Barkanic v. General Admin. of Civil Aviation of Peoples Republic of China, 881
| Citation | 822 F.2d 11 |
| Decision Date | 29 June 1987 |
| Docket Number | No. 881,D,881 |
| Parties | Louise Agnes BARKANIC, Individually and as Personal Representative of the Estate of Peter Patrick Barkanic, Deceased, Gladys Patricia Fox, Individually and as Personal Representative of the Estate of Donald Branford Fox, Deceased, Appellants, v. GENERAL ADMINISTRATION OF CIVIL AVIATION OF the PEOPLES REPUBLIC OF CHINA, a/k/a Civil Aviation Administration of the Peoples Republic of China or CAAC, Appellee. ocket 86-7985. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Daniel F. Hayes, Salibello, Hayes & Zahn, New York City, for appellants.
John K. Weir, Haight, Gardner, Poor & Havens, New York City (Louis R. Martinez, of counsel), for appellee.
Before OAKES and WINTER, Circuit Judges, and ZAMPANO, District Judge. *
This case involves a question of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. Sec. 1605(a)(2). Representatives of the estates of Peter Barkanic and Donald Fox who were killed in the crash of a China Airlines plane enroute from Nanjing to Beijing, China, on January 18, 1985, brought this wrongful death action against CAAC, an agent of the Peoples Republic of China providing domestic and international air services to passengers traveling in, to, and from China. The United States District Court for the Eastern District of New York, Charles P. Sifton, Judge, dismissed their claims on the ground that the court lacked subject matter jurisdiction under the FSIA. We reverse.
CAAC was authorized to operate in the United States by the Civil Aeronautics Board in 1980. The authorization allowed CAAC to engage in scheduled foreign air transportation of persons between the coterminal points of Beijing and Shanghai in the Peoples Republic of China; the intermediate point Tokyo (or another point in Japan); and the coterminal points Honolulu, Los Angeles, San Francisco, and New York, with an optional technical stop at Anchorage. Attached to the CAB permit was a waiver of any defense of sovereign immunity from suit "based upon any claim arising out of operations by the holder under this permit." As originally granted, however, the CAB permit to CAAC did not cover the entirely domestic flight between the terminal points Beijing and Nanjing in China.
Since being issued the CAB permit CAAC has continued regularly scheduled flight operations into and out of San Francisco, Los Angeles, and New York, carrying passengers and freight for hire and making its schedules available to the traveling public. It maintains its own employees and offices at two locations in New York which are listed in public telephone directories. In addition, on November 18, 1980, CAAC entered into a bilateral interline traffic agreement with Pan American World Airways and a general sales agency agreement whereby Pan American was to act as general sales agent for CAAC in the United States and CAAC was to act as general sales agent for Pan American in the Peoples Republic of China. Under this agency agreement, Pan American has the authority both to select and to appoint ticket agents in the United States and to receive revenues for flights on CAAC.
Peter Barkanic and Donald Fox were American businessmen whose tickets for the China Airlines flight from Nanjing to Beijing were purchased from Vanslycke & Reeside Travel, Inc., Washington, D.C., an agent for Pan American World Airways, on January 9, 1985. It is undisputed that tickets issued for domestic flights in China in this manner must be confirmed by CAAC in China and, indeed, Barkanic and Fox did not travel on Flight 1508 departing 10:25 a.m. on January 18, 1985, as originally designated on the United States issued tickets. Instead, stickers attached to the original tickets indicate that the tickets were changed by the CAAC issuing office in Nanjing, China, to the ill-fated Flight 5109 departing at 5:05 p.m. on the same day. There is no evidence in the record that at the time this change in flights was made Barkanic and Fox were required to purchase new tickets or pay any additional fee. Flight 5109 crashed while attempting to land in poor weather at Jinan, China, killing Barkanic, Fox, and many others.
The district court dismissed this wrongful death action for lack of subject matter jurisdiction under the first clause of section 1605(a)(2) of the FSIA, 28 U.S.C. Sec. 1605(a)(2). 1 The court found that there was no significant nexus between CAAC's commercial activities in the United States and the accident in China because the tickets issued in the United States were unconfirmed, were indeed changed as to flight number and departure time in China, and were for travel entirely within China. The district court also held that CAAC did not waive its defense of sovereign immunity by accepting the CAB foreign air carrier permit.
We have previously held, as the district court recognized, that "[w]hen a foreign state has carried on a commercial activity within the United States, the first clause of Sec. 1605(a)(2) ... withdraws immunity with respect to claims based not only on acts within the United States but also with respect to acts outside the United States if they comprise an integral part of the state's 'regular course of commercial conduct' ... 'having substantial contact with the United States.' " Ministry of Supply, Cairo v. Universe Tankships, Inc., 708 F.2d 80, 84 (2d Cir.1983) (quoting 28 U.S.C. Sec. 1603(d) & (e)). Though the Fifth Circuit has suggested that an argument can be made that Ministry of Supply, Cairo approved a "doing business" interpretation of clause one of section 1605(a)(2), it nevertheless felt that "this reading is too broad since the parties did not raise the 'doing business' issue." Vencedora Oceanica Navigacion, S.A. v. Compagnie Nationale Algerienne de Navigation, 730 F.2d 195, 201 n. 12 (5th Cir.1984). We agree with the Fifth Circuit's reading of Ministry of Supply, Cairo and take it, as did the district court, that a nexus is required between the...
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