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MCLOUGHLIN v. COMMERCIAL AIRWAYS LTD.
January 24, 1985
JOSEPH M. MCLOUGHLIN and ELIZABETH Z. MCLOUGHLIN, Plaintiffs,
COMMERCIAL AIRWAYS (PTY) LTD. a/k/a COMAIR, Defendant (No. 84 CV 2585) W.R. BRYAN, ADELE BRYAN, BRUCE MURRAY, ALICE MURRAY, HERBERT PETRY, JOSEPHINE PETRY, BEAUFORD W. ROBINSON, MURRAY RYAN, DOROTHY RYAN, WILLIAM SCHOOLER and JEAN SCHOOLER, Plaintiffs, v. COMMERCIAL AIRWAYS (PTY) LTD. a/k/a COMAIR, Defendant (84 CV 3794)
The opinion of the court was delivered by: PLATT
Defendant COMAIR moves for an order dismissing this action on the ground that the Court lacks personal jurisdiction over it or, alternatively, in the event personal jurisdiction is found to exist, on the ground that a New York court is an improper and inconvenient forum to determine this lawsuit.
In this action plaintiffs sue to recover for personal injuries allegedly suffered by them while passengers on a COMAIR flight from Johannesburg, South Africa, to Kruger National Park in Skukuza, South Africa, on October 9, 1982.
COMAIR is a South African corporation located in Johannesburg. It makes domestic flights and operates tours within South Africa.
Plaintiffs Joseph and Elizabeth McLoughlin are residents of the State of Connecticut.
They traveled to South Africa as members of a larger group of the Lions International Club ("the Lions Club") from the United States attending an executive meeting in South Africa. From its main office in Chicago, the Lions Club made arrangements in the Fall of 1981 through South African Airways' New York offices ("SAA New York) for the transportation of a group of its 130 top executives from the United States to South Africa and return trip. In connection with these arrangements and at the Lions Club's request, SAA New York booked space for approximately 80 members on a COMAIR tour package, which included round-trip flight from Johannesburg to Kruger Park and back and hotel accommodations at the Park for the night of October 9, 1982. SAA New York telexed a request to COMAIR for reservations, which COMAIR confirmed by reply telex. Payment for the COMAIR flights and accommodations were made by the Lions Club to SAA New York, which in turn remitted the funds to COMAIR.
In perfecting the foregoing arrangements, SAA New York operated under and pursuant to an exclusive General Sales Agency Agreement which it had made with COMAIR on August 25, 1972, wherein it was prescribed that "the General Sales Agent [SAA New York] shall perform the following functions on behalf of the Principal [COMAIR]":
(a) soliciting and promoting traffice for the services of the Principal and, if necessary, employing staff competent and sufficient to do so;
(b) with respect to passengers' transportation, holding out a passenger reservations facility to sales agents and the general public in the assigned territory;
(c) selection, appointment and cancellation of approved sales agents in accordance with the terms of the I.A.T.A. Resolutions;
(d) supervision and instruction of the Principal's sales agents in the territory of the General Sales Agent and settlement of accounts with said agents in respect of sales effected on the traffic documents of the General Sales Agents;
(e) display to the reasonable satisfaction of the Principal of timetables and other publicity material provided by the Principal at the premises of the General Sales Agent and the distribution of said timetables, publicity and information material to sales agents and other interested parties in accordance with the reason- able requirements of the Principal. Publicity material provided by the Principal and of a permanent or intrinsic value shall remain the property of the Principal;
(f) organization of special publicity or press campaigns for the Principal if and when required; the cost of such special campaigns to be separately agreed between the parties and paid for by the Principal;
(g) to take all reasonable action to enhance the goodwill of the Principal in the Territory of the General Sales Agent in the Principal's relations' with the ...
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