UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
February 28, 1985
MARIA DE LA LASTRA PETRIRE, PLAINTIFF-APPELLANT,
SPANTAX, S.A., DEFENDANT-APPELLEE
Appeal from a judgment of the District Court for the Eastern District of New York (Eugene H. Nickerson, Judge) dismissing a suit against defendant for lack of subject matter jurisdiction. 577 F. Supp. 1013. Affirmed.
Newman, Cardamone, and Davis,*fn* Circuit Judges.
JON O. NEWMAN, Circuit Judge:
This appeal presents a narrow issue arising under the Warsaw Convention:*fn1 Where one carrier issues two ticket booklets for a round-trip journey, is the "destination" for purposes of the Treaty's jurisdictional provision the designed ending point of the round-trip journey or the designated ending point of the round-trip journey or the designated ending point of the fatal travel covered by the first booklet. Maria de la Lastra Petrire appeals from a judgment of the District Court for the Eastern District of New York (Eugene H. Nickerson, Judge) dismissing, for lack of subject matter jurisdiction, her suit against Spantax, S.A., a Spanish airline. In re Air Crash Disaster at Malaga, Spain, 577 F. Supp. 1013 (E.D.N.Y. 1984). Because we agree with Judge Nickerson that jurisdiction was lacking on the undisputed facts of this case, we affirm.
Appellant brought suit as the widow and mother of the minor children of Carlos Conrado, who was killed in the crash of a Spantax aircraft as it took off from Malaga, Spain, en route to New York. Conrado had contracted with Spantax for air travel from Madrid to New York on a flight that stopped at Malaga and for a return flight from New York to Madrid. He was ticketed to return to Madrid five days after his expected arrival in New York. The ticketing was accomplished at the Madrid office of Spantax by the simultaneous issuance of two ticket booklets, consecutively numbered. The first contained two flight coupons, one for the flight from Madrid to Malaga and the second for the flight from Malaga to New York. The second booklet contained a single flight coupon for the flight from New York to Madrid.*fn2
Article 28(1) of the Warsaw Convention specifies the permissible jurisdiction in which suit may be brought:
An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court  of the domicile of the carrier or  of his principal place of business, or  where he has a place of business through which the contract has been made, or before the court  at the place of destination.
Appellant concedes that the first three locales specified in Article 28(1) would require her to bring suit in Spain. However, she asserts the right to sue in the United States*fn3 because New York was the destination listed on Conrado's Madrid-New York ticket.
Appellant does not dispute that, for purposes of the Warsaw Convention, the "destination" of a round-trip journey is the same as the starting point -- in this case, Spain. Butz v. British Airways, 421 F. Supp. 127, 130-31 (E.D. Pa. 1976), aff'd mem., 566 F.2d 1168 (3d Cir. 1977); Grein v. Imperial Airways, Ltd.,  1 K.B. 50, 1 Av. Cas. (CCH) 622 (1936); see R. Mankiewicz, The Liability Regime of the International Air Carrier § 32, at 30 (1981). Her point, however, is that the "destination" of a journey must be determined from the terms of the ticketing contract and that in this case the ticket booklet for travel from Madrid to New York was the pertinent contract.
There is no doubt that a "destination" is to be determined from the contract for transportation, whether the destination is pertinent to national jurisdiction under Article 28, Gayda v. LOT Polish Airlines, 702 F.2d 424 (2d Cir. 1983), or to the international nature of a journey and the consequent application of the Treaty, Grey v. American Airlines, 95 F. Supp. 756 (S.D.N.Y. 1950), aff'd, 227 F.2d 282 (2d Cir. 1955), cert. denied, 350 U.S. 989, 100 L. Ed. 855, 76 S. Ct. 476 (1956). What is less clear is determination of the pertinent contract and the pertinent transportation.
In the District Court, Judge Nickerson took the sensible approach of ruling that at least in this case where it was undisputed that two ticket booklets were issued sequentially at the same time and the same place for round-trip travel to be interrupted by no more than a five-day stopover, a single contract had been made. The already fine distinctions that have developed in construing the Warsaw Convention would become absurd if the existence of a single contract turned on whether the three coupons issued for travel in this case were enclosed in one or two booklets, or whether a second booklet was used because the ticketing agent did not have on hand a ticket booklet with more than two coupons, or whether the two booklets were stapled together. What should matter when determining whether two or more ticket booklets constitute a single contract for purposes of the Treaty are the time and place of issuance of the booklets and the contemplated degree of continuity of the journey being ticketed. We need not attempt to formulate a general test to fit all of the combinations of relevant facts that might arise. It suffices to agree with Judge Nickerson that a single contract existed on the undisputed facts of this case. Appellant makes no claim that Conrado intended to purchase only a ticket from Madrid to New York and was issued a return ticket by mistake.
Determining the matter on the basis of when and where the booklets were issued and the nature of the journey contemplated accords with the scheme of the Treaty. Article 1(2) defines "international transportation" with reference to the place of departure and place of destination of any "transportation," with reference to the place of departure and place of destination of any "transportation," and Article 1(3) elaborates on that term as follows:
Transportation to be performed by several successive air carriers shall be deemed, for the purposes of this convention, to be one undivided transportation, if it has been regarded by the parties as a single operation, whether it has been agreed upon under the form of a single contract or of a series of contracts ....
Plainly, when different carriers are involved, the pertinent unit of travel for determining the "destination" is the "single operation" of "undivided transportation" as "regarded by the parties," whether that transportation is ticketed in one or a series of contracts. See Pimentel v. Bland, 748 F.2d 94, 96-97 (2d Cir. 1984).*fn4 When the transportation is to be performed by a single carrier, it would make little sense to use a different approach and let the number of contracts determine the "destination." In this case the undisputed facts show a "single operation" of "undivided transportation" as "regarded by the parties." The objective facts of the ticketing, which justified Judge Nickerson in concluding that only one contract existed, also support the conclusion that there was one "transportation" within the meaning of the Treaty. The destination of that transportation was Madrid.
Appellant contends that an air traveler should not be deprived of the option of purchasing "two one-way tickets for the purpose of assuring Article 28 jurisdiction in a desired national venue." Brief for Appellant at 15. She relies on language in Lisi v. Alitalia-Linee Aeree Italiane, S.P.A., 370 F.2d 508 (2d Cir. 1966), aff'd by an equally divided court, 390 U.S. 455, 88 S. Ct. 1193, 20 L. Ed. 2d 27 (1968), pointing out that a passenger must be given notice of the Treaty's limitations of liability so that he may have "the opportunity to purchase additional flight insurance or to take such other steps for his self-protection as he sees fit." Id. at 513. Even if we were to assume that a passenger might wish to select the number of ticket booklets for his journey in order to try to make available a forum in the country where the travel covered by one booklet is scheduled to terminate, such a maneuver is not the "self-protection" contemplated by Lisi.*fn5 An expressed preference for two ticket booklets cannot change the unitary nature of either the resulting contract or the transportation being ticketed. On the facts of this case, whether or not two ticket booklets were requested (and there is not claim that they were), there was only one contract and one transportation.
The judgment of the District Court is affirmed.