The opinion of the court was delivered by: METZNER
Defendant moves to dismiss the complaint for lack of subject matter jurisdiction. The motion was referred to Magistrate Bernikow who has filed his report pursuant to 28 U.S.C. § 636(b)(1)(B) recommending that the motion be granted. I agree with the recommendation.
Originally, the motion was predicated on the fact that both parties are aliens, and the court does not have diversity jurisdiction under 28 U.S.C. § 1332. Karakatsanis v. Conquestador Cia. Nav. S.A., 247 F. Supp. 423 (S.D.N.Y.1965).Plaintiff now seeks to amend the complaint to allege a violation of the Warsaw Convention and thus the existence of a claim arising under a treaty of the United States. If true, this would confer jurisdiction pursuant to 28 U.S.C. § 1331(a).
In Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798 (2d Cir. 1971), the court has set forth the analysis to be made in determining the jurisdictional questions raised in an action predicated on the Warsaw Convention. The court there held that:
"The Warsaw Convention, by virtue of its status as a treaty made under the authority of the United States, is the supreme law of the land, equal in stature and force to the domestic laws of the United States." Smith, supra at 801.
Looking to the Convention we find that international or treaty jurisdiction does lie under Article 28(1) since the place of destination of the plane trip was New York. Along with treaty jurisdiction there is also subject matter jurisdiction pursuant to 28 U.S.C. § 1331(a), unless the Warsaw Convention does not, by its terms, create a right of action for personal injuries.
In this circuit, at least, the law is clear that the Warsaw Convention does not create a new or independent right of action.Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir. 1957); Komlos v. Compagnie Nationale Air France, 111 F. Supp. 393 (S.D.N.Y.1952). The First Circuit holds to the contrary, Seth v. British Overseas Airways Corp., 329 F.2d 302 (1st Cir.), cert. denied. 379 U.S. 858, 85 S. Ct. 114, 13 L. Ed. 2d 61 (1964), as do several other state jurisdictions. See "Article 28 of the Warsaw Convention: A Suggested Analysis," 50 Minn.L.Rev. 697, 711, n. 60 (1966). As far as the United States is concerned, the Convention does not create the cause of action, it merely provides for the procedures to be followed and limitations on any existing right of action within its jurisdiction.
Plaintiff hypothecates that although she has reason to believe that the accident occurred within the territorial limits of the United States, if it turns out to the contrary, she will be denied any forum within which to bring her action. If her worst fears come true, she will be denied a forum in the United States, both federal and state, but the Convention does not create subject matter jurisdiction in this country. However, other forums do exist, although perhaps burdensome, to be availed of.
The request to amend the complaint is denied and the complaint is dismissed.
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