The opinion of the court was delivered by: Conboy, District Judge:
On February 18, 1989, a cargo plane of the Flying Tiger Line
crashed in Kuala Lumpur, Malaysia. The pilot, co-pilot, and
flight engineer were killed, as was Leonard Sulewski, an
aircraft mechanic in the employ of Flying Tiger. The central
question in this case is whether Mr. Sulewski was travelling
at the time of his death as a passenger or an on-duty employee
of the airline.
The plaintiff has brought this action against the defendant
Federal Express Corporation, successor in interest to the
Flying Tiger Line ("Flying Tiger" or "Airline") for
compensatory damages for wrongful death based upon the Warsaw
Convention, 49 U.S.C.App. § 1502 note, ("Convention"), and upon
common law negligence. The defendant has moved for summary
judgment pursuant to Rule 56(b), Fed.R.Civ.P., asserting in
substance that the decedent was not travelling at the time of
his death as a passenger, as that term is defined by the Warsaw
Convention, but was travelling on a scheduled flight pursuant
to a contract of employment, in the course and scope of his
employment. Worker's Compensation is, according to defendant's
analysis, the exclusive remedy available to the plaintiff.
The plaintiff has made a cross-motion for partial summary
judgment on the liability issue, asserting that the decedent
was travelling as a passenger at the time of his death, that
the Warsaw Convention therefore applies in this case, and that
the Convention's liability limitations do not apply because,
although Mr. Sulewski had not been issued a passenger ticket,
this was the fault of the Airline.
Certain facts are not in dispute. Leonard Sulewski was a
licensed and fully qualified mechanic authorized to perform
maintenance on and repairs to Flying Tiger aircraft. As a
"maintenance representative," he was one of the seven
mechanics not assigned to a permanent ground station at
various airports on Flying Tiger's worldwide routes, but was
assigned to specific flights to perform necessary safety and
maintenance work as the plane was on the ground at various
locations where no station or ground mechanics were employed
by Flying Tiger.
These maintenance representatives used their homes as a
base, from which they were assigned to duty on specific Flying
Tiger flights. Their salary was based upon a collective
bargaining agreement the Airline had with their union. Mr.
Sulewski received a monthly salary plus a $100.00 pay
differential for odd hours worked. He also received a per diem
amount for each day that he was away from home. He received
his salary irrespective of what he did for the company during
the month as long as he carried out his assigned duties with
respect to the flights to which he was assigned.
In February, 1989 Mr. Sulewski was assigned to Flying Tiger
Flight 66, covering Singapore, Kuala Lumpur, and Hong Kong,
the latter designation having been substituted for Taipei. He
left Los Angeles on February 14, 1989 and flew on various
Flying Tiger aircraft to Honolulu, the Fiji Islands, Sidney,
Melbourne, and Singapore. He left Singapore on February 18,
1989 on Flight 66, destined for Kuala Lumpur and finally, Hong
Kong. Upon arrival in Hong Kong, Mr. Sulewski would be
debriefed and "destaged," and his assignment would have been
completed. He would then have been free to return to his home
on any flight of his choosing, and even if he had flown on a
aircraft, he would have been off duty and in a "deadheading"
status. Flying Tiger had no maintenance personnel in Kuala
Lumpur on February 18, 1989.
The flight left Singapore on that date at 6:04 a.m., local
time, with an estimated flight time of 33 minutes. At
precisely 6:34.10, as it descended and approached the runway
at Kuala Lumpur Airport it struck a ridge line, became
engulfed in flames, and was destroyed. The three members of
the flying crew and Mr. Sulewski all tragically perished.
A customs document designated "General Declaration,"
prepared by Flying Tiger at its Singapore base for Flight 66,
places the name of Mr. Sulewski in the "crew" and not the
"passenger" column. Affidavit of Paul Nowaske, dated May 14,
1990 ("Nowaske Aff."), unmarked attachment. Mr. Sulewski had
not been issued a passenger ticket for Flight 66.
An interoffice memorandum dated July 28, 1988 and addressed
to all of Flying Tiger's maintenance representatives from
their immediate superior refers to their request "to get a
crew rest" during a particularly difficult flight. Affidavit of
T.E. Moore, dated September, 1990 ("Moore Aff."), unmarked
attachment (emphasis added).
The parties further agree, see Plaintiff's Response to
Defendant's Statement Pursuant to Local Rule 3(g), ¶ 6, that
Mr. Sulewski's duties during the course of the assigned
flight's stopovers at the "off-line" stations included:
1. supervising the aircraft's ground handling and
2. responsibility for clearance of all log book
3. pre-flight and post-flight inspections
when he was joining or leaving the
4. communication to Flying Tiger maintenance
control of any change in the airworthiness of
the aircraft upon arrival at any location.
Nowaske Affidavit at 3 (emphasis added).
It is therefore apparent that Mr. Sulewski had on-duty
employment obligations to Flight 66 from prior to its take-off
in Singapore to after its landing in Hong Kong. Indeed,
whether in the air or on the ground, the mechanical integrity
of Flight 66 was continuously and exclusively ...