Romero v. Argentinas

• Decision Date: 27 September 1993
• Docket Number: Civ. A. No. 93-3041 (AJL).
• Citation: 834 F. Supp. 673
• Parties: Antonio ROMERO and Claudia Romero, Plaintiffs, v. Aerolineas ARGENTINAS, Defendant.
• Court: U.S. District Court — District of New Jersey

834 F. Supp. 673

Antonio ROMERO and Claudia Romero, Plaintiffs, v. Aerolineas ARGENTINAS, Defendant.

Civ. A. No. 93-3041 (AJL).

United States District Court, D. New Jersey.

September 27, 1993.

COPYRIGHT MATERIAL OMITTED

Raquel Romero, Elizabeth, NJ, for plaintiffs.

Michael J. Holland, Condon & Forsyth, New York City, John R. Altieri, Hackensack, NJ, for defendant.

OPINION

LECHNER, District Judge.

This is an action by plaintiffs Antonio Romero and Claudia Romero (collectively the "Plaintiffs") to recover for injuries sustained in international air travel aboard an aircraft owned and operated by defendant Aerolineas Argentinas ("Aerolineas"). Jurisdiction is alleged pursuant to the Convention for the Unification of Certain Rules Relating to International Transportation by Air (the "Warsaw Convention"), 29 October 1934, 49 Stat. 3000, T.S. No. 876 (1934), reprinted at note to 49 U.S.C. § 1502, and 28 U.S.C. §§ 1331 and 1337.

Currently before the court is the issue of whether this case should be transferred to the United States District Court for the Southern District of New York. For the reasons set forth below, this matter is transferred to the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1631.¹

Procedural History

The Plaintiffs filed a complaint on 16 July 1993 (the "Complaint"). The Complaint sought recovery against Aerolineas under the Warsaw Convention and the Federal Aviation Program, 49 U.S.C.App. § 1301 et seq. Complaint at 1, 3.

On 23 July 1993, because of the allegations in the Complaint, the court issued the Order to Show Cause (the "Order to Show Cause"), directing the Plaintiffs to show cause "why this matter should not be transferred to the United States District Court for the Southern District of New York." Order to Show Cause at 2-3. The Order to Show Cause raised the issues of personal jurisdiction over Aerolineas and the appropriateness of venue. Id. at 2.

On 5 August 1993, the Plaintiffs filed an amended complaint (the "Amended Complaint"). The Amended Complaint contained substantially the same factual allegations as did the Complaint, but sought recovery only under the Warsaw Convention. Amended Complaint at 1, 3.

Facts

Plaintiffs are and were at all relevant times domiciled in the Township of Belleville, New Jersey. Romero Aff., ¶ 2.

Aerolineas is a corporation engaged in international air transportation under a permit issued by the United States Civil Aeronautics Board. Amended Complaint at 2; Aerolineas Brief at 3. Aerolineas states it is a "foreign corporation organized and existing under the laws of the Argentine Republic with its domicile and principal place of business in Buenos Aires, Argentina." Aerolineas Brief at 3. Aerolineas states it "transacts business within the State of New York." Id. The North American headquarters of Aerolineas is located in New York County, New York. Oroza Aff., ¶ 1. Aerolineas "does not operate and has never operated any flights from New Jersey." Id., ¶ 6.

Plaintiffs allege Aerolineas is a "corporation duly organized and existing under the law of the State of New York, with its principal office and place of business located at New York, New York." Amended Complaint at 2.

On 4 November 1991, Claudia Romero visited a travel agent, known as Monica's Travel, located in Newark, New Jersey. Oroza Aff., ¶ 4; Romero Aff., ¶ 2; Charge Form. Claudia Romero requested two round-trip tickets for transportation to and from Buenos Aires, Argentina aboard a flight operated by Aerolineas. Oroza Aff., ¶ 4; Romero Aff., ¶ 2; R. Romero Cert., ¶ 5. Claudia Romero paid for the requested tickets by Visa credit card. The Charge Form evidencing this transaction was completed and issued by Monica's Travel. Charge Form.

Monica's Travel did not have Aerolineas "ticket stock," the paper upon which tickets issued by Aerolineas are to be printed. Oroza Aff., ¶ 4. Consequently, the Charge Form was sent by Monica's Travel to the Aerolineas ticket office in New York County, New York (the "Aerolineas Ticket Office"). Id.

On 7 November 1991, the Aerolineas Ticket Office issued to the Plaintiffs two round trip tickets (the "Tickets") for travel from John F. Kennedy International Airport in Queens County, New York ("JFK") to Buenos Aires, Argentina on 25 December 1991 and from Buenos Aires to JFK on 1 February 1992. Oroza Aff., ¶¶ 3-4; A. Romero Ticket; C. Romero Ticket. The Tickets were then sent by the Aerolineas Ticket Office to Monica's Travel for delivery to the Plaintiffs. Oroza Aff., ¶ 4.

The Amended Complaint alleges that on 1 February 1992, the Plaintiffs boarded Aerolineas flight number 336 ("Flight 336") from Buenos Aires, Argentina to JFK at Ezeiza Airport ("Ezeiza") in Buenos Aires. Amended Complaint at 2, 3. Plaintiffs allege that while Flight 336 was still on the ground at Ezeiza, an emergency arose, requiring the "immediate evacuation of all passengers." Id. at 3. Plaintiffs allege that as a result of this evacuation, they were injured. Id.

Discussion

The parties are in agreement that the Warsaw Convention governs the Plaintiffs' claims against Aerolineas. Amended Complaint at 1; Plaintiffs' Brief at 3; Aerolineas Brief at 6.

The parties, however, disagree as to the effect of the Warsaw Convention on the issues of personal jurisdiction and venue in this case. Plaintiffs contend personal jurisdiction and venue are proper in the District of New Jersey pursuant to Article 28(1) of the Warsaw Convention, 49 U.S.C. § 1502, art. 28(1). Plaintiffs' Brief at 3-4. Aerolineas contends the Warsaw Convention does not speak to issues of personal jurisdiction and venue, and that personal jurisdiction and venue are improper in the District of New Jersey under applicable domestic law. Aerolineas Brief at 8-10.

A. The Warsaw Convention

The Warsaw Convention is an international treaty governing the liability of air carriers for injuries relating to international travel. 49 U.S.C. § 1502, art. 1. Duly ratified by Congress, the provisions of the Warsaw Convention are the supreme law of the land. See U.S. Const. Art. VI, cl. 2. As such, the Warsaw Convention supersedes conflicting prior federal legislation, and preempts any conflicting state laws. See In re Korean Airlines Disaster of Sept. 1, 1983, 798 F.Supp. 750, 753 (D.D.C.1992) (Warsaw Convention supersedes conflicting provisions of Death on the High Seas Act, 46 U.S.C.App. § 761 et seq.); In re Air Disaster Near Honolulu, Hawaii, 792 F.Supp. 1541, 1548 (N.D.Cal.1990) (Warsaw Convention pre-empts conflicting local laws).

The Warsaw Convention is intended to achieve uniformity in the area of air carrier liability. Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 551, 111 S.Ct. 1489, 1502, 113 L.Ed.2d 569 (1991); Evangelinos v. Trans World Airlines, Inc., 550 F.2d 152, 155 (3d Cir.1977). Although it does not preclude pleading in the alternative, the Warsaw Convention is the exclusive remedy against air carriers when it applies. Onyeanusi v. Pan American Airways, Inc., 952 F.2d 788, 793 (3d Cir.1992); Abramson v. Japan Airlines Co., 739 F.2d 130, 134 (3d Cir.1984), cert. denied, 470 U.S. 1059, 105 S.Ct. 1776, 84 L.Ed.2d 835 (1985).

Article 28(1)

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,² 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.

49 U.S.C. § 1502, Art. 28(1).

The forum provisions of Article 28(1) are national in scope. That is, they determine the nation in which a suit under the Warsaw Convention can be brought, and not the place within that nation in which jurisdiction and venue are appropriate. See Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 801 (2d Cir.1971) ("The view that Article 28(1) speaks only on the national plane has ... become the predominant view in the case law and in the commentaries."); In re Air Disaster Near Cove Neck, New York, 774 F.Supp. 725, 726 (E.D.N.Y.1991) ("This Article is jurisdictional in nature and the points of jurisdiction it specifies are national in scope."); Hill v. United Airlines, 550 F.Supp. 1048, 1053 (D.Kan.1982) ("Article 28(1) is not in any way concerned with the territorial subdivisions of the United States."); Pitman v. Pan American World Airways, Inc., 223 F.Supp. 887, 889 (E.D.Pa. 1963) ("Article 28 refers to national entities and not to geographical places within the nation.").

Therefore, Article 28(1) can only confer subject matter jurisdiction over a matter upon the courts of the United States as a whole. See Gayda v. LOT Polish Airlines, 702 F.2d 424, 425 (2d Cir.1983) ("Because Article 28 speaks to subject matter jurisdiction, it operates as an absolute bar to federal jurisdiction in cases falling outside its terms."); In re Air Disaster Near Cove Neck, 774 F.Supp. at 726 ("If, in any given action, the United States is not one of the fora specified by Article 28, the federal courts lack treaty jurisdiction under the convention and therefore federal subject matter jurisdiction over the controversy."); Jamil v. Kuwait Airways Corp., 773 F.Supp. 482, 484 (D.D.C.1991) (Article 28(1) determines "whether this court has jurisdiction over the subject matter of plaintiff's claim."); Boyar v. Korean Air Lines, 664 F.Supp. 1481, 1486 (D.D.C.1987) (same).

Article 28(1) does not determine the existence of personal jurisdiction or the appropriateness of venue in any particular Federal court. See Hill, 550 F.Supp. at 1054 ("We hold that the Warsaw Convention does not effect the court's jurisdiction or venue beyond affirming that this suit may properly be heard by a court located within the territorial limits of the United States."); Fabiano Shoe Co. v. Alitalia Airlines, 380 F.Supp. 1400, 1403 (D.Mass.1974) ("...