The opinion of the court was delivered by: Nickerson, District Judge:
This litigation arises out of the May 9, 1987 crash of a LOT
Polish Airlines (LOT) aircraft. Defendant LOT renews its motion
to dismiss the Pogorzelska and Kiela complaints, brought by the
representatives of two victims killed in the crash. The court
denied the previous motion in a Memorandum and Order dated
March 6, 1989, In re Air Crash Disaster Near Warsaw, Poland,
707 F. Supp. 650 (E.D.N.Y. 1989), familiarity with which is
Defendant asserts that this court lacks subject matter
jurisdiction under Article 28(1) of the Warsaw Convention
("Convention"). That Article establishes that the four places
where suit may be brought are the domicile of the carrier, its
principal place of business, its place of business through
which the contract has been made, and the place of destination.
In renewing the motion, defendant LOT submits evidence
showing that the Polish law requiring the purchase of roundtrip
tickets to the United States did not apply to the decedents
because both were permanent residents of the United States. LOT
contends that the parties to the contract freely consented to
the return leg of the journey, and that therefore the ultimate
destination for purposes of the Convention was Warsaw.
In Gayda v. LOT Polish Airlines, 702 F.2d 424 (2d Cir. 1983),
the court held that "[b]ecause Article 28 speaks to subject
matter jurisdiction, it operates as an absolute bar to federal
jurisdiction in cases falling outside its terms." Id.
The Court of Appeals for the Second Circuit has interpreted
the "place of destination" clause of Article 28(1) to mean a
passenger's ultimate destination and not the destination of
each leg of his journey. Id. In later cases, the court declined
to create exceptions to this rule. Petrire v. Spantax, S.A.,
756 F.2d 263 (2d Cir.) (purchase of separate one-way tickets at
same time is equivalent to roundtrip ticket for purposes of
determining destination), cert. denied, 474 U.S. 846, 106 S.Ct.
136, 88 L.Ed.2d 112 (1985); In re Alleged Food Poisoning
Incident, March 4, 1984, 770 F.2d 3 (2d Cir. 1985) (flight
involving several air carriers is equivalent to flight on
single carrier for purposes of determining destination).
In none of these cases did the Second Circuit have to
consider whether a passenger's "ultimate destination" could be
other than that listed on his ticket. In each instance the
parties conceded that the traveller intended to use the return
But these opinions contain dicta suggesting that a
passenger's ultimate destination is to be determined by looking
at the contract between the passenger and the airline.
Gayda at 425 ("it is the 'ultimate' destination listed in the
contract that controls"); Petrire at 265 ("There is no doubt
that a 'destination' is to be determined from the contract for
transportation"); cf. Food Poisoning at 5 ("the 'destination'
of a journey for Convention purposes is determined by reference
to the intent of the parties").
Looking at the destination listed on the contract is a
sensible rule of evidence to determine the passenger's intended
destination. But some decisions have adopted the dicta of the
Second Circuit and held that the destination listed on the
contract and not the actual intent of the passenger governs,
absent a showing that the parties mutually agreed to a
For example, in In re Korean Air Lines Disaster of Sept. 1,
1983, 664 F. Supp. 1478 (D.D.C. 1986), the intentions of the
parties as to destination were different. The plaintiff
contended that although the decedent had a roundtrip ticket
from Montreal to Hong Kong with intermediate stops in New York,
Seoul, and Taipei, he intended to use only that portion of the
ticket originating and ending in New York. Id. at 1479. The
court concluded that his ultimate destination was Montreal,
stating that "[n]o one at KAL was informed of [decedent]
Dorman's plans to travel to and from New York" and that without
"mutuality, the destination set forth on the ticket must
control." Id. at 1480.
In In re Air Crash Disaster at Malaga, Spain on September 13,
1982, 577 F. Supp. 1013 (E.D.N.Y. 1984), this court held that
the ultimate destination listed on the ticket was not
conclusive where the airline issued the roundtrip ticket by
accident. Id. at 1015. The court stated that it did "not
consider that the Gayda decision precludes either the passenger
or the ...