Federal District Court Opinions

LTD., Defendant. 00 Civ. 4276 (SHS), Consolidated with, 00
Civ. 4277 (SHS), 00 Civ. 4278 (SHS), 00 Civ. 4279 (SHS), 00
Civ. 4281 (SHS) United States District Court, S.D. New
York. April 18, 2001


SIDNEY H. STEIN, United States District Judge.

These five wrongful death claims were brought after Federal
Air flight 803 crashed in the country of Cote D’Ivoire in
Africa on June 26, 1998. The five decedents — all
United Nations employees — had been traveling on a
United Nations charter flight in connection with African
peacekeeping efforts. The complaint alleges that “Flight 803
had an itinerary which commenced in Angola, with
intermediate stops in Gabon, Togo, the Ivory Coast and
Burkina Faso,” and was ultimately to return to Angola.
(Compl. § 31; see also Driscoll Aff., Exh. 2 (flight
803 manifest setting forth round trip itinerary from Angola
with stops in Gabon, Togo, and Cote D’Ivoire).)

Federal Air (PTY) Ltd. has now moved to dismiss the
complaints in these actions pursuant to Fed.R.Civ.P.
12(b)(1) on the ground that the Court lacks subject matter
jurisdiction. Defendant’s motion is granted because the
Warsaw Convention, which governs these actions, does not
permit the claims to be brought in this Court.

For purposes of this motion to dismiss the complaints, the
allegations in the complaints are to be treated as true.
See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Atlantic
Mut. Ins. Co. v. Balfour MacLaine Intel Ltd., 968 F.2d 196,
198 (2d Cir. 1992). In addition, because the motion
challenges the subject matter jurisdiction of this Court,
evidentiary matters outside the pleadings may be considered.
See Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011
(2d Cir. 1986).

I. The Warsaw Convention Applies.

The Warsaw Convention, to which the United States adhered
in 1934, creates an exclusive cause of action for wrongful
death claims against airlines providing international
transportation. Convention for the Unification of Certain
Rules Relating to International Transportation by Air, Oct.
12, 1929, 49 Stat. 3000 (1934), 137 L.N.T.S. 11, reprinted
in note following 49 U.S.C. § 40105; see El Al
Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999); In re
Korean Air Lines Disaster, 932 F.2d 1475, 1484 (D.C. Cir.
1991); see also Benjamins v. British European Airways, 572
F.2d 913, 918-919 (2d Cir. 1978); Stanford v. Kuwait Airways
Corp., 648 F. Supp. 657, 660 (S.D.N.Y. 1986). Article 1(2)
of the Warsaw Convention defines “international
transportation” as follows:

Any transportation in which, according to the contract
made by the parties, the place of departure and the place
of destination . . . 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 . . . of another power.

49 U.S.C. § 40105 note.

Thus, both passenger and carrier must agree that the
carrier will transport the passenger from one country to
another in order for the Warsaw Convention to be applicable
to these claims. See Block v. Compagnie Nationale Air
France, 386 F.2d 323, 330-31 (5th Cir. 1967). Plaintiffs
assert, correctly, that the aircraft charter agreement
between the U.N. and Federal Air is not a valid contract of
carriage pursuant to the Warsaw Convention definition of
“international transportation” because it does not state
the required points of departure, destination, and stopping
places, but rather gave the U.N. the right to select
departures and destinations in the future. It is simply a
time charter agreement, pursuant to which Federal Air
agreed to provide two aircraft and crews to be used at the
discretion of the U.N. on an as-needed basis.

Plaintiffs also correctly state that pursuant to Article
1(2), the Convention’s scope is limited to those cases in
which there is a contract of carriage pursuant to which the
carrier has agreed to transport a passenger from one
country to another along designated points and the
passenger has agreed to be so transported. Plaintiffs
contend that because Flight 803 was a charter flight
— and Federal Air concedes that the passengers never
possessed airline tickets evidencing an agreement by the
passengers to the flight route — there is no
“contract made by the parties” for international
transportation pursuant to Article 1(2), and the Warsaw
Convention thus does not apply. 49 U.S.C. § 40105

However, the case law is clear that unticketed, non-fare
paying travelers are still covered by the Convention, as
long as there is at some point a “contract of carriage”
consisting of “`a promise, an undertaking, on the part of
the carrier to transport the passenger, and the consent of
the passenger.'” Sulewski v. Federal Express Corp., 933
F.2d 180, 183-84 (2d Cir. 1991) (quoting Block, 386 F.2d at
333.) The Warsaw Convention has been held to apply to
international charter flights even where the passengers did
not purchase the carriage themselves and have not been
issued tickets. See Miceli v. MGM Grand Air, 51 Cal.App.4th
702, 59 Cal.Rptr.2d 311 (Ct.App. 1996); Block, 386 F.2d at
336, 353; see also Molitch v. Irish International Airline,
436 F.2d 42, 43-44 (2d Cir. 1970).

First, there are no indications that the decedents were
anything but consenting passengers. There are no
allegations that they were taken upon the flight without
their consent and any such claim would be ludicrous in the
context of these actions. Nor are the decedents alleged to
be Federal Air employees who were required to be on the
flight. See, e.g., Sulewski, 933 F.2d at 184-85. The
allegations, along with the flight manifest listing each of
the decedents as passengers and the departure and
destination locations, (Driscoll Aff., Exh. 2), leads the
Court to the logical conclusion that the decedents had
voluntarily agreed to take the flight with knowledge of its
intended route. Second, by referring in the complaint to
the specific “itinerary” of the flight, plaintiffs concede
that the flight had fixed international departure and
destination points and was not diverted from a intended
domestic course.

The Warsaw Convention thus applies to the present dispute:
Federal Air agreed to transport the passengers from one
country to another, and the passengers at some undefined
point prior to flight consented to that transport. See,
e.g., Block, 386 F.2d at 330-31. The carriage contract
provided for round-trip international transportation from
Luanda, Angola, which is “within the territory of a single
High Contracting Party” and there was “an agreed stopping
place within a territory . . . of another power,” namely
Cote D’Ivoire and Togo, both of which are contracting

II. There Is No Basis for Bringing these Actions in the
United States Pursuant to the Warsaw Convention.

Article 28(1) of the Convention provides that a wrongful
death action that arises from international transportation
can be brought only in one of four alternative fora: (1)
where the carrier is domiciled; (2) where the carrier has
its principal place of business; (3) where the carrier has
a place of business through which the contract was made; or
(4) the place where the transportation was to end, known
technically as the “place of destination.” 49 U.S.C.
§ 40105 note. It is well-established that there is
no federal jurisdiction over a Warsaw Convention claim
unless one of the specified fora is in the United States.
See Klos v. Polskie Linie Lotnicze, 133 F.3d 164, 167 (2d
Cir. 1997); In re Alleged Food Poisoning Incident, March,
1984, 770 F.2d 3, 5 n. 2 (2d Cir. 1985).

It is uncontested that (i) Federal Air is incorporated
under South African law and domiciled in South Africa, (ii)
Federal Air maintains its principal place of business in
South Africa, and (iii) the place of destination was
Angola. Thus, the issue for resolution on this point is
whether Federal Air “has a place of business through which
the contract was made” in the United States. There is no
evidence or allegation that Federal Air has a place of
business in the United States, or any presence in the
United States such as a ticketing agent, through which the
decedents agreed upon the transportation. See, e.g., Eck v.
United Arab Airlines, 360 F.2d 804, 814 (2d Cir. 1966).
Plaintiffs do not allege that the decedents’ individual
travel arrangements were even booked in the United States.

Federal Air states that the contract of transportation was
issued by it in South Africa, while plaintiffs contend that
the last act necessary to complete the making of the
charter agreement at issue was the signature of the
relevant U.N. official that was affixed in New York. (Cook
Decl., Exhs. 6, 7). Plaintiffs essentially attempt to deem
the United Nations to be the ticketing agent of Federal
Air. However, as previously observed, the mutual consent
requisite for a contract of carriage for purposes of the
Warsaw Convention did not occur when Federal Air and the
U.N. agreed upon the charter arrangement; rather, it
occurred when the decedents consented to being transported
on a set itinerary and Federal Air promised to transport
them. See Boyar v. Korean Air Lines, 664 F. Supp. at 1484,
1487 (D.D.C. 1987). There has thus been no showing that
Federal Air had a place of business in the United States
through which the contract was made.

Last, plaintiffs contend that Federal Air’s conduct with
respect to the U.N. in executing the Charter Agreement and
the representations of fact made in that document estop
Federal Air from denying that the United States is a
permissible forum. However, subject matter jurisdiction can
neither be waived nor created nor conferred by any
determination of the parties. See Republic of the
Philippines v. Marcos, 806 F.2d 344 (2d Cir. 1986);
Insurance Corp. of Ireland v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702 (1982).

Accordingly, Federal Air’s motion to dismiss the complaints
in these actions for lack of subject matter jurisdiction is