The opinion of the court was delivered by: BYERS
This is a defendant's motion to dismiss or, in the alternative, to transfer the action to the United States District Court for the District of Colorado.
The plaintiff, a resident of Newfoundland, individually and as administrator of his deceased wife, sues to recover damages for her death, and otherwise as to be stated, by reason of the crash of the defendant's airplane in the vicinity of Longmont, Colorado, on November 1, 1955.
The tragedy was caused by the placing of a bomb in the airplane by one Graham, in order to bring about the death of his mother who was a passenger on the plane which also carried the plaintiff's decedent.
The explosion of the bomb, which Graham had placed in his mother's baggage, caused the crash of the plane and the death of all passengers and crew. The crime was discovered and Graham has paid his penalty.
The plaintiff's intestate who was a resident of Newfoundland, had purchased air transportation from Gander to Seattle, Washington, and return.
Thus the transportation was international and is governed by the so-called Warsaw Convention, 49 Stat. 3000; it involved air-flight from Gander to New York, thence to Seattle by way of Denver. The ticket was issued to plaintiff's decedent by Trans World Airlines, Inc., at Gander for the round trip transportation above described, with intermediate stops at New York both ways.
The trip from New York was known as United Flight No. 629 and included a scheduled stop at Chicago, Denver and Portland, Oregon, before arrival at Seattle; the Chicago and Denver stops were made, and in the latter city the plane was refueled and had its last service check. A new crew took over the operation of the flight at Denver, where a number of passengers, including Graham's mother, boarded the plane for the flight to Seattle, their baggage having been loaded on the plane before departure.
The foregoing summary is taken from the affidavit of one Petty, Vice-President in charge of Flight Operations for the defendant, and is not contradicted on the part of the plaintiff.
Seemingly the defendant will be required to prove that it took all reasonable measures to prevent the happening or that such measures were impossible of accomplishment; also to present proof of the cause of the disaster and the methods employed by the defendant in the loading of passengers' baggage.
By reason of the death of all who were on the plane, the fact of the explosion will necessarily be testified to by witnesses who observed it, of whom there are six; they apparently testified at the criminal trial of Graham.
Another witness will be one Stevenson, a pilot employed by the defendant, who was in the air at the time of the explosion and observed it from his plane.
Twenty persons are named who assisted in the collection and identification of the various parts of the plane after the explosion, and from those fragments and the description of the wreckage, those whose duty it was to investigate the happening were able to form an opinion of its cause; all but four of the foregoing reside in or near Denver, Colorado, and they reside in San Francisco, California.
It is said that other witnesses will be called who are employees of the Federal Bureau of Investigation and still others with regard to the purchase of dynamite by Graham. All of those witnesses are said to reside in or near Denver, except J. William Magee, a resident of Washington, D.C.
Seven employees of the defendant will testify concerning the method of loading the baggage aboard the plane in connection with this ...