Eck v. United Arab Airlines, Inc.

• Decision Date: 13 May 1966
• Docket Number: No. 43,Docket 29610.,43
• Citation: 360 F.2d 804
• Parties: Martha ECK, Plaintiff-Appellant, v. UNITED ARAB AIRLINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

360 F.2d 804 (1966)

Martha ECK, Plaintiff-Appellant, v. UNITED ARAB AIRLINES, INC., Defendant-Appellee.

No. 43, Docket 29610.

United States Court of Appeals Second Circuit.

Argued October 19, 1965.

Decided May 13, 1966.

COPYRIGHT MATERIAL OMITTED

Edward M. O'Brien, Speiser, Shumate, Geoghan & Krause, New York City (Stuart M. Speiser, New York City, of counsel), for plaintiff-appellant.

Douglas B. Bowring, Haight, Gardner, Poor & Havens, New York City, for defendant-appellee.

Before WATERMAN, MOORE and FRIENDLY, Circuit Judges.

WATERMAN, Circuit Judge:

This action was commenced in the United States District Court for the Southern District of New York by appellant Martha Eck, a resident of California, against appellee United Arab Airlines (UAA), an alien corporation organized and existing under the laws of the United Arab Republic. Appellant sought to recover damages for personal injuries that she allegedly suffered when on March 16, 1962 an airplane owned and operated by UAA crashed in the vicinity of Wadi Halfa, Sudanese Republic, Africa. District court jurisdiction was alleged under 28 U.S.C. § 1332(a) (2).

Prior to answer, UAA moved, pursuant to Fed.R.Civ.P. 12(b), to dismiss the complaint on the grounds that: (1) the New York state courts had decided the same claim adversely to appellant and principles of res judicata prohibited the claim's relitigation;¹ (2) the district court lacked jurisdiction over the subject matter of appellant's claim; (3) the district court lacked jurisdiction over the person of UAA; and (4) venue was improper. UAA also moved for summary judgment pursuant to Fed.R. Civ.P. 56. The court below concluded that it need not pass on the first ground stated in the motion to dismiss, it considered and rejected the second and third grounds, and went on to hold that the action should be dismissed because "in fact no venue exists in this court pursuant to the provisions of Article 28(1) of the Warsaw Convention." Eck v. United Arab Airlines, S.A.A., 241 F. Supp. 804, 807 (S.D.N.Y. 1965). For reasons set forth hereafter we hold that in so ruling the district court erred; therefore we reverse and remand for further proceedings.

I.

The appellant was a member of a group that flew from Los Angeles to Europe on February 23, 1962 on a charter flight operated for the Far West Ski Association by Scandinavian Airlines System (SAS). The contract of carriage called for the group to return to Los Angeles on or about March 26, 1962. All arrangements for this SAS-operated, round-trip flight, were made by the ski association. Appellant apparently decided that she would take full advantage of her presence in Europe during February and March 1962, for, without the assistance of the ski association, she planned a side trip to Southern Europe and the Near East. Before departing for Europe on the charter flight, appellant purchased through the Oakland, California office of SAS a ticket for her separate trip, which named Zurich as both the place of departure and the place of destination. This ticket listed as agreed stopping places the cities of Vienna, Istanbul, Athens, Beirut, Jerusalem, Cairo, Rome, and Naples. Several different airlines were to provide the transportation specified in the tickets;² only the Jerusalem to Cairo portion of the transportation was to be provided by UAA. As noted earlier, during the Jerusalem to Cairo leg of the Zurich to Zurich flight, UAA's airplane carrying appellant crashed near Wadi Halfa and appellant allegedly suffered serious injuries due to the negligence of UAA.

The manner in which it was agreed that UAA would transport appellant is a well-established feature of contemporary air transportation. A quick glance at the relevant schedules told the SAS clerk who waited on appellant that the airplanes of UAA regularly flew between Jerusalem and Cairo. He sold appellant reserved space on an appropriate flight and collected the fare. SAS then contacted the home office of UAA, located in Cairo, in order to confirm this reservation, thereby avoiding the confusion of duplicate or conflicting reservations. Finally, SAS made arrangements to forward to UAA the fare it had collected.

UAA had offices in the United States located at 720 Fifth Avenue in New York City and at 510 W. 6th Street in Los Angeles, but neither was involved in any direct way with the sale of the ticket to appellant. These offices primarily existed and continue to exist in order to service the needs of large metropolitan areas and supervise the promotional activity that resulted in more than $1,000,000 in United States bookings for UAA in 1963.³ Space on a UAA flight need not be purchased at one of these two offices; indeed, it can be purchased at the ticket counter of almost any airline operating in the United States as easily as appellant purchased space on UAA's Jerusalem to Cairo flight at the Oakland, California office of SAS. UAA might have decided to channel all ticket purchases through one of its offices in the United States, but it did not. Instead, all reservations, wherever made in the United States, were cleared through Cairo.

II.

In a case like that presently before us a court must decide in limine whether the Warsaw Convention⁴ is applicable.⁵ Frequently resolution of this threshold question poses issues of considerable complexity. See e.g., Mertens v. Flying Tiger Line, Inc., 341 F.2d 851 (2 Cir. 1965). Here, however, the Convention unquestionably applies. No one disputes that appellant's travel was "international transportation" as defined in Article 1(2).⁶ And this is sufficient to invoke the Convention.

Application of the provisions of the Warsaw Convention means in the first instance that the present suit can be maintained only in one of the four forums enumerated in Article 28(1), an article that restricts the forums in which damage actions may be brought in order to foreclose the possibility of suit in the courts of a nation that has no substantial connection with an accident, or in courts that lack advanced judicial procedures. Mertens v. Flying Tiger Line, Inc., supra at 855; Goodhuis, National Airlegislations and the Warsaw Convention, 287 (1937); McKenry, Judicial Jurisdiction under the Warsaw Convention, 29 J. Air L. & Com. 205 (1963).⁷ Article 28(1) provides:

An action for damages must be brought, at the option of the plaintiff, in the territory 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.

The United States does not qualify as a "territory"⁸ in which this suit may be maintained under three of Article 28(1)'s four provisions enumerating permissible forums. UAA is domiciled in Egypt and its principal place of business is also in that country.⁹ The United States was not the "place of destination" stated in appellant's ticket, and was not mentioned therein. Therefore, even though the United States is a "High Contracting Party," this suit is maintainable in the United States if, but only if, we can conclude that in the United States UAA "has a place of business through which the contract of carriage between appellant and UAA has been made." The thrust of most of UAA's arguments advanced to support its motion to dismiss is that the third provision of Article 28(1), from which the foregoing language is quoted, cannot justify the maintenance of this suit in the United States because the contract between appellant and UAA was not made "through" one of UAA's places of business in the United States.

III.

We consider it advisable to consider each of the four arguments UAA urged below as grounds for dismissal even though some of these arguments are insubstantial and UAA presses only the last on this appeal.

A. Res Judicata

When the present case was argued in the court below, the New York Appellate Division, First Department, had already dismissed an identical suit between these same parties on the ground that Article 28(1) did not permit the action to be maintained in New York.¹⁰ UAA argued in the district court that the federal case consequently should be dismissed because the parties had already once litigated the issue to a conclusion. The district court's disposition of the case avoided any resolution of this contention. Now this argument has arisen to haunt UAA because the New York Court of Appeals has reversed the Appellate Division and remanded the case for further proceedings, holding that maintenance of this suit in New York is consistent with the Warsaw Convention.¹¹ We need not, however, decide the vexing question whether principles of res judicata oblige us to respect this state-court determination, for the appellant has not here contended that we are so bound by the Court of Appeals decision, and we have independently reached the same result as the New York court, although on somewhat different grounds.¹²

B. Subject Matter Jurisdiction

The second contention advanced below by UAA was that the suit should be dismissed because Article 28(1) of the Warsaw Convention ousts the district court of jurisdiction over the subject matter of appellant's claim. This argument would become important only if UAA had not moved to dismiss on the ground that venue was improper under Article 28(1), but the defendant did so move and thereby all the relevant issues concerning the interpretation and application of this Article have been raised. See infra subsection D.

C. In Personam Jurisdiction

We also reject UAA's third contention, advanced below, that the district court lacked jurisdiction over UAA's person. New York law is, of course, determinative of this jurisdictional issue because the "amenability of a foreign corporation to suit in a federal court in a diversity action is determined in accordance with the law of the state where the court sits * * *." Arrowsmith v....