Luna v. Compania Panamena De Aviacion, SA

• Citation: 851 F. Supp. 826
• Decision Date: 30 March 1994
• Docket Number: Civ. A. No. H-93-1974.
• Parties: Carlos LUNA, et al., Plaintiffs, v. COMPANIA PANAMENA DE AVIACION, S.A., et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

851 F. Supp. 826

Carlos LUNA, et al., Plaintiffs, v. COMPANIA PANAMENA DE AVIACION, S.A., et al., Defendants.

Civ. A. No. H-93-1974.

United States District Court, S.D. Texas, Houston Division.

March 30, 1994.

COPYRIGHT MATERIAL OMITTED

Harold D. Dampier, Dampier & Watson, Houston, TX, Lee S. Kreindler, Steven R. Pounian, Robert Spragg, Kreindler & Kreindler, New York City, for plaintiffs.

Jad J. Stepp, Eastham Watson Dale & Forney, Houston, TX, for Compania Panamena De Aviacion, S.A.

David J. Beck, Beck Redden & Secrest, Houston, TX, Bruce D. Campbell, Perkins Coie, Seattle, WA, for Boeing Co.

Richard H. Caldwell, Mayor Day Caldwell & Keeton, Houston, TX, for Rockwell Intern. Corp. and Rockwell-Collins Intern., Inc.

James J. Sentner, Jr., Haight Gardner Poor & Havens, Houston, TX, for Honeywell Inc.

MEMORANDUM AND ORDER

ROSENTHAL, District Judge.

This suit arises out of the death of Clariza Bernal Luna in the crash of a Boeing 737-200 aircraft in the vicinity of Tucuti, Panama. Pending before this court are a motion to dismiss for lack of personal jurisdiction filed by Compania Panamena De Aviacion, S.A. ("COPA"), (Docket Entry No. 5); a motion to remand filed by plaintiffs, (Docket Entry No. 9); a motion for leave to amend filed by plaintiffs, (Docket Entry No. 24); and a motion for leave to file an untimely answer filed by defendant, The Boeing Company ("Boeing"), (Docket Entry No. 29). For the reasons set forth below, COPA's motion to dismiss is GRANTED; plaintiffs' motion to remand is DENIED; plaintiffs' motion for leave to amend is GRANTED; and Boeing's motion to file an untimely answer is GRANTED.

1. Background

On June 6, 1992, COPA Flight No. 201, enroute from Panama City, Panama to Cali, Colombia, crashed in the vicinity of Tucuti, Panama. All passengers were killed, including Clariza Bernal Luna ("Clariza Luna").

Clariza Luna was a permanent resident of the United States who lived with her husband and two children in Houston, Texas. On June 3, 1992, Clariza Luna purchased a ticket for round trip passage between Houston and Cali, Colombia from Excelsior Travel and Tours ("Excelsior Travel"), a Houston travel agency. The ticket provided for travel on June 6, 1992 aboard Continental Airlines from Houston to Panama City, Panama, to connect with the COPA flight 201 to Cali, Colombia. The ticket allowed a return on the same carriers, following the same route, on July 2, 1992. Clariza Luna paid Excelsior Travel $575 for the ticket, including $258 for the COPA flight.

Clariza Luna's COPA ticket was issued by Excelsior Travel pursuant to a standard airline interline agreement. Under this agreement, other carriers, including Continental, are authorized to make reservations and issue tickets for COPA flights. Excelsior Travel issued Clariza Luna's tickets against Continental ticket stock and forwarded the full $575, less Excelsior Travel's commission, to the Airline Reporting Company, which in turn paid the full amount to Continental. Under the interline agreement, Continental paid COPA for the COPA segment of Clariza Luna's flights to and from Colombia. The payment was made through the Airline Clearing House in New York City.

COPA is a corporation organized and existing under the laws of Panama, with its principal place of business in Panama City, Panama. COPA is an airline engaged in the transportation of passengers, cargo, and mail between points in Central America, the Caribbean, Mexico, and Colombia. COPA has never been authorized to conduct any flights to Texas and has never flown any flights into Texas. COPA has never been licensed or authorized to do business in Texas, and has never held itself out as doing business in Texas. COPA has no authorized agent for service of process in Texas. COPA does not maintain any office in Texas, own any property in Texas, or pay taxes to Texas. COPA has never employed any sales personnel, service personnel, soliciting agents, general sales agents, or any other employees in Texas.

COPA does not advertise in Texas and does not maintain any type of telephone listing, business listing, or mailing address in Texas. COPA does subscribe to a 1-800 telephone service which can be accessed by a telephone located in the United States, including Texas. This telephone service is not advertised or published within Texas. Since 1991, COPA has authorized some independent travel agents located in Texas to make reservations and issue tickets on COPA flights, and has given these agents COPA "plates" to use in issuing COPA tickets. Sales of COPA tickets through such agents totaled $7,957 in 1991; $31,934 in 1992; and $22,948 through May 1993. Tickets for COPA flights are also sold through interline agreements with other airlines. Upon request by travel agents who are located in Texas, COPA has sent brochures and flight schedules.

COPA has a contract with a company located in Texas for the overhaul of certain jet engines. This company has overhauled two COPA engines since this accident, on aircraft not involved in this accident. Since the accident, COPA employees have travelled to Texas in connection with the overhaul of COPA jet engines, and COPA ramp agents have travelled to Texas for training by Continental in handling Continental Airlines flights arriving in Panama. COPA has communicated by facsimile and telephone with business groups within Texas. A COPA representative also attended a travel seminar in Texas, and COPA representatives have met with Continental representatives in Texas regarding a proposed interline agreement.

2. Subject Matter Jurisdiction

A. Diversity Jurisdiction

Plaintiffs plead that defendant Rockwell-Collins International, Inc. ("Rockwell-Collins") is a Texas corporation, precluding jurisdiction based on diversity between the parties. At a hearing held on September 29, 1993, Judge Hughes dismissed Rockwell-Collins from this action. (Docket Entry No. 35, p. 33). Plaintiffs now seek to add Collins Radio Company ("Collins") as a defendant to this suit. Plaintiffs' amended complaint alleges that Collins is a Texas corporation (Docket Entry No. 26, ¶ 8). This court is unable to determine whether diversity jurisdiction exists based on the current record. The issue is whether federal question jurisdiction is present.

B. Federal Question Jurisdiction: The Warsaw Convention

Defendants allege that the Warsaw Convention provides federal question jurisdiction over this case. Federal courts have original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331 (1993). Cases arising out of international air transportation are governed by the Warsaw Convention and are within federal court original jurisdiction. See, e.g., Boehringer-Mannheim Diagnostics, Inc. v. Pan American World Airways, Inc., 737 F.2d 456 (5th Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 951, 83 L.Ed.2d 959 (1985); In re Air Disaster at Lockerbie, Scotland on Dec. 21 1988, 928 F.2d 1267 (2nd Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991); Floyd v. Eastern Airlines, Inc., 872 F.2d 1462 (11th Cir.1989), rev'd on other grounds, 499 U.S. 530, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991); In re Mexico City Aircrash of October 31, 1979, 708 F.2d 400 (9th Cir.1983).

The courts are divided over whether the Warsaw Convention creates an exclusive cause of action and whether the Warsaw Convention preempts state law causes of action. Compare Boehringer-Mannheim Diagnostics, Inc. v. Pan American World Airways, Inc. with In re Air Disaster at Lockerbie, Scotland on Dec. 21, 1988. See also In re Aircrash in Bali Indonesia on April 22, 1974, 684 F.2d 1301, 1311 n. 8 (9th Cir.1982); In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1490 (D.C.Cir.1991) (Mikva, J., dissenting), cert. denied, Dooley v. Korean Air Lines, Ltd., ___ U.S. ___, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991).

The Fifth Circuit has held that the Warsaw Convention creates an exclusive cause of action and that it preempts state law claims for personal injury. Boehringer, 737 F.2d at 458-60. The Second Circuit has agreed. In re Air Disaster at Lockerbie, Scotland, 928 F.2d at 1273-78.

In Boehringer, the Fifth Circuit held that the Warsaw Convention creates an exclusive cause of action against air carriers. 737 F.2d at 458. The court stated its holding as follows:

The essential inquiry is whether the Convention provides the exclusive liability remedy for international air carriers by providing an independent cause of action, thereby preempting state law, or whether it merely limits the amount of recovery for a cause of action otherwise provided by state or federal law. We have not previously addressed this question. We hold today that the Warsaw Convention creates the cause of action and is the exclusive remedy.

Id. The court stated the following reasons for holding that the Warsaw Convention preempts state law:

An obvious major purpose of the Warsaw Convention was to secure uniformity of liability for air carriers..... That uniformity has both an international and intranational application. The law of Texas, as relates to the cause of action, is preempted.

Id. at 459. The Fifth Circuit concluded that the Warsaw Convention preempts state law "in the areas covered." Id.

The reasoning of the Boehringer court was recently followed by the Second Circuit in the case of In re Air Disaster at Lockerbie, 928 F.2d at 1273-78. The Second Circuit concluded that "the existence of separate state causes of action conflicts so strongly with the uniform enforcement of the Warsaw Convention that the normal presumption against preemption is overcome." Id. at 1278.

Plaintiffs argue that the Warsaw Convention merely limits the amount of damages recoverable against an air carrier and does not create an exclusive cause of action. Plaintiffs cite a line of cases recently decided by the Southern District of Florida. See Clark v. United Parcel...