Winsor v. United Air Lines, Civ. A. No. 1926.

CourtUnited States District Courts. 3th Circuit. United States District Court (Delaware)
Writing for the CourtLAYTON
Citation159 F. Supp. 856
PartiesCharles H. WINSOR, individually and as Administrator of the Estate of Alma L. Winsor, Deceased, Plaintiff, v. UNITED AIR LINES, Inc., Defendant.
Docket NumberCiv. A. No. 1926.
Decision Date30 January 1958

159 F. Supp. 856

Charles H. WINSOR, individually and as Administrator of the Estate of Alma L. Winsor, Deceased, Plaintiff,
v.
UNITED AIR LINES, Inc., Defendant.

Civ. A. No. 1926.

United States District Court D. Delaware.

January 30, 1958.


159 F. Supp. 857

Stewart Lynch (of Hastings, Lynch & Taylor), Wilmington, Del., for plaintiff. Theodore E. Wolcott, New York City, of counsel.

Edwin D. Steel, Jr., and Harvey S. Kronfeld (of Morris, Steel, Nichols & Arsht), Wilmington, Del., for defendant. Haight, Gardner, Poor & Havens, New York City, of counsel.

LAYTON, District Judge.

In recognition of what appear to be the better-reasoned authorities, defendant

159 F. Supp. 858
concedes for the purposes of this suit that the Warsaw Convention, 49 Stat. 3000, of itself does not create a cause of action.2 Noel v. Linea Aeropostal Venezolana, 2 Cir., 247 F.2d 677

However, defendant contends that it is not essential for the purposes of invoking § 1441(b) that the Treaty created the cause of action providing a construction of the Treaty is necessary. I am inclined to agree with defendant that it will be necessary during the course of the trial to construe the Treaty but differ with its argument that the necessity for construction brings this matter within the purview of § 1441(b).

Because of defendant's concession, we assume for the purposes of this suit that both counts are based upon the Colorado Death Act. In fact, both counts plead the Act3 and while the first count recites paragraphs 17 and 20 of the Warsaw Convention and seeks recovery in the maximum amount specified by that Treaty, nevertheless, it is apparent not only from the Complaint but from plaintiff's brief that he looks to the State Act, not the Treaty, as the source of the right to sue.4

Preliminarily, it might be argued with some persuasiveness that the combination of defendant's concession, the deliberate pleading of the Colorado Death Act in both counts of the Complaint and plaintiff's disclaimer of any intention to rely on the Treaty as the basis for his claim are, in themselves, sufficient to deny jurisdiction. Clearly, plaintiff did not have to plead paragraphs 17 and 20 of the Treaty in order to state a good cause of action and, particularly, paragraph 20 would seem to represent a matter of defense only. Under the circumstances, the following quotation from Gully v. First Nat. Bank, 299 U.S. 109, 113, 57 S.Ct. 96, 98, 81 L.Ed. 70, is in point:

"Indeed, the compaint itself will not avail as a basis of jurisdiction insofar as it goes beyond a statement of the plaintiff's cause of action and anticipates or replies to a probable defense."

But other, and more substantial reasons support the motion to remand. The leading case on the question of the right of removal under § 1441(b) is Gully v. First Nat. Bank, above cited. There, Justice Cardozo said in part:

"How and when a case arises `under the Constitution or laws of the United States' has been much considered in the books. Some tests are well established. To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action. * * The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. * * * A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto * * *, and the
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15 practice notes
  • State of New Jersey v. Moriarity, Civ. A. No. 262-64.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 31, 1967
    ...Mut. Life Insurance Co. v. United Office & Professional Workers of America, 93 F. Supp. 296 (D.N.J., 1950); Winsor v. United Air Lines, 159 F.Supp. 856 (D. Del.1958); Maurer v. International Typographical Union, 139 F.Supp. 337 (E.D.Pa., 1956); Walls v. City of New York, 156 F.Supp. 3 (D.C.......
  • Elf Aquitaine, Inc. v. Placid Oil Company, Civ. A. No. 85-182 MMS to 85-185 MMS.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • December 27, 1985
    ...whether "pragmatic considerations" should be used to tip the balance for federal jurisdiction. See Winsor v. United Airlines, Inc., 159 F.Supp. 856, 860 (D.Del.1958) (court should decline jurisdiction of removed case where jurisdiction is questionable). Considering the effect of granting ju......
  • Pan American Petroleum Corp. v. Cities Service Gas Co., Civ. A. No. W-1595.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • December 31, 1958
    ...be resolved against the removal of the cause. Kansas v. Bradley, C.C.D.Kan.1885, 26 F. 289; Winsor v. United Air Lines, D.C.D.Del.1858, 159 F.Supp. 856; Aetna Ins. Co. v. City of Malden, D.C.E.D.Mo. 1952, 102 F.Supp. 126; John Hancock Mutual Life Ins. Co. v. United Office & Professional Wor......
  • Welch v. American Airlines, Inc., Civil No. 95-2001 (DRD).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • June 30, 1997
    ...F.Supp. 1238 (S.D.N.Y.1975); Zousmer v. Canadian Pac. Air Lines, Ltd., 307 F.Supp. 892 (S.D.N.Y.1969); Winsor v. United Air Lines, Inc., 159 F.Supp. 856 (D.Del. 1958). See generally 13B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3563 (2d ed. 198......
  • Request a trial to view additional results
15 cases
  • State of New Jersey v. Moriarity, Civ. A. No. 262-64.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 31, 1967
    ...Mut. Life Insurance Co. v. United Office & Professional Workers of America, 93 F. Supp. 296 (D.N.J., 1950); Winsor v. United Air Lines, 159 F.Supp. 856 (D. Del.1958); Maurer v. International Typographical Union, 139 F.Supp. 337 (E.D.Pa., 1956); Walls v. City of New York, 156 F.Supp. 3 (D.C.......
  • Elf Aquitaine, Inc. v. Placid Oil Company, Civ. A. No. 85-182 MMS to 85-185 MMS.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • December 27, 1985
    ...whether "pragmatic considerations" should be used to tip the balance for federal jurisdiction. See Winsor v. United Airlines, Inc., 159 F.Supp. 856, 860 (D.Del.1958) (court should decline jurisdiction of removed case where jurisdiction is questionable). Considering the effect of granting ju......
  • Pan American Petroleum Corp. v. Cities Service Gas Co., Civ. A. No. W-1595.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • December 31, 1958
    ...be resolved against the removal of the cause. Kansas v. Bradley, C.C.D.Kan.1885, 26 F. 289; Winsor v. United Air Lines, D.C.D.Del.1858, 159 F.Supp. 856; Aetna Ins. Co. v. City of Malden, D.C.E.D.Mo. 1952, 102 F.Supp. 126; John Hancock Mutual Life Ins. Co. v. United Office & Professional Wor......
  • Welch v. American Airlines, Inc., Civil No. 95-2001 (DRD).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • June 30, 1997
    ...F.Supp. 1238 (S.D.N.Y.1975); Zousmer v. Canadian Pac. Air Lines, Ltd., 307 F.Supp. 892 (S.D.N.Y.1969); Winsor v. United Air Lines, Inc., 159 F.Supp. 856 (D.Del. 1958). See generally 13B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3563 (2d ed. 198......
  • Request a trial to view additional results

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