Lam v. Aeroflot Russian Intern. Airlines, 94 Civ. 5931(WK).

• Citation: 999 F.Supp. 728
• Decision Date: 14 April 1998
• Docket Number: No. 94 Civ. 5931(WK).,94 Civ. 5931(WK).
• Parties: Grace LAM, Individually, and as Executrix of the Estate of Daniel Y. Lam, deceased, Plaintiff, v. AEROFLOT RUSSIAN INTERNATIONAL AIRLINES, Defendant.
• Court: U.S. District Court — Southern District of New York

999 F.Supp. 728

Grace LAM, Individually, and as Executrix of the Estate of Daniel Y. Lam, deceased, Plaintiff, v. AEROFLOT RUSSIAN INTERNATIONAL AIRLINES, Defendant.

No. 94 Civ. 5931(WK).

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

April 14, 1998.

COPYRIGHT MATERIAL OMITTED

James Kreindler, David Fiol, Kreindler & Kreindler, New York City, for Plaintiff.

Michael J. Holland, Condon & Forsyth, New York City, for Defendant.

OPINION & ORDER

WHITMAN KNAPP, Senior District Judge.

This is an action by Grace Lam, individually, and as executrix of the estate of her deceased husband, Daniel Lam, against Aeroflot Russian International Airlines. She seeks damages in excess of $10 million arising out of the death of her husband resulting from the crash of Aeroflot Flight No. SU593 in Novokuznetsk, Kemerovskaya Province, Russian Federation en route from Moscow to Hong Kong on March 22, 1994. Subject matter jurisdiction—or lack of it—is governed by a treaty of the United States, the Convention for the Unification of Certain Rules Relating to International Transportation by Air, concluded at Warsaw, Poland, October 12, 1929 ("Warsaw Convention"), as amended by the Hague Protocol of 1955. It is plaintiff's position that courts of the United States have such jurisdiction because the Aeroflot flight on which her husband met his death was a segment of his round-trip business tour beginning and ending in Denver.

The defendant, on the other hand, has moved for summary judgment, contending that since Aeroflot issued tickets only for a journey beginning and ending in Hong Kong, the courts of the United States have no jurisdiction. For reasons that follow, we deny defendant's motion.

BACKGROUND

In March 1994, Daniel Lam was a United States citizen who made his home in Denver, CO with his wife, the plaintiff in this action. In early 1994, he decided to take a business trip to several cities in China and Russia, ultimately returning to Denver. He intended and attempted to book his entire itinerary through his travel agent in Denver, Greenwood Travel. Lam asked Greenwood to book air travel from Denver to Hong Kong, Hong Kong to mainland China, China to Hong Kong, Hong Kong to Russia, Russia to Hong Kong, and finally Hong Kong to Denver.¹ Greenwood proceeded to book him on United Airlines from Denver to Hong Kong (and back), on Dragon Air from Hong Kong to mainland China (and back), and then attempted to book with Aeroflot the Hong Kong to Russia segment of the trip.

Due to what appears to have been a computer or communications problem with Aeroflot's ticketing system, Greenwood, an authorized agent for the issuance of tickets for flights on Aeroflot which regularly issued such tickets, proved unable to secure tickets on Aeroflot for the Hong Kong/Russia segment of the journey. When Greenwood called Aeroflot's United States office to attempt to remedy the problem, it was told that Lam should instead book the ticket through an overseas agent. Following that suggestion, Lam sent an "urgent" fax to Li Wah Shing, a travel agent in Hong Kong, in effect asking him to act as his agent and purchase tickets for the segment from Hong Kong to Russia and back. Agent Li obtained the needed Aeroflot tickets from Global Union Express (Hong Kong) Ltd. ("G.U.E."), the sole sales agent for Aeroflot in Hong Kong. The following is a reproduction of the ticket issued by G.U.E. at agent Li's request:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It will be observed that a box at the top of the ticket indicating "CONJUNCTION TICKETS" was left blank. Affidavits submitted by agent Li demonstrate that he was fully familiar with Lam's travel plans but was never asked about them during his dealings with G.U.E. In addition, agent Li's affidavit of November 15, 1995 contains a statement strongly suggesting that Aeroflot's agents in Hong Kong must have been aware that Lam's stop there was but one segment of a larger journey:

When Mr. Lam checked in for his flight from Hong Kong to Moscow, he was required to present his passport and visa to Aeroflot's check-in agents, Cathay Pacific Airlines. Had they checked his passport and visa as they were supposed to do, they would have been on notice that he was from the United States and not Hong Kong. When Daniel [Lam] entered Hong Kong, the Immigration Department here would have stamped on his arrival/departure "Immigration Card" that he was permitted to stay in Hong Kong for 3 (or 6) months and this card was affixed to his passport available for the inspection of Aeroflot's check-in agent.

Li Aff., ¶ 9.

Plaintiff has submitted evidence indicating that it was Aeroflot's policy to ask purchasers, at the time when Aeroflot tickets were being issued, if the proposed passengers were flying on any other airlines in conjunction with the Aeroflot segment of their journey. G.U.E. never asked agent Li any such question.

DISCUSSION

The parties agree that plaintiff's claims against Aeroflot are governed exclusively by the terms and conditions of the Warsaw Convention. See note following 49 U.S.C. § 1502. The issue before us is whether or not that treaty confers subject matter jurisdiction in this action.

A. Warsaw Convention

Article 28(1) of the Warsaw Convention sets forth four forums in which actions arising out of "international transportation", as defined in the treaty, may be brought:

An action for damages must be brought, at the option of the plaintiff, in the territory of one of the [signatory nations], 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.

In any of these four places, a court has subject matter jurisdiction over a suit against a carrier. In re Alleged Food Poisoning Incident, March 1984 (2d Cir.1985) 770 F.2d 3, 5 n. 2. The parties to this action agree that the "domicile of the carrier" and the "principal place of business of the carrier" are each in Russia, and therefore cannot be the basis for jurisdiction in the United States. The question before us thus revolves around the last two prongs of the treaty: (1) carrier's "place of business through which the contract has been made"; and (2) the "place of destination."

1. "Place of business through which the contract has been made"

Plaintiff's counsel argues that the contract of carriage was formed when Lam sent a fax to agent Li agreeing to purchase the tickets on Aeroflot's terms. In making this assertion, they expect us to draw the conclusion that the contract was entered into within the United States. This argument is flawed in that the agreement to purchase the tickets was effectuated by agent Li with G.U.E., not by Lam with agent Li.

Case law supports the view that the "place of business through which the contract has been made" is the place where the passenger ticket was issued. See Stanford v. Kuwait Airways Corporation, et al. (S.D.N.Y.1986) 648 F.Supp. 657, 661 (contract was made where decedents' airline tickets were purchased and issued); Smith v. Canadian Pacific Airways, Ltd. (2d Cir. 1971) 452 F.2d 798, 803 (jurisdiction [under this prong] not proper where the ticket was purchased outside the United States and no United States contacts, including but not limited to interline or intraline ticketing arrangements, existed beyond the presence of a ticketing and booking office of the carrier-defendant). Since Li, acting as Lam's agent, purchased the tickets from Aeroflot in Hong Kong, jurisdiction cannot be claimed under this prong.

2. "Place of destination"

The "Place of destination" of a journey, as contemplated by the Warsaw Convention, is determined by reference to the intent of the parties. In re Alleged Food Poisoning, supra, 770 F.2d at 5. If the parties have regarded the transportation as an undivided round-trip journey, the existence of various stops on successive carriers does not alter the fact that the end of the trip is the "place of destination." Id. at 6. Thus the ultimate "destination," and not any "agreed stopping place," controls for purposes of jurisdiction under the rubric of the Convention. Id. In the cited case the injured passenger, who was traveling on a ticket from London to Washington, D.C., claimed the United States as a proper forum for his suit. The court rejected his assertion on a finding that although the London to Washington ticket was the only one issued by the carrier being sued, it was one of several tickets used by the passenger on his round trip journey to and from Riyadh, Saudi Arabia. Id.

The record before us conclusively establishes that Lam, just as the passenger in In re Alleged Food Poisoning, had embarked upon a round trip journey...