Sulewski v. Federal Exp. Corp., 1186

• Decision Date: 20 May 1991
• Docket Number: D,No. 1186,1186
• Citation: 933 F.2d 180
• Parties: Dolores SULEWSKI, individually and as Executrix of the Estate of Leonard Sulewski, deceased, Plaintiff-Appellant, v. FEDERAL EXPRESS CORPORATION, Defendant-Appellee. ocket 90-9041.
• Court: U.S. Court of Appeals — Second Circuit

Page 180

933 F.2d 180

59 USLW 2713

Dolores SULEWSKI, individually and as Executrix of the Estate of Leonard Sulewski, deceased, Plaintiff-Appellant, v. FEDERAL EXPRESS CORPORATION, Defendant-Appellee.

No. 1186, Docket 90-9041.

United States Court of Appeals Second Circuit.

Argued March 21, 1991.

Decided May 20, 1991.

Melvin I. Friedman, New York City (David L. Fiol, Kreindler & Kreindler, New York City, of counsel), for appellant.

Robert E. Hirsch, New York City (Bigham, Englar, Jones & Houston, New York City, of counsel), for appellee.

Before FEINBERG, MESKILL and ALTIMARI, Circuit Judges.

MESKILL, Circuit Judge:

Article 17 of the Warsaw Convention, Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934), 49 U.S.C. app. Sec. 1502 note (1988) ("Warsaw Convention" or "Convention") establishes conditions under which an international air carrier can be held liable for injuries to its passengers. This appeal requires us to determine whether an aircraft mechanic assigned to specific flights of a cargo carrier is a "passenger" within the meaning of the Convention. Confronted with cross-motions for summary judgment, the United States District Court for the Southern District of New York, Conboy, J., ruled as a matter of law that appellant's husband, Leonard Sulewski, was not a "passenger" when a cargo carrier to which he was assigned crashed, killing all aboard. The court therefore granted appellee Federal Express Corporation's motion for summary judgment and dismissed the complaint. We agree and affirm.

BACKGROUND

Leonard Sulewski worked for the cargo carrier, Flying Tiger Line, Inc. He was employed as an aircraft mechanic and performed maintenance and repairs on Flying Tiger aircraft. Unlike most aircraft mechanics in Flying Tiger's employ, Sulewski was not assigned to one of the airports on the cargo carrier's worldwide routes. As one of seven members of the so-called "Magnificent Seven," he was assigned to specific flights that were scheduled to land at airports where Flying Tiger did not employ aircraft mechanics. Because Sulewski was not assigned to an airport, he used his home in New Jersey as a base. From there, Flying Tiger assigned him to duty on specific flights.

A collective bargaining agreement governed Sulewski's employment relationship with Flying Tiger. Under the agreement, Sulewski received his monthly salary irrespective of what he did for the carrier during a given month as long as he performed his duties with respect to the flights to which he was assigned. The parties stipulated that Sulewski performed the following duties:

1. the supervising [of] the aircraft ground handling and fueling;

2. the responsibility for clearance of all log book items;

3. the pre-flight and post-flight inspections on the aircraft for the flight he was assigned to;

4. the communication to Flying Tiger maintenance control of any change in the airworthiness of the aircraft upon arrival at any location[.]

Each month Flying Tiger established a flight schedule for its seven traveling mechanics. According to one of these schedules, Sulewski was assigned to a series of flights in February 1989, to run from February 14 to February 18. Pursuant to this timetable, Sulewski boarded Flying Tiger Flight 77 at Los Angeles on February 14. Flight 77 proceeded to Honolulu, Hawaii, to Nandi (the Fiji Islands), to Auckland, New Zealand and finally to Sydney, Australia. The schedule then assigned Sulewski to Flight 9077, which was to travel from Melbourne, Australia to Singapore. After arranging independent transportation from Sydney to Melbourne, Sulewski boarded Flight 9077 on February 17 and flew to Singapore.

The schedule next directed Sulewski to hold in Singapore until February 18 for his next assignment, Flight 66, which was scheduled to fly from Singapore to Kuala Lumpur, Malaysia, and then to Hong Kong. Flying Tiger permanently stationed aircraft mechanics in Singapore and Hong Kong, but not in Kuala Lumpur, the intermediate stop of Flight 66. Pursuant to Flying Tiger's custom, Sulewski was not issued a passenger ticket for the flight. Flight 66 left Singapore on schedule on the morning of February 18. Regrettably, as the plane approached the runway at the Kuala Lumpur airport, it struck a ridge line and crashed, killing the pilot, co-pilot, flight engineer, and Sulewski.

Had Flight 66 not crashed in Kuala Lumpur, it would have proceeded to Hong Kong, where Sulewski's duties on this particular tour would have concluded. In Hong Kong he would have been debriefed and "destaged," that is, asked by Hong Kong-based Flying Tiger mechanics whether there were any problems with the aircraft. Once his responsibilities in Hong Kong had been completed, he would have been free to arrange his own transportation home via either a private passenger airline, for which he would have been reimbursed, or a Flying Tiger flight. Had he flown home on a Flying Tiger plane, he would have been off duty and therefore in a "deadhead" status.

Sulewski's wife, Dolores, brought an action against Federal Express Corporation, the successor-in-interest to Flying Tiger. Relying on the liability provisions of the Warsaw Convention and on common law negligence, she sought compensatory damages for her husband's wrongful death.

After extensive discovery, Federal Express and Dolores Sulewski each moved for summary judgment. Federal Express claimed that Sulewski was not a passenger on Flight 66 because he was traveling as an on-duty employee who had been assigned by his employer to the ill-fated flight. Therefore, reasoned Federal Express, workers' compensation represented plaintiff's exclusive remedy. Dolores Sulewski countered that because her husband's duties only could be performed on the ground and because he had no specific responsibilities in the air, he was indeed traveling as a passenger on Flight 66.

The court framed the question presented by the cross-motions for summary judgment in this way: "whether Leonard Sulewski 'was aboard the flight primarily to perform ... [his] employment obligations, so that [he] was not a "passenger." ' " Sulewski v. Federal Express Corp., 749 F.Supp. 506, 511 (S.D.N.Y.1990) (quoting In re Mexico City Aircrash of October 31, 1979, 708 F.2d 400, 418 (9th Cir.1983)) (bracketed words inserted by district court). Relying primarily on the Ninth Circuit's opinion in Mexico City Aircrash, the district court held as a matter of law that Sulewski was not a "passenger" on Flight 66. The court accordingly granted Federal Express' motion for summary judgment and dismissed the complaint. Dolores Sulewski appealed, contending that (1) the district court applied an inappropriate test for determining "passenger" status, (2) the court erred in denying her motion for summary judgment, and (3) material factual disputes precluded the court from entering summary judgment against her.

DISCUSSION

Our review of summary judgment decisions follows a familiar pattern: review is de novo, Burtnieks v. City of New York, 716 F.2d 982, 985 (2d Cir.1983); we view the evidence in the light most favorable to the non-moving party, City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir.1988); the moving party is entitled to summary judgment if he can "show that there is no genuine issue as to any material fact[,]" Fed.R.Civ.P. 56(c); and "the substantive law will identify which facts are material," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Whether a material factual dispute exists in this case turns on the meaning of the term "passenger" in the Warsaw Convention. As an international treaty to which the United States is a member, the Warsaw Convention is " 'equal in stature and force to the domestic laws of the United States.' " In re Air Crash Disaster at Warsaw, Poland, 705 F.2d 85, 87 (2d Cir.) (quoting Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 801 (2d Cir.1971)), cert. denied, 464 U.S. 845, 104 S.Ct. 147, 78 L.Ed.2d 138 (1982). To ascertain the meaning of treaties, " 'we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties,' " Air France v. Saks, 470 U.S. 392, 396, 105 S.Ct. 1338, 1341, 84 L.Ed.2d 289 (1985) (quoting Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-32, 63 S.Ct. 672, 677-78, 87 L.Ed. 877 (1943)), in order to " 'give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties.' " Eastern Airlines, Inc. v. Floyd, --- U.S. ----, ----, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991) (quoting Saks, 470 U.S. at 399, 105 S.Ct. at 1342). We must start our analysis, however, with the pertinent provisions of the treaty. Saks, 470 U.S. at 397, 105 S.Ct. at 1341. The accuracy of the French to English translation that follows is not contested.

Article 1

(1) This convention shall apply to all international transportation of persons, baggage, or goods performed by aircraft for hire. It shall apply equally to gratuitous transportation by aircraft performed by an air transportation enterprise.

(2) For the purpose of this convention the expression "international transportation" shall mean 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 within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another power, even though that power is not a party to this convention. Transportation without such an agreed stopping place between territories subject to the sovereignty, suzerainty, mandate, or...