Vergara v. Aeroflot" Soviet Airlines", Civ. No. 74-0-31.
| Decision Date | 05 March 1975 |
| Docket Number | Civ. No. 74-0-31. |
| Parties | Jose O. VERGARA and Esther Vergara, Plaintiffs, v. AEROFLOT "SOVIET AIRLINES", (GENERAL DEPARTMENT OF INTERNATIONAL AIR SERVICES, UNION OF SOVIET SOCIALISTIC REPUBLICS), Defendant. |
| Court | U.S. District Court — District of Nebraska |
J. Michael Gottschalk, Omaha, Neb., for plaintiffs.
Charles P. Fike, Omaha, Neb., for defendant.
This matter comes before the Court on defendant's motion to dismiss Filing #3. Due to the complex issues involved, a full recitation of the facts is necessary.
Dr. and Mrs. Jose O. Vergara ("Plaintiffs") are citizens of the United States and residents of Omaha, Nebraska. In June, 1973, they contacted Nancy O'Leary, an employee of Bock Omaha Travel Agency, Inc. ("Bock") and requested assistance in making the necessary arrangements for a trip around the world. After a series of consultations, the necessary reservations and other arrangements were completed. On June 28, 1973, Dr. Vergara met with Nancy O'Leary in the Back offices located in Omaha. At that time, she gave him a series of airline flight coupon booklets ("Tickets") in exchange for his payment of the full amount required.
The Tickets consisted of twelve booklets, six of which referred to each plaintiff. Each booklet bore one of the numbers 8304 939 148 through 8304 939 159, inclusive, and each contained four identical coupons bearing the same number as the booklet itself. The following items of information appeared on the face of each of the 48 separate coupons delivered to the plaintiffs by Bock: The numbers of each of the other five booklets issued to each plaintiff; the fare for the entire journey; the number of the credit account by which payment was made; Omaha was designated as the place of origin and the place of destination; plaintiffs' entire itinerary; Bock was identified as the agency issuing the coupon; the statements, "Subject to conditions of contract on passenger's coupon" and "Passenger ticket and baggage check issued by Pan Am" were present in the lower right portion; and, information sufficient to identify at least two segments of the journey, including fare basis, air carrier, flight number, date and time of departure and reservation status, was provided. Each booklet also contained two extensive references to the Warsaw Convention.
Plaintiffs' Itinerary was to be as follows:
From To Airline Date
Omaha Chicago United June 29
Chicago San Juan Eastern June 30
San Juan Paris Avianca July 2
Paris Berlin Air France July 5
Berlin Leningrad Aeroflot July 10
Leningrad Moscow Aeroflot July 13
Moscow Tashkent Aeroflot July 17
Tashkent Kabul Ariana Afghan July 18
Kabul Delhi Ariana Afghan July 19
Delhi Hong Kong Pan Am July 20
Hong Kong Osaka Cathy Pacific July 20
Osaka Tokyo Open Open
Tokyo Honolulu Open Open
Honolulu San Francisco Open Open
San Francisco Las Vegas Open Open
Las Vegas Denver Open Open
Denver Omaha Open Open
The plaintiffs' trip was uneventful until they arrived at the airport in Tashkent on July 18, where they were informed that they could not continue to Kabul. Apparently there was a revolution in progress in Kabul and the scheduled carrier, Ariana Airlines was therefore not flying into or out of that city. In the course of several discussions with an Intourist Guide, the plaintiffs decided to fly from Tashkent to Karachi via Aeroflot, and then from Karachi to Osaka via Air France. By this route, they hoped to resume their itinerary with a minimum of delay and confusion. At the guide's direction, plaintiffs left the airport and went to an office in Tashkent, where a supervisor removed two coupons from each of their two ticket books. Upon returning to the airport, the guide gave the plaintiffs new Aeroflot tickets which were subsequently relinquished to the Aeroflot stewardess while en route to Karachi. When the flight arrived at Karachi, the plaintiffs were allegedly forcibly detained at a remote terminal, due to Aeroflot's failure to obtain permission to enter Pakistani air space.
As the facts related above indicate, this case involves an "international" flight governed by the Warsaw Convention, 49 Stat. 3000 (1934). The Court is therefore presented with numerous jurisdictional issues relating to the proper interpretation of Article 28 of the Convention, which states as follows:
This article has caused considerable confusion in the past, but more recently it has been held to require a federal court to undertake a three pronged test. A plaintiff must first establish that courts in the United States have "treaty jurisdiction." To do so, one of the four conditions specified in Article 28 must be satisfied. Then the plaintiff must show federal jurisdiction over the subject matter of the lawsuit. Finally, the defendant must be subject to personal jurisdiction within the district in which the suit was brought. Smith v. Canadian Pacific Airways Ltd., 452 F.2d 798 (2 Cir. 1971); Analyzed in Note, 13 Harv.Intl.L.J. 518 (1972).
Turning now to the issue of treaty jurisdiction, clearly the courts of the United States have no jurisdiction pursuant to the "domicile of the carrier" or principal place of business of the carrier. Plaintiffs contend that Omaha (and a fortiori the United States) was the "place of destination." The cases uniformly hold that in a trip consisting of several parts it is the ultimate destination that is accorded treaty jurisdiction. Felsenfeld v. Societe Anonyme Belge D'Exploitation, 234 N.Y.S.2d 351 (Cty.Civ.Ct.1962); Berner v. United Airlines, 2 Misc.2d 260, 149 N.Y.S.2d 335; Burdell v. Canadian Pacific Airlines, Ltd., 11 Av.L. 17,351 (1969). See, also, A. Lowenfeld, Some Comments on Burdell v. Canadian Pacific Airlines, 3 Vand.L.J. 47 (1969).
When the original tickets were issued, Omaha was to be the final destination. The defendant contends that the change of plans in Tashkent terminated the original contract of transportation and created two new contracts—one from Tashkent to Karachi to Osaka, the other being from Osaka to Omaha with various stops. On this issue, the plaintiffs contend that the contract of carriage was merely modified and the final destination (Omaha) remained unchanged. The cases and authorities cited by the parties on the issue of modification, while helpful, are not particularly on point. Significantly, the Tashkent to Karachi trip was arranged by the defendant in an effort to permit the plaintiffs to continue their scheduled trip. Aeroflot was aware of the ultimate destination, as well as the intermediate stops. The rearranging of schedules due to missed or...
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