court of Appeals cited Butz v. British Airways, 421 F.Supp. 127 (E.D.Pa....