Pflug v. Egyptair Corp.

• Decision Date: 01 April 1992
• Docket Number: D,No. 1065,1065
• Citation: 961 F.2d 26
• Parties: Jackie PFLUG and Scott Pflug, Plaintiffs-Appellants, v. EGYPTAIR CORPORATION, a New York Corporation, Defendant-Appellee. ocket 91-9008.
• Court: U.S. Court of Appeals — Second Circuit

Page 26

961 F.2d 26

Jackie PFLUG and Scott Pflug, Plaintiffs-Appellants, v. EGYPTAIR CORPORATION, a New York Corporation, Defendant-Appellee.

No. 1065, Docket 91-9008.

United States Court of Appeals, Second Circuit.

Argued March 12, 1992.

Decided April 1, 1992.

Francis G. Fleming, New York City (Kreindler & Kreindler) for plaintiffs-appellants.

Christopher Carlsen, New York City (Condon & Forsyth) for defendant-appellee.

Before: OAKES, Chief Circuit Judge, WALKER, Circuit Judge, POLLACK, District Judge. ^*

MILTON POLLACK, Senior District Judge:

Plaintiffs, one of whom was a passenger on Egyptair, the national airline of Egypt, sustained injuries as a result of the hijacking of an international flight from Athens to Cairo. Both plaintiffs brought suit in the Eastern District of New York against the carrier's United States subsidiary, Egyptair Corp., which is not itself a carrier. Holding that the suit was subject to Article 28 of the Warsaw Convention on international air transportation, ¹ the District Court, Thomas C. Platt, Chief Judge, dismissed the Complaint for want of treaty jurisdiction.

We affirm.

BACKGROUND

Mrs. Pflug purchased a round-trip ticket in Athens for a flight from Cairo to Athens on Egyptair, the national airline of Egypt. During the return trip on November 23, 1985 on Egyptair Flight No. 648, terrorists In 1987, the plaintiffs brought an action for personal injuries sustained by Mrs. Pflug during the hijacking against a wholly-owned subsidiary of Egyptair, called Egyptair Corporation ("Egyptair Corp."), that is incorporated in New York. Plaintiffs are citizens of Minnesota. The Complaint alleges that jurisdiction exists in the district court under the Warsaw Convention and under the court's diversity jurisdiction.

                took control of the aircraft and forced the pilot to land on the Island of Malta.   While the aircraft was on the ground, the hijackers separated the American and Israeli passengers and began executing them.   They forced Mrs. Pflug to exit the aircraft and shot her in the head while she was standing on a movable set of stairs immediately adjacent to the aircraft door.   She fell to the ground onto the runway and lay there unattended, feigning death.   After five hours, employees of Egyptair removed her and, when they discovered that she was alive, sent her to a hospital
                

In its Answer, dated November 18, 1987, the defendant Egyptair Corp. admitted that it owned and operated the hijacked aircraft but denied that it was incorporated and domiciled in New York. On June 30, 1988, counsel for Egyptair Corp. submitted an affidavit to the court stating that the admission and the denial were both mistakes, caused by Egyptair's counsel's ignorance of the existence of the subsidiary "paper" New York corporation and its assumption that the party being sued was Egyptair, the Egyptian national airline.

On June 30, 1988, Egyptair Corp. moved to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) on the grounds that the United States does not qualify as one of the four fora specified in a provision of the Warsaw Convention placing limits on where suits under the Convention may be brought. Egyptair Corp. moved alternatively for summary judgment pursuant to Fed.R.Civ.P. 56 on the ground that the defendant Egyptair Corp. was not a carrier and did not operate the hijacked aircraft. The parties carried out discovery limited to the issue of whether the district court could exercise jurisdiction over the suit.

The District Judge granted the motion to dismiss on September 26, 1991 for lack of subject matter jurisdiction. The Court found, first, that the Warsaw Convention applied to all causes of action asserted in the Complaint. As a result, the plaintiffs could not base their action in the district court on diversity jurisdiction; their claims had to be asserted as authorized by the Convention or be dismissed. The Court further found that the provision of the Convention allowing plaintiffs to sue in the domicile of the carrier did not afford jurisdiction in the United States since the carrier was not domiciled here; its only domicile was in Egypt, and for purposes of the Convention, an airline has only one domicile.

DISCUSSION

Suits by passengers injured in international air travel are exclusively governed by the Warsaw Convention, a treaty that created an absolute right to compensation for passengers but at the same time imposed a liability limit on the amount they could recover from an airline. Warsaw Convention, arts. 17, 22, 49 Stat. 3018, 3019. In re Air Disaster at Lockerbie, Scotland on December 21, 1988, 928 F.2d 1267, 1271 (2d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991). The Convention sets limitations on who may be sued by an injured passenger and where suit may be brought. Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 800 (2d Cir.1971). Unless an action is brought in accordance with these limitations, the federal courts lack treaty jurisdiction under the Convention and jurisdiction over the subject matter if the suit fails. This Court has held that when an action is one that falls within the province of the Convention, and the Convention does not authorize suit in the jurisdiction in which the action is brought, "our inquiry ceases without an examination of diversity jurisdiction." Id. at 802. However, the Convention does not apply to all claims of injuries suffered in conjunction with international

air travel; thus, as an initial matter this Court must determine whether the Convention applies to all of plaintiffs' claims. Air France v. Saks, 470 U.S. 392, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985).

1. Whether or not the Warsaw Convention applies to all of plaintiffs' causes of action.

Article 17 of the Convention provides that:

The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, 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.

49 Stat. 3018. Plaintiffs argue that the district court should not have dismissed their Complaint because the Convention only applies to "accidents" and hijacking does not necessarily constitute an "accident" for purposes of the Convention. They claim that according to Saks, 470 U.S. at 405, 105 S.Ct. at 1345, the district court should have submitted the question of whether Mrs. Pflug's injuries resulted from an "accident" to the trier of fact. The plaintiffs further claim that at least some of their causes of action also fall outside Article 17 in that they seek recovery for injuries that did not occur while Mrs. Pflug was on the aircraft or during the operations of embarking or disembarking the aircraft.

These efforts by plaintiffs to avoid the application of the Warsaw Convention are unavailing. We have clearly held that a hijacking qualifies as an accident under Article 17. In Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir.1975), cert. denied, 429 U.S. 890, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976), former Chief Judge Kaufman stated in regard to Article 17 that "[i]t is undisputed, moreover, that a terrorist attack is considered an 'accident' within the purview of these provisions," id. at 33. Husserl v. Swiss Air Transport Co., 351 F.Supp. 702 (S.D.N.Y.1972), aff'd, 485 F.2d 1240 (2d Cir.1973) (per curiam ), was cited as authority for the same ruling. Id.

Contrary to plaintiffs' argument, the holding of these cases in this regard has not been affected by Saks, 470 U.S. at 392, 105 S.Ct. at 1338. In Saks, the Supreme Court held that the plaintiff passenger's ear injury could not constitute an "accident" under Article 17 unless it resulted from "an unexpected or unusual event or happening that is external to the passenger." Id. at 405, 105 S.Ct. at 1345. The Court noted that if the evidence as to whether an event fell within this definition was contradictory, the question should go to the trier of fact. However, a hijacking does not present a question of whether the event is unusual and external to the passenger; it clearly falls within the definition of accident. The very language of the Saks opinion relied on by plaintiffs cites approvingly the rule that terrorist acts are "accidents." The Court stated that:

Th[e] definition [of accident] should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries. [citation omitted]. For example, lower courts in this country have interpreted Article 17 broadly enough to encompass torts committed by terrorists or fellow passengers. [citing Day [v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir.1975) ] and cases from other jurisdictions]. In cases where there is contradictory evidence, it is for the trier of fact to decide whether an "accident" as here defined caused the passenger's injury. See DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193 (CA3 1978) (contradictory evidence on whether pressurization was normal).

Id. at 405, 105 S.Ct. at 1345.

Plaintiffs claim that some of Mrs. Pflug's injuries occurred on the tarmac and therefore did not "take place on board the aircraft or in the course of any of the operations of embarking or disembarking," but that is not relevant to the applicability of Article 17 to her case. Article 17 applies if the accident occurred in the aircraft or during the operations of embarking or disembarking;

                it does not put any limitation on where the injuries can have occurred.   The "accident" at issue in the instant case was the hijacking, and that hijacking took place on board the aircraft.   See People ex rel. Compagnie Nationale Air France v. Giliberto, 74 Ill.2d 90, 101, 23 Ill.Dec. 106, 110, 383 N.E.2d 977, 981 (1978), cert. denied, 441 U.S. 932, 99 S.Ct. 2052, 60 L.Ed.2d 660 (1979)
                

2. Whether suit was properly brought in the United...