United States District Court, Southern District of New York
October 17, 1990
DOLORES SULEWSKI, INDIVIDUALLY, AND AS EXECUTRIX OF THE ESTATE OF LEONARD SULEWSKI, DECEASED, PLAINTIFF,
FEDERAL EXPRESS CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Conboy, District Judge:
OPINION and ORDER
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 his
responsibility during the Flight's scheduled progress from
Singapore to Hong Kong.
Flying Tiger asserts that while a "maintenance
representative's primary function was to provide ground
maintenance and repair to the aircraft during the course of
the flight . . . if there was an instrument malfunction or
some other problem during the in-air portion of the flight to
which he was assigned, the role of mechanic would be that of
a consultant with the flying crew members." Id. at 4. One of
the airline's maintenance representatives testified that during
the course of flights with maintenance reps aboard ". . . there
were times when each and every one of us were called upon to
give advice. You would be a damn fool if you didn't."
Deposition of John J. Smith, March 19, 1990 at 30-31.
The plaintiff disputes this with the altogether too facile
argument that any advice given by the mechanics in flight
would be voluntarily offered, and not required by their job
description or collective bargaining agreement. According to
this view, they had exclusively ground duties. See Affidavit of
Louis R. Schroeder, President of the Mechanics Union, dated May
20, 1990. The difficulty with this argument is that it is
contradicted by the plain and irrefutable reality that a
refusal to give professional advice when asked during an air
emergency would constitute an abandonment of the safety of the
crew and the aircraft in media res of the mechanic's on-going
obligation to that safety from Singapore to Hong Kong. To
insist that an employee whose sole reason for being in
Southeast Asia is to keep the aircraft flying has a contract
right while on board to withhold his service and qualifications
while the ship descends in peril is, to put the matter plainly,
incomprehensible and irresponsible.
Flying Tiger also asserts that
"it was the policy of Flying Tiger that the
maintenance representatives had to accompany the
flight to which they were assigned unless special
permission from the company was sought and
received. The purpose of the policy was to insure
that the maintenance representative would be at
the offline station ready to perform his "on
ground" duties while the aircraft was being
loaded and unloaded so that the flight would
remain on schedule. Having the maintenance
representative on board the aircraft also
protected against situations where the aircraft
had to be diverted to an alternate off-line
airport because of weather conditions or
political unrest." Moore Aff. at 3-4.
The plaintiff disagrees, claiming that a maintenance
representative was not required by company policy to be
actually on board an airplane which he had been assigned to
service when it landed, and that he had the option of
arranging separate transportation to the service stop and
meeting the aircraft he was obligated to service at its
arrival. "Mechanics were not necessarily required to fly with
the airplane that we were assigned to service . . . it would
be incorrect to say that we were `assigned' to particular
flights in the sense that we had no discretion to get to our
work site by some other means." Affidavit of Ray Raduziner,
Maintenance Representative for Flying Tiger, dated August 29,
1990 at 2-3. A careful reading of Raduziner's evidence makes
it clear that he is not disputing Moore's statement of what
broad Flying Tiger policy was with respect to mechanics riding
the flights they were obligated to service. He asserts only
that from time to time exceptions to the policy might be
allowed, although he is careful not to claim that such
exceptions ever applied to the Far East routes.
The plaintiff also relies upon a portion of the deposition
of the supervisor of the Maintenance Reps in which he
testified that Mr. Sulewski was performing no inflight crew
duties, and had no responsibilities while he was on board the
airplane. Deposition of Paul Nowaske, February 13, 1990 at
44-45 ("Nowaske Deposition"). It is clear, however, that
Nowaske was referring to the flying or operational crew, with
its formal command and rank structure. The plaintiff also
points out that a report of the crash circulated by the
Airline did not mention Mr. Sulewski when making reference to
the crew, Affidavit of Melvin I. Friedman, dated May 14, 1990,
Exhibit 9, and that the 747 Operations Manual filed by the
Airline with the F.A.A., which sets forth the duties of the
crew, says nothing of mechanics. Id. Exhibit 10. These
references, however, do not really implicate the question of
whether Mr. Sulewski was on duty while airborne between
Singapore and Kuala Lumpur, or was a passenger pursuing private
travel between the two points.
This then is the factual posture of the case on the motion.
As is apparent, both parties have devoted much effort to
explicating Mr. Sulewski's status as a member or a non-member
of the crew. It is fair to say, however, that neither side is
asserting that Mr. Sulewski was a member of the flying, or
operational crew. The defendant's position, to be precise, is
that he was performing no inflight crew duties except to
render consultation in the event of an inflight inquiry by the
operating crew, but that he was nonetheless an on-duty
employee of the airline specifically assigned to Flight 66
exclusively for the purpose of carrying out his mechanic
duties, who died in the course and scope of his employment.
The other principal area of factual inquiry by the parties
is the question of whether because Mr. Sulewski had been
required by the terms of his assignment to service Flight 66
in both Singapore and Kuala Lumpur, he was required actually
to board the flight in Singapore for the flight to Kuala
Lumpur. Whether or not Airline permission could in theory have
been obtained to go to destinations, in general, by alternate
means of transportation is quite beside the point and
immaterial in light of the unchallenged deposition testimony
of Maintenance Representative John Smith:
Q. On the occasion that you were on Flight 66 did
you always leave Singapore aboard the 747 and
take that particular airplane to Kuala Lumpur?
Q. Were there occasions somehow or other you got
to Kuala Lumpur on your own? Without taking the
Flying Tiger airplane?
A. No, it's impossible. By the time of night we
got to Singapore it was ten o'clock local.
Approximately. The curfew in Kuala Lumpur was
early morning, five or six. The layover was only
brief at that time. From that time until five
o'clock; five o'clock would be alert.
You only have five or six hours in the hotel
and you would have to leave. There was no way you
could get to Kuala Lumpur. There was no way in
there except by bus or train.
Q. There was no commercial flight?
A. Not at the time of the morning. Because of the
We believe, therefore, that the terms of the assignment to
Flight 66 required the mechanic to board and fly with the
aircraft from Singapore to Kuala Lumpur, and that this fact is
beyond dispute on this record.
The "Warsaw Convention" (formally titled "Convention for the
Unification of Certain Rules Relating to International
Transportation by Air") concluded at Warsaw, Poland, October
12, 1929, adhered to by the United States, June 27, 1934, 49
Stat. 3000, 3014 (1934) reprinted in note following 49
U.S.C.App. § 1502 (1970), is an International Treaty to which
the United States is a party. Air France v. Sachs,
470 U.S. 392, 396, 105 S.Ct. 1338, 1341, 84 L.Ed.2d 289 (1985). Most of
the major countries of the world adhere to the Warsaw
Convention, including Hong Kong, the intended destination of
Flight 66, Singapore, the point of origin for Flight 66, and
Malaysia, the intermediate stop for Flight 66. See, Lee S.
Kreindler, 1 Aviation Accident Law, Section 11.01 (3 at 11-7
(1988). (listing countries which are parties to the
Convention). The Convention was intended to cover certain
relationships between air carriers and those requiring
international transportation. Article 1 sets forth these
(1) This convention shall apply to all
international transportation of persons, baggage,
or goods performed by aircraft for hire. It shall
apply equally to gratuitous transportation by
aircraft performed by an air transportation
(2) For the purposes of this convention the
expression "international transportation" shall
mean any transportation in which, according to
the contract made by the parties, the place of
departure and the place of destination, whether or
not there be a break in the transportation or a
transshipment, are situated either within the
territories of two High Contracting Parties, or
within the territory of a single High Contracting
Party, if there is an agreed stopping place within
a territory subject to the sovereignty, suzerainty,
mandate or authority of another power, even though
that power is not a party to this convention . . .
The Warsaw Convention thus applies to all international
transportation of persons, baggage or goods performed by
aircraft for hire, or their gratuitous transportation. Article
1(2) of the Convention defines "international transportation"
as requiring a "contract" of carriage made by and between the
carrier and the party requiring the transportation. In the
absence of a contract of carriage made by the parties, the
Warsaw Convention has no applicability.
Article 17 of the Convention, which establishes and defines
liability, by its terms applies to passengers.
The carrier shall be liable for damage
sustained in the event of the death or wounding of
a passenger or any other bodily injury suffered by
a passenger, if the accident which caused the
damage so sustained took place on board the
aircraft or in the course of any of the operations
of embarking or disembarking. (emphasis added)
Accordingly, passengers under Article 17 are all "persons"
who receive transportation pursuant to a contract of carriage
as required in Article I. In Re Mexico City Aircrash of October
31, 1979, 708 F.2d 400
, 417, n.31 (9th Cir. 1983).
It is clear, then, that the question whether or not the
Convention applies in this case, turns upon whether Leonard
Sulewski "was aboard the flight primarily to perform . . .
[his] employment obligations, so that [he] was not a
`passenger'". In Re Mexico City Aircrash, 708 F.2d at 418.
In that case, the three decedent flight attendants had been
assigned by their employer to specific flights and not to
stations or locations. Two of the flight attendants, Haley and
Tovar, were specifically assigned to flight 2605, the flight
which crashed. The 9th Circuit held that:
Decedents Theresa Haley and Regina Tovar were
indisputably working as flight attendants on
board Flight 2605. Even though Haley and Tovar
were in some sense "transported" by the plane, we
do not think that they received "transportation"
as "passengers" within the meaning of the
Convention. The term "transportation" seems to us
to require as a minimum that the voyage be
undertaken for the principal purpose of moving
the individual from point A to point B. In the
cases of Haley and Tovar, the voyages were
undertaken not for this reason, but for the
exclusive purpose of performing employment
duties. We conclude that Haley and Tovar were
not, therefore, "passengers" aboard Flight 2605,
and that the summary judgments in favor of
Western on the claims of plaintiffs Haley and
Tovar were proper.
In Re Mexico Aircrash, 708 F.2d at 417 (footnote omitted).
The other flight attendant, Vikki Dzida, was not specially
assigned to flight 2605. Rather she was utilizing flight 2605
to get to her assigned flight. The Court reversed summary
judgment granted in favor of the employer as to Dzida, but
only as to Dzida.
Not surprisingly, the parties have focused upon the
circumstances surrounding the presence on the ill-fated flight
in the Mexico City case of flight attendant Dzida. Plaintiff
insists that Mr. Sulewski was in very much the same position
as Ms. Dzida, arguing he was not assigned to the in-air
portion of Flight 66 as such, but only to ground duties at
Kuala Lumpur, that his presence on the flight was only
incidental and not required as part of his written employment
contract or otherwise, and that he performed no crew or indeed
even employment functions on the in-air portion of the flight.
Flying Tiger argues that unlike Ms. Dzida, Mr. Sulewski was
indisputably assigned to Flight 66, that he was on board
pursuant to an employment contract and not a contract of
carriage, that his job assignment was the aircraft and not the
off-line ground locations, that the terms of assignment to
Flight 66 required him to board the aircraft and fly from
Singapore to Kuala Lumpur, and that his presence in the
aircraft was facilitating his employer's transportation of
cargo for its customers.
The Court in Mexico City case put the decisive question this
The ultimate inquiry is whether Dzida was on
Flight 2605 for the primary purpose of traveling
from Los Angeles to Mexico City, so that she was
a "passenger," or whether she was aboard the
flight primarily to perform (or to be on call to
perform) her employment obligations, so that she
was not a "passenger".
In Re Mexico Aircrash, 708 F.2d at 418 (emphasis added). On
this formulation, the case supports Flying Tiger's position
Plaintiff's reliance upon Liberty National Life Ins. Co. v.
Dobson, 377 F.2d 861 (5th Cir. 1967), is unavailing. This case,
which did not implicate the Warsaw Convention, turned on the
question of whether Dobson, an Army private who was a qualified
operator of infra-red detection equipment, was a "member of the
crew" as that term was used in a private insurance policy.
Here, of course, the issue is somewhat
different: whether, under the liability provisions of the
Warsaw Convention, Mr. Sulewski was riding the flight as an
on-duty employee of Flying Tiger. In any case, we observe that
Sulewski's duties were critical to the airworthiness of the
plane; indeed, the flight could not have proceeded, no less
been routinely operated, without the systematic and formal
responsibilities of the maintenance representative being
discharged, which responsibilities included flying with the
aircraft from Singapore to Kuala Lumpur.
Nor are Mertens v. Flying Tiger Lines, Inc., 341 F.2d 851 (2d
Cir. 1965) and Demanes v. United Airlines, 348 F. Supp. 13
(C.D.Cal. 1972) helpful to plaintiff. In the former case the
deceased was not an employee of the carrier or on the flight
pursuant to any duty obligation to the carrier. In the latter
case, the deceased airline employees had been delivered regular
passenger tickets and were "deadheading" between Los Angeles
and Denver. Unlike Leonard Sulewski, they had no employment
duties relating to the flight on which they met their deaths.
The parties have expended much energy and ink arguing
definitions of "crew," as that term has been used in maritime,
immigration, labor and insurance cases. We have not found
references to those cases helpful, as usage in law springs
from custom and context. As none of those cases dealt with the
meaning of the provisions of the Warsaw Convention implicated
here, or the unique operational and employment characteristics
of the airline industry, we decline to follow them.
Summary judgment may be granted only when the moving party
can establish, based on "the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits . . . that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court
must first look to the substantive law of the case to
determine which facts are material. Only disputes over
material facts will preclude the entry of summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 2510, 91 L.Ed.2d 202 (1986). The moving party bears the
initial burden of establishing that no genuine dispute as to
material facts exists. See Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The
burden then shifts to the opposing party to show that a genuine
issue of fact exists. See Matsushita Electric Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348,
1355-56, 89 L.Ed.2d 538 (1986). Ultimately, "[i]n considering
the motions, the court's responsibility is not to resolve
disputed issues of fact but to assess whether there are any
factual issues to be tried, while resolving ambiguities and
drawing reasonable inferences against the moving party." Knight
v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986) (citing
Anderson v. Liberty Lobby, Inc.).
Under this standard, we find that there are no disputed
material issues of fact to be tried in this case. We conclude
as a matter of law that under the Warsaw Convention, Leonard
Sulewski was not travelling as a passenger during the course
of Flight 66 from Singapore to Hong Kong.
Defendant's motion for summary judgment is granted. The
Clerk of the Court is directed to enter judgment accordingly.
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