Berner v. United Airlines

• Decision Date: 30 January 1956
• Citation: 2 Misc.2d 260,149 N.Y.S.2d 335
• Parties: 7U9T. Roland BERNER and Arthur S. Lesser, Executors of the Estate of William Kapell, deceased, Plaintiffs, v. UNITED AIRLINES, Inc., a Foreign Corp., British Overseas Airways Corp., a Foreign Corp., British Commonwealth wealth Pacific Airlines, Ltd., a Foreign Corp., British Commonwealth Pacific Airlines, Ltd., now doing business as Quantas Empire Aviation, Ltd., a Foreign Corp., Defendants.
• Court: New York Supreme Court

Page 335

149 N.Y.S.2d 335

2 Misc.2d 260

7U9T. Roland BERNER and Arthur S. Lesser, Executors of the Estate of William Kapell, deceased, Plaintiffs, v. UNITED AIRLINES, Inc., a Foreign Corp., British Overseas

Airways Corp., a Foreign Corp., British Commonwealth wealth

Pacific Airlines, Ltd., a Foreign Corp., British

Commonwealth Pacific Airlines, Ltd., now doing business as

Quantas Empire Aviation, Ltd., a Foreign Corp., Defendants.

Supreme Court, Special Term, New York County, Part I.

Jan. 30, 1956.

T. Roland Berner, New York City, Julian S. Bush, Sidney Bender, New York City, of counsel, for plaintiffs.

Condon & Forsyth, New York City, Cyril Hyde Condon, George Foster, Jr., New York City, of counsel, for defendants British Commonwealth Pacific Airlines, Ltd., and others.

MARKOWITZ, Justice.

Defendants, British Commonwealth Pacific Airlines, Ltd. (hereinafter called BCPA) and British Commonwealth Pacific Airlines, Ltd., now allegedly doing business as Quantas Empire Aviation, Ltd. (hereinafter called Quantas), appear specially herein for the purposes of this motion, whereby they request an order vacating and setting aside the service of the summons in this action upon them. The defendants United Air Lines, Inc. and British Overseas Airways Corp. have appeared generally in this action.

The grounds asserted by BCPA and Quantas are:

(1) That service was not made upon a proper representative of BCPA and Quantas, both being foreign corporations;

(2) That this court does not have jurisdiction of BCPA and Quantas since, as defendants allege, both are foreign corporations not doing business within the State of New York at the time of the attempted service of the summons, or at the time of the transactions giving rise to any alleged cause of action.

Plaintiffs urge that assuming, arguendo, BCPA and Quantas are foreign corporations not doing business in this state, the jurisdiction of this court has been properly invoked by virtue of the consent of BCPA and Quantas to be sued herein, as provided by the contract of carriage (which includes the Warsaw Convention rules here applicable) thereby waiving the service of process requirements under § 229 of the Civil Practice Act.

While no complaint has been served with the summons sought to be vacated, it is undisputed that plaintiffs' proposed cause of action is for damages for wrongful death predicated upon an airplane accident in which plaintiffs' intestate, William Kapell, was fatally injured. On May 7, 1953, he had purchased, in New York City, at the office of the defendant British Overseas Airways Corp. (hereinafter called BOAC), a round trip ticket from New York to Sydney, Australia, by way of San Francisco, California. In the sale of this ticket BOAC was acting as General Sales Agent for BCPA.

Kapell, without incident, made the flight from New York to San Francisco to Sydney, Australia. The trip from New York to San Francisco was on an airplane owned and operated by the defendant United Air Lines, Inc., a domestic carrier. The return flight from San Francisco to New York was to be made on a plane of the same carrier. However, on the return leg of the flight from Sydney, Australia, to San Francisco, which was on a plane owned and operated by BCPA, the plaintiffs' intestate was killed on October 29, 1953, when the plane crashed in California. BCPA on the date of the crash was an Australian corporation. It has since discontinued flight operations and is now in liquidation. This, however, has no effect upon the consideration of the instant motion. Under date of May 15, 1954, the Civil Aeronautics Board of the United States licensed Quantas, which had purchased a substantial part of the airplane equipment of BCPA, to take over the run formerly operated by BCPA. Quantas, like BCPA, is incorporated under the laws of Australia, and all of its stock is held by the Commonwealth of Australia.

The ticket bought and issued to plaintiffs' intestate in New York contained an explicit reference to what is popularly known as the Warsaw Convention. The following appeared on the face of the ticket:

'Carriage hereunder is subject to the rules related to liability established by the Convention for the Unification of Certain Rules relating to International Carriage by Air signed at Warsaw, October 12, 1929 unless such carriage is not 'International Carriage' as defined by said Convention.'

Australia and the United States are both signatory parties to the Warsaw Convention. This Convention was entered into in order to accomplish the unification of certain rules relating to international transportation by air, and was signed on October 12, 1929 by the representatives of twenty-three countries at Warsaw, Poland. Adherence to the Convention was advised by the United States Senate on June 15, 1934, and proclaimed by the President of the United States on October 29, 1934, 49 U.S.Statutes at Large, p. 3000 et seq., 1934, U.S.Treaty Series 876; Komlos v. Compagnie Nationale Air France, D.C., 111 F.Supp. 393, 397. The Convention, as a Treaty, constitutes part of the law of this land, overriding state law and policies. U.S.Const.Art. VI, clause 2; Wyman v. Pan American Airways, Inc., 181 Misc. 963, 43 N.Y.S.2d 420, affirmed 267 App.Div. 947, 48 N.Y.S.2d 459, affirmed 293 N.Y. 878, 59 N.E.2d 785, certiorari denied 324 U.S. 882, 65 S.Ct. 1029, 89 L.Ed. 1432; Komlos v. Compagnie, etc., supra.

Since the flight was subject to the Warsaw Convention Rules, the rights of the parties were fixed by those rules therein provided. Said rules were made a condition of the ticket purchased by the deceased and in any event were so made under the rules themselves. Warsaw Convention, Art. 3, subd. 2; Wyman v. Pan American Airways, Inc., supra, 181 Misc. at page 965, 43 N.Y.S.2d at page 422.

We are therefore brought to a consideration of the question of the effect of Article 28 of the Warsaw Convention on the diverse contentions of the parties to the instant motion. Article 28 provides '(1) An action for damages must be brought, at the option of the plaintiff, in the perritory of one of the High Contracting Parties, 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.

'(2) Questions of procedure shall be governed by the law of the court to which the case is submitted.'

The ticket purchased by the passenger was for a round trip passage from New York to San Francisco, to Sydney, to San Francisco, to New York. There were thus several intermediate breaks in travel en route with the final destination at New York. Such final destination, it is obvious, falls clearly within the phrase, 'place of destination' of subdivision (1) in Article 28 of the Warsaw Convention. Wyman v. Pan American Airways, Inc., supra; see New York State Bar Bulletin, July, 1948, p. 193.

Furthermore, on the basis of the entire record before me and the conceded facts pursuant to stipulation between the attorneys for the parties, it is also clear that New York is a proper forum under Article 28 of the said Convention for the purposes of commencing suit, since New York was a place of business through which the contract of carriage was made by BCPA. The attorneys for the defendants BCPA and Quantas and the attorneys for the plaintiff have stipulated for the purposes of this motion that in October of 1953 BOAC and BCPA had a joint listing in the Manhattan Classified Telephone Directory which reads as follows:

'British Commonwealth Pacific Airlines

British Overseas Airways Corp.

Passenger Reservation Ticket Office and Air

Cargo Information, 342 Madison Av.--Murray

Hill 7-8900'

In addition thereto, both BOAC and BCPA had separate listings in the 1953 alphabetical Manhattan telephone directory indicating their respective offices to be at 342 Madison Avenue and their respective telephone numbers to be Murray Hill 7-8900. Furthermore, the moving defendants concede that on the left of the entrance door to the office at 342 Madison Avenue there was a plaque on the wall on which BOAC was listed as representing, among other foreign airlines, BCPA and QUA (which is the designation of Quantas Empire Aviation, Ltd.).

Plaintiffs contend that since Article 28, with relation to the flight here involved, was part of the contract of carriage, it constituted an acceptance by the foreign carrier of jurisdiction over it in any of the forums in which, under the provisions of Article 28, the passenger or his executors might elect to sue, these including New York as the place of destination and as the place of business through which the contract was made. Defendants, on the other hand, assert that Article 28 merely delineates and circumscribes forums in which venue of an action for damages may be laid, that it does not confer in personam jurisdiction in the State of New York over a foreign corporation in the absence of proper service under section 229 of the Civil Practice Act or a judicial determination that the foreign corporation which has been served is actually conducting such business in New York as to incur liability to service. Defendants' argument in this respect is tenuous and takes on exceedingly narrow view of the provision in Article 28, which, in my opinion, does more than merely indicate the venue in which an action must be brought. I read and construe the Article as bringing to airline passengers on flights subject to the rules of the Warsaw Convention an assurance that the carrier has consented to be sued in those forums specifically enumerated and set forth in Article 28 and that the passenger may rely on this consent in booking his passenge. Such interpretation is patently consistent with the primary purposes of the Warsaw Convention, namely, to stabilize the rules and regulations pertaining to international air travel and thus enable both carrier and passenger to...