Mertens v. Flying Tiger Line, Inc.

• Decision Date: 16 February 1965
• Docket Number: Docket 28690.,No. 141,141
• Parties: Frederic T. MERTENS, Sr., individually and as Administrator of the Estate of Frederic Thorn Mertens, deceased, and Margaret S. Mertens, Plaintiffs-Appellants-Appellees, v. The FLYING TIGER LINE, INC., Defendant-Appellee-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

341 F.2d 851 (1965)

Frederic T. MERTENS, Sr., individually and as Administrator of the Estate of Frederic Thorn Mertens, deceased, and Margaret S. Mertens, Plaintiffs-Appellants-Appellees, v. The FLYING TIGER LINE, INC., Defendant-Appellee-Appellant.

No. 141, Docket 28690.

United States Court of Appeals Second Circuit.

Argued October 27, 1964.

Decided February 16, 1965.

COPYRIGHT MATERIAL OMITTED

Clarence Fried, New York City (Hawkins, Delafield & Wood, New York City, on the brief) (Ronald Charles Wolf, New York City, of counsel), for plaintiffs-appellants-appellees.

Austin P. Magner, New York City (Condon & Forsyth, New York City, on the brief) (George N. Tompkins, Jr., New York City, of counsel), for defendant-appellee-appellant.

Before LUMBARD, Chief Judge, and HAYS and MARSHALL, Circuit Judges.

MARSHALL, Circuit Judge.

An action was commenced in the Southern District of New York to recover damages resulting from a death caused by an airplane accident in Japan. Decedent's parents brought the action in their individual capacity, and the father also acted in a representative capacity as the administrator appointed under New Jersey Law. The owner and operator of the airplane, a Delaware corporation doing business in New York, Flying Tiger Line, Inc., was served in New York and made defendant. Jurisdiction was based on diversity of citizenship, 28 U.S. C. § 1332.

At the outset we are faced with a question whether the Warsaw Convention, 49 Stat. 3000, is applicable. There is no doubt that the airflight in question was "international." The plane departed from Travis Air Force Base, San Francisco, California and the point of destination was Tachikawa Air Force Base, Tokyo, Japan, and both Japan and the United States are parties to the Convention. Instead, doubts as to the applicability of the Convention arise from the fact that when President Franklin D. Roosevelt, with the advice and consent of the Senate, adhered to the Warsaw Convention, he did so subject to the reservation, provided for in the Additional Protocol, 49 Stat. 3025, that the Warsaw Convention shall not apply to international transportation that may be "performed by the United States," id. at 3013. It is urged that because defendant's plane was regularly and in this instance chartered by the United States for the transportation of military cargo and personnel to military destinations this international transportation was "performed by the United States," thereby making the Convention inapplicable. We are of the opinion, however, that the transportation was performed by the Flying Tiger Line, the owner and operator of the aircraft, and that it was performed for the United States, not by the United States. See Warren v. The Flying Tiger Line, Inc., 234 F.Supp. 223, 231 (S.D.Cal.1964). The regularity of the chartering relationship between the United States and defendant gives us some cause to look upon this analytic distinction with some circumspection. But these doubts are dispelled by the negotiations surrounding the adoption of the Hague Protocol of 1955. See generally, International Conference of Private Air Law, The Hague, September 1955, International Civil Aviation Organization, Doc. 7686-LC/140.

A draft protocol was prepared by the Legal Committee of the International Civil Aviation Organization at Rio de Janeiro in September 1953 and was submitted to the Hague Conference in September 1955. It sought to amend Article 2 of the Convention to read: "The Convention shall not apply to * * * carriage of persons, cargo and baggage for military authorities by aircraft the whole capacity of which has been reserved by such authorities." The natural inference from this effort to amend the Convention is that without such an amendment the Convention would be applicable to such flights, or at least those proposing the amendment thought so. The proposed amendment was rejected by the Conference, though not because the representatives thought this exclusion was already provided for in Article 2. Instead, the representatives thought it more appropriate to let each individual Contracting Party, if it so chose, to make the Convention inapplicable to flights chartered by the military. Accordingly, a nation adhering to the Protocol was granted the legal power to declare that the Convention shall not apply to military charter flights on aircraft registered in that country, Article XXVI, Hague Protocol (Protocol Amending Convention for the Unification of Certain Rules to International Carriage by Air, The Hague, September 28, 1955), S.Doc.No. Executive H., 86th Cong., 1st Sess. The United States has not yet ratified the Hague Protocol and obviously has not made the requisite declaration under that Protocol. The unavoidable conclusion is that the Warsaw Convention, as it is presently binding on the United States, is applicable to the flight in this suit.

The determination that the Warsaw Convention is applicable is not the end of our problems. The significance of this fact remains to be decided. The most controverted issues in this litigation involve the effect of the Convention on plaintiffs' choice of forum (Article 28 (1)) and the limitation on defendant's liability (Articles 3(2), 22(1) and 25).

I. Choice of Forum

Article 28(1) of the Warsaw Convention 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."

Defendant argues that Article 28 (1) establishes four "places" within the territory of a High Contracting Party where an action for damages can be brought;¹ and that a court located in another "place" within the territory of a High Contracting Party is without subject matter jurisdiction to maintain an action arising out of an airflight covered by the Convention; notwithstanding the internal jurisdictional laws. Defendant moved to dismiss for lack of subject matter jurisdiction on the ground that the District Court for the Southern District of New York was not located in a "place" that satisfied the criteria of Article 28 (1). The principal place of business of the carrier was Burbank, California; the alleged contract of transportation was made at Travis Air Force Base at San Francisco, California; the place of destination was a point in Japan; and the domicile of the carrier was claimed to be the state of incorporation, Delaware.

However, we read Article 28(1) quite differently. The "places" specified refer to the High Contracting Parties, not to areas within a particular High Contracting Party. An action may be brought, at the option of the plaintiff, in the territory of a High Contracting Party, if the domicile of the carrier, the principal place of business of the carrier, the place of business at which the contract was made, or the place of destination is within that country. Plaintiff's choice of forum within that country is governed by the internal law, with all its intricacies and complexities, not by the Warsaw Convention. Pardonnet v. Flying Tiger Line, Inc., 233 F.Supp. 683 (N.D.Ill.1964); Pitman v. Pan American World Airways, Inc., 223 F.Supp. 887 (E.D.Pa.1963); Spencer v. Northwest Orient Airlines, Inc., 201 F.Supp. 504 (S.D.N.Y.1962); see McKenry, Judicial Jurisdiction Under the Warsaw Convention, 29 J. Air L. & Com. 205 (1963); Robbins, Jurisdiction Under Article 28 of the Warsaw Convention, 9 McGill L.J. 352 (1963).

The basic unit of international law is the nation-state and it is fair to assume, absent clear indications to the contrary, that Article 28(1), was written with reference to nation-states, not to areas and subdivisions of nation-states. The minutes of negotiations surrounding the drafting of the Treaty do not reveal the slightest concern with the problems relating to choice of forum within a nation-state, and in fact the discussion on Article 28(1) contains some indications that the drafters merely attempted to control choice of forum at the level of nation-states. See Minutes of II Conférence Internationale de Droit Privé Aérien, 4-12 Octobre 1929, Varsovie, ICAO Doc. 7838; Calkins, 26 J. Air L. & Com. 217, 229 (1959). The United States Senate certainly did not indicate that it understood that the Warsaw Convention would have any impact upon the rules governing the choice of forum within the federal system, or among the various states, see 78 Cong. Rec. 11577 (1934).

An analysis of the text leads us to the same conclusion. Under our interpretation plaintiff's choice of forum is restricted to the High Contracting Parties and it is further restricted to a High Contracting Party that is one of the enumerated places, thereby disqualifying, for example, the forums in the High Contracting Party where the accident fortuitously occurred, see Calkins, supra, p. 231, or those in the High Contracting Party where the passenger was domiciled, or those in other High Contracting Parties that had absolutely no contact with the flight, carrier, or passenger. Under defendant's interpretation it would be difficult to determine the geographical bounds of the "places" referred to: would they be cities, countries, states, judicial districts, circuits, provinces, cantons, or regions? On the other hand, if the enumerated places referred to High Contracting Parties the "places" can be given a more stable and uniform geographical definition — the territory of a High Contracting Party, a concept that is introduced in Article 1 of the Convention.

The United States certainly qualifies as one of the "places" enumerated in Article 28(1) and that is sufficient basis for denying defendant's motion to dismiss for lack of subject matter jurisdiction; the domicile of the carrier, its principal place of business, and its place of business where...