the passenger's "ultimate destination" is that by so agreeing,
the parties make a concession as to subject matter jurisdiction
in a particular place should an accident arise. Yet a passenger
with no intention of going to the country listed on the final
portion of the ticket is not "destined" to go to that country.
Generally the parties may not by consent confer subject
matter jurisdiction on a court. American Fire & Casualty Co. v.
Finn, 341 U.S. 6, 17-18, 71 S.Ct. 534, 542, 95 L.Ed. 702
(1951). Had the parties to the Convention sought to make an
exception to this rule they could have so stated.
It is true that the Convention in Article 1(2) defines
"international transportation" as any transportation "in which,
according to the contract made by the parties, the place of
departure and the place of destination" are situated in two
different signatory countries. But that Article specifies only
when the Convention applies, and does not speak to
The four places listed in Article 28(1) have meaning
independent of the terms of the contract. A traveller and an
airline could not, for example, mutually agree that for the
purposes of a particular trip, certain of the places listed in
Article 28(1) would not apply. See Article 32 (contract
provisions which infringe Convention rules of jurisdiction null
and void). In Food Poisoning, the court held that the country
of ultimate destination had jurisdiction even though the
defendant airline had agreed to provide service only for an
intermediate portion of the journey, and "was not contractually
obligated to deliver [him] to his ultimate destination." 770
F.2d at 6.
The Convention appears to confer jurisdiction on those
countries with a particular interest in the litigation or with
a particular competency, because of the location of the parties
or the evidence, to decide the matter. Thus an action may be
brought by the plaintiff in the country where the carrier is
domiciled, where it has its principal place of business, and
where the contract was made. Countries have an interest in
regulating businesses located within their borders.
The country of the ultimate destination of the passenger is
presumably included because that country, where the passenger
is likely to have an enduring if not a permanent relationship,
has a particular interest in the action. It seems unlikely that
the purpose of the Convention was to impose on plaintiffs the
hardship of litigating in unfamiliar countries. Airlines have
the means at their disposal to ease their own burden of travel.
This court therefore holds that the ultimate destination of
the passenger is the place where the passenger intended to end
up and would have ended up but for the accident. The intention
of the passenger alone, and not the mutual intention of the
parties as expressed in the contract or otherwise, determines
the passenger's "ultimate destination."
It may be argued that such a holding invites litigation and
possible fraud. Of course, in an overwhelming majority of
cases, the passenger will intend to travel to the ultimate
destination listed on the ticket. In fact, there should be a
presumption that the ticket indicates that destination. The
passenger, or for that matter the airline, will have the burden
of showing that the passenger never intended to use his full
Such an inquiry into the passenger's intention will not
materially increase the volume of litigation over that required
to resolve claims of mistake, fraud, and coercion where the
issue is framed in contract terms.
Plaintiffs say that their decedents thought that the Polish
law requiring the purchase of roundtrip tickets applied to them
in spite of their permanent residency status, and that they
would have been afraid to reveal to Polish authorities that
they intended to remain in the United States.
Plaintiff Kiela states that her decedent, her mother, lived
and worked in the United States and travelled to Poland on a
one-way cruise and was returning to the United States to live
and resume work. She says
that her mother had done the same thing five years earlier and
had sent the unused portion of the ticket back to Poland for
Plaintiff Pogorzelska states that her decedent, her husband,
lived and worked in the United States for 20 years before going
to Poland to visit his dying brother. During his absence, the
decedent maintained bank accounts and filed tax returns in the
United States. She says that he was returning to the United
States to live permanently and planned to redeem the unused
portion of his ticket.
The court is persuaded on the evidence before it that the
decedents intended the United States to be their ultimate
destination. The court denies LOT's motion. LOT may renew the
motion after taking discovery, should it choose to do so,
concerning the decedents' intentions.
The court is of the opinion that this order involves a
controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal
would materially advance the ultimate termination of the
litigation. 28 U.S.C. § 1292(b).
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