Lee v. China Airlines Ltd.

• Decision Date: 28 July 1987
• Docket Number: No. 86-1015 SVW.,86-1015 SVW.
• Court: U.S. District Court — Central District of California
• Parties: John M.K. LEE and Margaret Lee, Plaintiffs, v. CHINA AIRLINES, LTD., a corporation, the Boeing Company, a corporation, Min Yuan Ho, Wilmington Trust Company, Pratt & Whitney, Ju Yu Chang, Kno Pin Wei, Chien Yran Liao, Po Chao Su, and Su Shin Lung, Defendants.

669 F. Supp. 979

John M.K. LEE and Margaret Lee, Plaintiffs, v. CHINA AIRLINES, LTD., a corporation, the Boeing Company, a corporation, Min Yuan Ho, Wilmington Trust Company, Pratt & Whitney, Ju Yu Chang, Kno Pin Wei, Chien Yran Liao, Po Chao Su, and Su Shin Lung, Defendants.

No. 86-1015 SVW.

United States District Court, C.D. California.

July 28, 1987.

Linda S. Hedemann, Chris Brunner, Edward B. Djang, Law Offices of Edward B. Djang, Orange, Cal., for plaintiffs.

David A. Senior, Condon & Forsyth, Los Angeles, Cal., for defendant China Airlines.

Paul Alvarez, George A. Manfredi, Johnsen, Manfredi & Thorpe, Los Angeles, Cal., for defendants the Boeing Co.

ORDER RE MOTION TO DISMISS

WILSON, District Judge.

Defendant China Airlines has moved to dismiss because of lack of jurisdiction under the Warsaw Convention ("the Convention"). See 49 U.S.C.A. § 1502 (West 1976). The plaintiffs, John and Margaret Lee, argue that Article 28 of the Convention does not require dismissal of China Airlines, and that even if it does, the court should ignore the Convention's mandate because the Convention is unconstitutional. The court does not agree with either argument, and it therefore grants China Airlines' motion to dismiss.

FACTUAL BACKGROUND

This case is one of several involving China Airlines Flight 006 (a Boeing 747) on February 19, 1985. The Lees were injured on that flight when the 747 made an unexpected and uncontrolled 31,000 foot descent off the coast of California.

The Lees are permanent residents of California. Mr. Lee is in the international garment manufacturing business, so he makes frequent trips to Asia. They purchased the tickets which allowed them to travel on Flight 006 in Hong Kong. These tickets were for round trip travel from Hong Kong to San Francisco. The date and flight number on the return portion of the ticket were left open.

DISCUSSION

A. THE WARSAW CONVENTION REQUIRES DISMISSAL OF CHINA AIRLINES

Article 28 of the Warsaw Convention will not allow the Lees' case against China Airlines to be heard in the United States. Therefore, the court must dismiss this case.

1. Applicability of the Convention

The Lees argue that the Warsaw Convention does not apply in this case because their ill-fated flight did not depart from a country that is a party to the Convention. They are incorrect.

The Convention applies to "international transportation." This term is defined in Article 1, Paragraph (2) of the Convention as:

Any transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated either in the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place in a territory subject to the sovereignty, suzerainty, mandate or authority of another power, even though that power is not a party to this Convention.

According to this language, the Convention will apply in two situations. First, it applies, if according to the contract of transportation (e.g., a plane ticket), travel will be from one High Contracting Party to another. Second, if the contract of transportation provides for travel from a High Contracting Party, for stops abroad, and then for a return to that same High Contracting Party, then the Convention also applies.

The ticket in this case provided for transportation from Hong Kong to Taipei to San Francisco to Hong Kong. Because the Convention only allows for one destination, see In re Alleged Food Poisoning Incident, 770 F.2d 3 (2d Cir.1985), the departure point and the destination of the Lees must officially be considered Hong Kong. Thus, the Convention will not apply in this case unless Hong Kong is a High Contracting Party.

Contrary to the Lees' assertions, Hong Kong qualifies as a High Contracting Party to the Convention. The United Kingdom is a High Contracting party, and its adherence to the Convention covers Hong Kong. See Av.L.Rep. (CCH) ¶ 27,054, at 24,059-3 n. 19.

2. Article 28 Requires Dismissal of China Airlines

Under Article 28 of the Convention, an action can be brought under the terms of the Convention only in the following places: (1) the carrier's domicile; (2) the carrier's principal place of business; (3) the place where the ticket was purchased; or (4) the passenger's place of destination.

The airline asserts that under the above test, the Lees may only sue in Hong Kong or Taiwan. They point out that the carrier's domicile is Taiwan, that its principal place of business is Taiwan, and that the ticket was purchased in Hong Kong. The Lees do not dispute these three points. The parties do dispute, however, the location of the Lees' place of "destination." The Lees say that their destination was San Francisco, but the airline says the destination was Hong Kong. The airline is correct.

The key principle in determining destination under the Convention is that for any given ticket, there can only be one destination. See In re Alleged Food Poisoning Incident, 770 F.2d 3 (2d Cir.1985). As the Second Circuit explained in that case, the Convention mandates that "destination" be determined by reference to a passenger's ticket and not by reference to the place to which an aircraft is traveling when an incident occurs. Given this frame of reference, the courts have held that for the purposes of the Convention, a journey can have only one destination, no matter how many carriers are involved, see Petrire v. Spantax, S.A, 756 F.2d 263 (2d Cir.), cert. denied, 474 U.S. 846, 106 S.Ct. 136, 88 L.Ed.2d 112 (1985), or how many intermediate stopping places are scheduled, see Gayda v. LOT Polish Airlines, 702 F.2d 424, 425 (2d Cir.1983).

This interpretation of Article 28, which only allows for one destination for each journey, is supported by Article 1 of the Convention. See Food Poisoning, 770 F.2d at 6. As that case points out, Article 1 refers to destination in the singular only, "implying that there is only one destination' for an undivided transportation." Id. Furthermore, Article 1 draws a distinction between an "agreed stopping place" and a "destination," reinforcing the uniqueness of the "destination" for Convention purposes.

Because each journey governed by the Convention can have only one destination, courts are nearly unanimous in holding that when a passenger has purchased a round trip ticket, the destination is the place where the trip began. See, e.g., Food Poisoning, 770 F.2d at 3; Petrire, 756 F.2d 263; Vergara v. Aeroflot "Soviet Airlines", 390 F.Supp. 1266 (D.Neb.1975). In this case, then, the Lees' destination was Hong Kong because that was the ultimate stopping place of their travels according to their tickets.

The Lees argue that their "destination" was San Francisco, not Hong Kong. They note that although they purchased a round trip ticket, the return portion of the ticket did not specify a date or a flight number. They argue that under Aanestad v. Air Canada Inc., 390 F.Supp. 1165 (C.D.Cal. 1975), when passengers carry such "open" round trip tickets, the destination is the stopping point of the first leg of the trip.

Although Aanestad was decided by a judge in this district, this court respectfully declines to follow its holding because it finds Aanestad's reasoning unpersuasive. See Starbuck v. City & County of San Francisco, 556 F.2d 450, 457 n. 13 (9th Cir.1977) ("The doctrine of stare decisis does not compel one district court judge to follow the decision of another."). The Aanestad court held that if the return leg of a round trip ticket is left open, then the airline and a passenger have not made a completed contract for the return leg. Rather, the court held that in the open ticket situation, the airline only makes an offer to transport for the return leg and that therefore the "destination" is the termination point of the first leg.

The court declines to follow Aanestad because it finds its characterization of the nature of airline tickets to be inaccurate. Rather, the court adopts the criticism of Aanestad expressed in Butz v. British Airways, 421 F.Supp. 127 (E.D.Pa.1976), aff'd, 566 F.2d 1168 (3d Cir.1977).

Whether the return portion of the ticket is characterized as an option or a contract, the carrier was legally bound to transport the passenger back to the place of origin within the prescribed time and the passenger for her part agreed to pay the fare and, in fact, did pay the fare. Thus there was mutuality of obligation and a binding contract of carriage. The fact that the passenger could forego her rights under the contract does not make it any less binding. Certainly, if the parties did not contemplate the return leg of the journey, the passenger would not have paid for it and the carrier would not have issued a round trip ticket.

The court agrees with the decision in Vergara v. Aeroflot "Soviet Airlines", 390 F.Supp. 1266, that the best way to describe an airline ticket is as a "highly modifiable contract." Given its conclusion about the nature of the contract in an airline ticket, the court has no choice but to hold that the Lees' "destination" under Article 28 was Hong Kong since it was the last point mentioned on the Lees' round trip tickets.

B. THE WARSAW CONVENTION IS CONSTITUTIONAL

The Lees argue that even if the court finds that Article 28 requires dismissal of China Airlines, the court should still not dismiss them because the Warsaw Convention is unconstitutional. The Lees make three different arguments on the constitutionality issue. First, they argue that the Convention constitutes a substantive due process violation because it impairs the allegedly fundamental right to international travel. Second, they argue that the Convention constitutes an equal protection violation because it treats passengers on the same airplane differently depending upon the content of their tickets. Finally, they...