Eck v. United Arab Airlines, SAA

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: Haight, Gardner, Poor & Havens, New York City, for defendant, United Arab Airlines
• Citation: Eck v. United Arab Airlines, SAA, 241 F. Supp. 804 (S.D. N.Y. 1965)
• Decision Date: 12 March 1965
• Parties: Martha ECK, Plaintiff, v. UNITED ARAB AIRLINES, S.A.A., Defendant.

241 F. Supp. 804

Martha ECK, Plaintiff, v. UNITED ARAB AIRLINES, S.A.A., Defendant.

United States District Court S. D. New York.

November 27, 1964.

On Motion for Reargument March 12, 1965.

Speiser, Shumate, Geoghan & Law, New York City, for plaintiff, Eck.

Haight, Gardner, Poor & Havens, New York City, for defendant, United Arab Airlines.

CANNELLA, District Judge.

Motion by the defendant, United Arab Airlines, S.A.A., to dismiss the complaint pursuant Rule 12(b) of the Federal Rules of Civil Procedure and for summary judgment pursuant Rule 56 of the Federal Rules of Civil Procedure. The defendant alleges four separate and distinct grounds for its motion to dismiss:

1). That a decision of the Appellate Division of the Supreme Court, State of New York, First Department, dismissing this plaintiff's complaint in an action brought in Supreme Court, New York County, is res judicata as to the availability of New York as a forum in this action and that the said decision of the state court must be given full faith and credit by this court;

2). That this court has no jurisdiction of the subject matter of this action pursuant to the provisions of the Warsaw Convention;

3). That no venue lies in this court under the Warsaw Convention;

4). That this court has no jurisdiction over the person of the defendant.

The motion to dismiss is granted and the motion for summary judgment becomes moot.

The plaintiff, Martha Eck, a resident of California, was a member of the Far West Ski Association which arranged a skiing trip to Europe in 1962. All arrangements for the group excursion flight from Los Angeles, California to Europe and back were made by the Ski Club. In addition to this trip, Miss Eck apparently desired to take certain side trips in Southern Europe and the Near East. She therefore individually purchased certain tickets for such transportation from the Oakland, California office of Scandinavian Airlines Systems. Scandinavian was not to handle all actual flights on which the plaintiff was to travel. One leg of her side trip was a flight from Jerusalem, Israel to Cairo, Egypt. This flight was to be performed by the defendant, United Arab Airlines. During this flight, the plane containing Miss Eck crashed in a sandstorm in Wadi Halfa, Sudan, Africa, on March 16, 1962. Miss Eck alleges that she suffered paralyzing injuries due to the negligence of the defendant.

Prior to the commencement of this action, the plaintiff sued this defendant on this same cause of action in Supreme Court, State of New York, New York County, the action being commenced on March 11, 1963. The defendant moved to dismiss the complaint in that court on the ground that the action could not be maintained in New York under the provisions of the Warsaw Convention, 49 Stat. 3000. The motion was denied. The defendant appealed and on March 19, 1964, the Appellate Division reversed the lower court decision and dismissed the complaint. Eck v. United Arab Airlines, Inc., 20 A.D.2d 454, 247 N.Y.S.2d 820 (1st Dept.1964). The plaintiff is presently appealing that decision to the New York Court of Appeals.

The plaintiff has now instituted an action in this court based on the same events alleged in the complaint in the state action.

The Warsaw Convention regulating the conditions of international air transportation was signed by representatives of twenty-three nations at Warsaw, Poland on October 12, 1929. Adherence was advised by the United States Senate on June 15, 1934 and was proclaimed by the President on October 29, 1934. Switzerland and Egypt are also signatories to the Convention. The Convention governs the plaintiff's choice of forum concerning any claim arising out of an accident in "international transportation." There was no dispute in the state court and there is apparently none here that the plaintiff's travel was such "international transportation" as defined in Article 1(2) of the Warsaw Convention and thus her travel was subject to the provisions of the Convention. Article 28(1) of the Convention provides:

"(1) 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."

Grounds two and four of the defendant's motion may be disposed of without much difficulty. The fourth ground of the motion to dismiss is that this court has no jurisdiction over the person of the defendant. Such is not the case. In a decision handed down by Judge Sugarman of this court on May 18, 1964 (Rome v. United Arab Airlines, 63 Civ. 3626), such a contention was rejected. In the instant case, the defendant did not contest in personam jurisdiction in the state court and in fact appeared. There seems to be no question that the defendant's actions in this District are sufficient to subject them to the personal jurisdiction of this court. See Wahl v. Pan American World Airways Inc., (Hopp v. Middle East Airlines et al.), 227 F.Supp. 839 (S.D.N.Y.1964). The Airline maintains and operates general and sales offices at 720 Fifth Avenue in this City and the offices are designated as "Executive Office" and "Sales Office" in the lobby directory of that building. The defendant is listed in the 1963-64 Manhattan Telephone Directory and has two listings in the Manhattan Classified (Yellow Pages) Directory. The defendant's system timetables are distributed in New York City at these offices. Other indicia of business operations are present sufficient to constitute minimal contacts. McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 (1945); see also, State of Maryland for Use of Mitchell v. Capital Airlines, Inc., D.C., 199 F.Supp. 335 (1961); cf., Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).

The second ground of the defendant's motion is that this court lacks jurisdiction over the subject matter of the action because the plaintiff has failed to bring her action within the jurisdictions listed in Article 28(1) of the Warsaw Convention. This position is without merit and the defendant has indicated as much in its memorandum of law. The provisions of 28(1) have been held, in this District, not to affect the jurisdiction of the United States District Courts over such an action as this. Article 28(1) is not jurisdictional and its only relation is to venue. Spencer v. Northwest Orient Airlines, 201 F.Supp. 504 (S.D.N.Y.1962); Mason v. British Overseas Airways, Civil 109-372, November 15, 1956 (not officially reported).

The first ground of the defendant's motion is predicated on the asserted res judicata effect of the state court judgment arising out of the facts at issue herein. While such a contention is one of interest to the court, any determination of this issue is superfluous. No question of res judicata or full faith and credit is necessary to the resolution of this motion for this court holds that the third ground of the defendant's motion, lack of venue in this court, is dispositive of the motion.

This complaint must be dismissed for in fact no venue exists in this court pursuant to the provisions of Article 28 (1) of the Warsaw Convention. There seems to be no contention that three of the four possible forums allowed by the Warsaw Convention do not avail the plaintiff of this court as a forum. The domicile of the carrier is the United Arab Republic (Egypt), the principal place of business of the defendant is Cairo and the place of the destination of the plaintiff's trip was Zurich,...