Kapar v. Kuwait Airways Corp.

• Decision Date: 12 June 1988
• Docket Number: No. 87-7160,87-7160
• Parties: Charles KAPAR, Appellant, v. KUWAIT AIRWAYS CORPORATION, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1100

845 F.2d 1100

269 U.S.App.D.C. 355

Charles KAPAR, Appellant, v. KUWAIT AIRWAYS CORPORATION, et al.

No. 87-7160.

United States Court of Appeals, District of Columbia Circuit.

Argued March 25, 1988.

Decided May 6, 1988.

As Amended June 12, 1988.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 85-01304).

Marc Fiedler, with whom Roger C. Johnson, Washington, D.C., was on the brief, for appellant.

Michael J. Holland, New York City, with whom Thomas J. Whalen and Moffett B. Roller, Washington, D.C., were on the brief, for appellee Kuwait Airways Corp.

James A. Gallagher, Jr., with whom David O'Brien, Peter F. Vetro, Mineola, N.Y., and Richard W. Galiher, Jr., Washington, D.C., were on the brief, for appellee Pan American World Airways, Inc.

Patrick Kavanaugh was on the brief for appellee Middle East Airlines Airliban, S.A.L. Stephen A. Trimble, Washington, D.C., also entered an appearance for appellee Middle East Airlines Airliban, S.A.L.

Bert W. Rein and James M. Johnstone, Washington, D.C., were on the brief for amicus curiae Intern. Air Transport Ass'n.

Before EDWARDS, SILBERMAN and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

The appellant, Charles Kapar, initiated an action in District Court seeking damages from Kuwait Airways Corporation ("KAC"), Pan American World Airways, Inc. ("Pan Am") and Middle East Airlines Airliban, S.A.L. ("MEA") for personal injuries he sustained when a KAC flight on which he was a passenger was hijacked. The District Court dismissed Kapar's claims against KAC and Pan Am, ruling that it lacked subject matter jurisdiction over both carriers under Article 28(1) of the Warsaw Convention ("Convention"). ¹ The trial court dismissed Kapar's claim against MEA because personal jurisdiction had not been established. Kapar v. Kuwait Airways Corp., 663 F.Supp. 1065 (D.D.C.1987). ²

We find no error in the District Court's interpretation of Article 28(1). Furthermore, we find no merit in Kapar's alternative construction of this provision or his argument that he is entitled to bring an independent admiralty claim against KAC. We therefore affirm the dismissal of all claims against KAC and Pan Am. We remand the claim against MEA, however, because the District Court erred in dismissing MEA sua sponte for lack of personal jurisdiction.

I. BACKGROUND

In 1984, Kapar was employed by the Agency for International Development ("AID"). Although stationed in Karachi, Pakistan, he provided auditing services at AID missions throughout the Middle East and Southeast Asia. After completing an assignment in Sanaa, Yemen Arab Republic, he purchased an airline ticket to Karachi from Marib Travel and Tourism, an authorized Pan Am sales agent.

Kapar's ticket, which was issued on Pan Am ticket stock, was for travel on KAC flight # 782 from Sanaa to Kuwait City, Kuwait, on December 3, 1984, and then on KAC flight # 221 from Kuwait City to Karachi on the same day. This arrangement was not unusual. Most of the world's airlines--including Pan Am and KAC--routinely sell carriage over each other's routes on a commission basis, pursuant to standard interline traffic agreements promulgated by the International Air Transport Association ("IATA"). See Eck v. United Arab Airlines, 360 F.2d 804, 813 & n. 22 (2d Cir.1966). Under the terms of the Pan Am-KAC interline agreement, Kapar's payment was routed to a clearinghouse in New York, where settlement was made.

Kapar's trip on KAC flight # 782 from Sanaa to Kuwait City was uneventful. KAC flight # 221 was hijacked, however, after completing a refueling stop in Dubai, United Arab Emirates. The hijackers apparently Following his return to the United States, Kapar filed suit in the District Court, raising various tort claims against the aforementioned defendants. KAC moved to dismiss the claims against it, arguing that it was not amenable to suit in the United States under Article 28(1) of the Convention. ³ Article 28(1) provides that an action for damages arising out of international air travel "must be brought" in one of four countries: (1) the carrier's domicile; (2) the carrier's principal place of business; (3) the country where the carrier has a place of business through which the contract of carriage was made; or (4) the place of destination. ⁴

transferred to KAC flight # 221 in Dubai from a MEA flight that had arrived from Beirut, Lebanon. The hijackers forced KAC flight # 221 to land in Teheran, Iran, on December 4, 1984, where Kapar was tortured and beaten severely.

Because KAC is based in Kuwait and the ultimate destination of KAC flight # 221 was in Pakistan, the District Court rejected Kapar's contention that the United States could serve as a proper forum under the first, second or fourth clauses of Article 28(1). With respect to the third clause, the court found implausible Kapar's "complicated theory," which was based on the fact that his ticket was electronically confirmed in New York and that as a federal employee he was allegedly obliged to buy his ticket from an American carrier. 663 F.Supp. at 1067. Consequently, the court granted KAC's motion to dismiss.

Having reached this conclusion, the District Court determined that it also lacked subject matter jurisdiction over Pan Am. The court reasoned that Pan Am, as KAC's agent, was fully entitled to KAC's Convention defenses. Id. at 1068.

Furthermore, the court rejected Kapar's contention that he could avoid the Convention's jurisdictional limitations by bringing a separate admiralty cause of action against KAC. The court held that the remedies provided in the Convention provided Kapar's exclusive source of relief. ⁵ Finally, the court, sua sponte, dismissed Kapar's claim against MEA for lack of personal jurisdiction.

Kapar seeks review of the District Court's decision pursuant to 28 U.S.C. Sec. 1291 (1982).

II. ANALYSIS

A. Jurisdiction Over Pan Am as "Carrier"

At the outset, we emphasize that Kapar no longer claims that KAC is amenable to suit in the United States under Article 28(1). ⁶ Kapar also has forsaken his concomitant claim that Pan Am is liable for its role as agent both for him and for KAC. Instead, Kapar devotes his appellate energies to arguing that Pan Am, a United States-based corporation, should be deemed a "carrier" under the facts of this case, such that it would be subject to suit in this This contention is without merit. Although the term "carrier" is not defined in the Convention, the manner in which it is employed, particularly in the chapter titled "Liability of the Carrier," makes clear that the Convention's drafters were referring only to those airlines that actually transport passengers or baggage ("actual carriers"). See Air France v. Saks, 470 U.S. 392, 396-97, 105 S.Ct. 1338, 1340-41, 84 L.Ed.2d 286 (1985) ("The analysis must begin ... with the text of the treaty and the context in which the written words are used."). In Article 17, for example, the "carrier" is deemed liable for death or bodily injury "if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking " (emphasis added). ⁸ Likewise, in Article 18(1), the "carrier" is deemed liable for damage to any checked baggage or other goods "if the occurrence which caused the damage so sustained took place during the transportation by air " (emphasis added). ⁹ In Article 30, moreover, the drafters even precluded the possibility that the actual carrier for one leg of a scheduled multi-leg trip could be held liable for injuries suffered on another airline during a different leg of the trip. When "successive carriers" provide transportation of this sort, a passenger "can take action only against the carrier who performed the transportation during which the accident ... occurred " (emphasis added). ¹⁰ In light of this provision, it cannot reasonably be concluded that the drafters intended an airline that merely issues a ticket to face potential liability as "carrier." See Briscoe v. Compagnie Nationale Air France, 290 F.Supp. 863 (S.D.N.Y.1968).

country under the first two bases of jurisdiction in Article 28(1). ⁷

Our understanding of the term "carrier," as utilized in the Convention, comports with the well-settled principle that an airline that issues a ticket for carriage on another airline acts only as the agent for the actual carrier. See, e.g., Block v. Compagnie Nationale Air France, 386 F.2d 323, 332-34 (5th Cir.1967), cert. denied, 392 U.S. 905, 88 S.Ct. 2053, 20 L.Ed.2d 1363 (1968); Eck, 360 F.2d at 814. This precedent reflects the longstanding practice and understanding of the world's international air carriers, whose standard IATA interline agreement provides that an issuing airline "shall be deemed to act only as an Agent of the Finally, one must bear in mind that, by including Article 28(1), the drafters intended to "restrict[ ] 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." Eck, 360 F.2d at 808; see also In re Air Crash Disaster Near New Orleans, La., 821 F.2d 1147, 1161 (5th Cir.1987) (en banc). Because the nexus with the United States in this case can only be described as "slight ... and remote," Kapar, 663 F.Supp. at 1068 n. 3, subjecting Pan Am to suit in the District Court would be inconsistent with the underlying purpose of Article 28(1).

                carrying airline(s)."    Art. VII, Interline Traffic Agreement--Passenger, reprinted in Appendix for Appellee KAC at 25. 11   Kapar's ticket, moreover, expressly states that the "carrier issuing a ticket for carriage over the lines of another air carrier does so only as its agent."    Reprinted in Appendix of Appellee KAC at 15. 12   That the Convention's drafters did not account for these agency

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