The opinion of the court was delivered by: KRAM
SHIRLEY WOHL KRAM, U.S.D.J.
Plaintiff seeks relief for the wrongful death of her husband, William L. Stanford ("Stanford"), who was allegedly shot and killed by terrorists in Tehran, Iran, on December 6, 1984, after the airplane on which he was a passenger, Kuwait Airways Corporation ("KAC") flight No. 221, was allegedly hijacked by terrorists during its flight from Kuwait to Pakistan. The facts of this case are set out in full in Stanford and Hegna v. Kuwait Airways Corp., et. al., 85 Civ. 0477, 2448 (SWK), slip op. (S.D.N.Y. October 8, 1986), familiarity with which is assumed.
The above captioned action is before this Court upon the motion by defendant Northwest Airlines, Inc. ("Northwest") for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. In her complaint, plaintiff asserts that Northwest owed a duty of care to Stanford since Northwest allegedly had a contractual relationship with Stanford, and an agency relationship with the other airlines named as defendants in this case. Plaintiff also bases her allegations of liability on the Warsaw Convention.
For the reasons detailed below, the Court now grants Northwest's motion for summary judgment.
A motion for summary judgment should be granted if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law on those undisputed facts. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986); Fed. R. Civ. P. 56(c). The burden is on the moving party to show that no such issues of fact exist. Adickes v. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). In testing whether the movant has met this burden, the Court resolves all ambiguities and doubts against the movant. United States v. Diebold, Inc., 369 U.S. 654, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962). See also Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975).
Nonetheless, "properly employed, summary judgment is a useful device for unmasking frivolous claims and putting a swift end to meritless litigation". Quinn v. Syracuse Model Neighborhood Corp., 612 F.2d 438, 445 (2d Cir. 1980). Speculation, conclusory allegations and mere denials are not enough to raise genuine issues of fact. See Gatling v. Atlantic Richfield Co., 577 F.2d 185, 187-88 (2d Cir.), cert. denied, 439 U.S. 861, 58 L. Ed. 2d 169, 99 S. Ct. 181 (1978); Clayton v. City of New York, 596 F. Supp. 355, 360 (S.D.N.Y. 1984).
The memoranda of law and affidavits submitted by both plaintiff and Northwest do not dispute the following facts. Stanford purchased an "open" ticket from a travel agent in Karachi, Pakistan, for travel on unspecified airlines and flights from Karachi, Pakistan to various points throughout the Middle East. The ticket was issued on Northwest ticket stock pursuant to an International Air Transport Association ("IATA") interline agreement. See Stanford and Hegna, supra, slip op. at n. 1. The Northwest ticket stock issued to Stanford Was not used to provide Stanford's passage on the ill-fated KAC flight No. 221. Rather, upon arrival in Sanaa, Arab Republic of Yemen ("Yemen"), Stanford traded in the unused portion of his Northwest ticket (which provided for travel, on an unspecified airline or airlines, from Yemen to Abu Dhabi to Karachi), and additional money, for tickets on KAC flights Nos. 782 and 221, providing for transportion from Yemen to Kuwait, and from Kuwait to Karachi, Pakistan. The KAC tickets were issued to Stanford on Pan American World Airways, Inc. ("Pan Am") ticket stock by Marib Travel Agency, a registered Pan Am agent in Sanaa, Yemen.
Northwest argues in its motion for summary judgment that even if Northwest had undertaken a contractual duty of safe carriage because of Stanford's use of Northwest ticket stock to provide him with air transportation -- a position which Northwest heartily contests -- any such obligation was terminated when Stanford surrendered the unused portion of his Northwest ticket in Sanaa, Yemen on December 3, 1984.
Northwest's argument must prevail. There is no indication that any obligation continued to exist, or was expected to continue by either party, once Stanford surrendered the unused portion of his Northwest ticket in Sanaa, Yemen, in exchange for Pan Am tickets. Indeed, the Pan Am tickets purchased by Stanford provided for air transportation to destinations different from those specified on Stanford's Northwest ticket. Plaintiff offers only conclusory and speculative assertions that Pan Am assumed Northwest's duties and that Stanford did not intend a novation to occur.
"In order to constitute a novation, . . . a contract must discharge a previous contractual duty, create a new contractual duty, and add a party who neither owed nor was entitled to its performance." Restatement, Contracts § 424. It is clear to the Court that Stanford's voluntary surrender of his Northwest ticket and purchase of Pan Am tickets for travel to different destinations constituted a complete novation of any contractual duty owed by Northwest to Stanford. Accordingly, for the reasons discussed above, surrender by Stanford of his Northwest ticket and his purchase of Pan Am tickets for travel to different locations constitute a novation of Northwest's alleged contract with Stanford.
Plaintiff asserts that Pan Am and/or KAC were acting as Northwest's agents when they respectively issued a ticket for, and provided carriage on, KAC flight No. 221, and that Northwest is therefore liable for the alleged negligence of Pan Am and/or KAC which caused the plaintiff's loss.
However, as discussed above, When Stanford decided to trade in his Northwest ticket and purchase, instead, a Pan Am ticket for KAC flight No. 221, a new relationship was formed between Stanford and Pan Am, as issuer, and KAC, as carrying airline. As carrier, KAC was not acting on behalf of Northwest to fulfill Northwest's obligations, since those obligations had been terminated. See supra. Accordingly, KAC was not acting as Northwest's agent ...