Berner v United Airlines

• Date: 06 December 1957
• Court: New York Court of Appeals Court of Appeals

United States, Supreme Court of New York, Special Term, New York County.

Supreme Court of New York, Appellate Division, First Department.

Court of Appeals of New York.

Berner et Al.

and

United Airlines et Al.

Air Law — Warsaw Convention of 1929 on International Carriage by Air — Interpretation of Term “Doing Business”.

Treaties — Interpretation of — Principles and Rules of — Interpretation by Reference to Object of Treaty — Interpretation of Convention Providing for Unification of Rules of Private Law — Warsaw Convention of October 12, 1929, on International Carriage by Air — Where Action May be Brought Against Carrier — Jurisdiction Created by Treaty.

On appeal,

Held (by the Appellate Division of the Supreme Court): that the order denying the motion to vacate the service of summons must be affirmed. Under Article 28 of the Warsaw Convention, British Commonwealth Pacific maintained a place of business in New York such as to confer jurisdiction on a court of New York in an action for damages. A definite location in the area of jurisdiction, some regularity in the business of selling tickets, and the sale therein of the ticket which gave rise to the action met the requirements of the Convention. British Commonwealth Pacific was also “doing business” in such a way in New York as to give jurisdiction to the Court by service of process on the carrier's agent, British Overseas Airways Corporation.

The Court said: “By the express language of the Convention, the New York Supreme Court became vested with jurisdiction of ‘An action for damages’ as described in article 28. It is a court in the territory of one of the High Contracting Parties; and it is ‘the court’ where the carrier ‘has a place of business through which the contract has been made’.

“This language includes places maintained by the carrier itself or through agents at which the ticket is sold. The language describes a ‘place of business’, not necessarily in the broad or general connotation of the term, but one closely related to the sale of the ticket, i.e., where the ‘contract has been made’.

“A definite location in the area of jurisdiction, some regularity in the business of selling tickets, and the sale there of the ticket which gives rise to ‘An action for damages’ seem literally to meet the requirements of the situs of the court contemplated by the Convention. As to the specific contract of transportation here involved, the New York Supreme Court meets exactly the Convention requirements for...