915 F.2d 1351 (9th Cir. 1990), 88-15420, TAAG Linhas Aereas de Angola v. Transamerica Airlines, Inc.

Docket Nº:88-15420.
Citation:915 F.2d 1351
Party Name:TAAG LINHAS AEREAS de ANGOLA, Plaintiff-Appellant, v. TRANSAMERICA AIRLINES, INC., Transamerica Corporation, H.K. Howard, William Maier, Joseph Murphy, Eric J. Korth, Defendants-Appellees.
Case Date:October 03, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1351

915 F.2d 1351 (9th Cir. 1990)

TAAG LINHAS AEREAS de ANGOLA, Plaintiff-Appellant,

v.

TRANSAMERICA AIRLINES, INC., Transamerica Corporation, H.K.

Howard, William Maier, Joseph Murphy, Eric J.

Korth, Defendants-Appellees.

No. 88-15420.

United States Court of Appeals, Ninth Circuit

October 3, 1990

Argued and Submitted Nov. 13, 1989.

As Amended Dec. 27, 1990.

Page 1352

Thomas F. Doyle, San Francisco, Cal., for plaintiff-appellant.

Joseph P. Mascovich, Crosby, Heafey, Roach & May, Oakland, Cal., for defendant-appellee Transamerica Corp.

Morris J. Baller, Marron, Reid & Sheehy, San Francisco, Cal., for defendants-appellees Transamerica Airlines, Inc., H.K. Howard, William Maier, Joseph Murphy and Eric J. Korth.

Appeal from the United States District Court for the Northern District of California.

Before CHAMBERS, POOLE and WIGGINS, Circuit Judges.

POOLE, Circuit Judge:

TAAG Linhas Aereas de Angola, a third-party beneficiary under an air-transport agreement, appeals from a grant of a motion to dismiss pursuant to a forum selection clause requiring actions arising out of the agreement to be brought in Switzerland. Claiming that defendants-appellees, Transamerica Airlines, Inc., its parent, Transamerica Corporation, and several of its officers, failed to pay commissions due under the agreement, TAAG brought suit in United States District Court. Defendants' motion to dismiss was granted on the ground that, because of the forum selection clause, the district court lacked jurisdiction to hear the dispute. TAAG argues that enforcement of the forum selection clause is unreasonable under the circumstances of this action.

FACTS

TAAG is the national airline of Angola. In 1981 it merged with another airline, Consorcio Tecnico de Aeronautica (CTA), and assumed all of CTA's assets and liabilities, including its rights under a 1977 air-transport agreement between Compania de Diamantes de Angola (Diamantes), a privately-owned diamond-mining company, and Trans International Airlines, predecessor to Transamerica Airlines, Inc., a United States corporation with offices in Oakland, California.

The air-transport agreement provided that Diamantes would pay Transamerica Airlines for air-transport services at an hourly rate and reimburse Transamerica Airlines for certain costs incurred during performance of the agreement. In addition, the agreement provided that Transamerica Airlines was to pay CTA, on a monthly basis, a five-percent commission based on total hours flown. Article IV.4. Elsewhere in the agreement, there was some indication that the amount of this commission was intended to be paid by Diamantes to Transamerica Airlines as one of the reimbursable costs. Article XV. The agreement also contained a forum selection clause:

This Agreement shall be construed in accordance with the laws of the Swiss Confederation and any action arising out of this Agreement or the execution or performance thereof shall be brought in the City of Berne in Switzerland. Alternatively the parties may agree that any differences regarding the implementation of this Agreement be submitted to arbitration by a single arbitrator to be appointed by the International Chamber of Commerce in Paris.

Article XVI.

TAAG now alleges that although Diamantes paid the five-percent commission to Transamerica Airlines, Transamerica failed to pay it to TAAG after...

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