The opinion of the court was delivered by: BRIEANT
This action was filed initially in the United States District Court for the District of Connecticut on April 13, 1982. By order dated January 6, 1984 made by the Hon. Robert C. Zampano, U.S.D.J., the action was transferred to this district since in personam jurisdiction could not be obtained there over co-defendant Trinidad & Tobago (BWIA International) Airways Corporation (sued as British West Indian Airways, Ltd. and hereafter "BWIA").
By motion filed June 21, 1984 and fully submitted on July 17, 1984, defendant BWIA seeks an order pursuant to Rules 12(b)(1) and (2) and 56, F.R.Civ.P., granting judgment as a matter of law dismissing the cross-claims. On the same papers, BWIA also seeks by oral motion to dismiss the complaint as against itself; such a dismissal had been agreed to by plaintiff, however, that agreement was given under the mistaken impression that the co-defendant American Airlines, Inc. ("American") would not contest the dismissal of BWIA. When the facts turned out otherwise, this Court authorized plaintiff to recede from her agreement.
The complaint alleges diversity of citizenship as the jurisdictional basis, and complete diversity is present. However, as to American, as will appear in our discussion of the facts which follows, liability without fault is predicated on the Warsaw Convention, 49 Stat. 3000, et seq. (1934), reprinted after 49 U.S.C. § 1502.
Plaintiff, an American citizen residing in Connecticut, testified on her deposition, and we assume for this motion that she was a ticketed international passenger on American's Flight No. 645, traveling on April 20, 1980 from Montego Bay, Jamaica to New York with an intermediate scheduled stop at Kingston, Jamaica. While the aircraft was on the ground at Kingston, where it received and discharged passengers, plaintiff walked down the moveable steps from the plane to the ground and spoke with her sister, a passenger on an Air Canada flight to Toronto, which also had a brief layover at Kingston, Jamaica. While speaking with her sister near the foot of the stairs, plaintiff was struck by the jet-wash of a nearby BWIA aircraft which knocked her down and threw her several feet causing personal injury.
As to BWIA the complaint is based solely on general negligence principles, since plaintiff never was a BWIA passenger. The cross-claim by American against BWIA is based essentially on common law principles of contribution or indemnity.
At issue before the Court is whether the original claim or the cross-claim may be adjudicated against BWIA in this forum in light of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602, et seq.
BWIA is licensed to do business in New York, where it has an agent to accept service of process and also operates a regular terminal facility. It is also a "foreign state" as that term is defined in 28 U.S.C. § 1603(a); a point not disputed, indeed affirmatively alleged in American's cross-claim.
Accordingly, this action may be maintained in a court of the United States only if BWIA is not immune from suit under 28 U.S.C. § 1604. The only relevant basis suggested for finding no immunity here is found in the third clause of 28 U.S.C. § 1605(a)(2) which reads in relevant part as follows:
"§ 1605. General exceptions to the jurisdictional immunity of a foreign state.
(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case --
(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state ...