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October 17, 1990


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 Flying Tiger 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 ...

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