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IN RE AIR CRASH DISASTER NEAR WARSAW

March 13, 1991

IN RE AIR CRASH DISASTER NEAR WARSAW, POLAND, ON MAY 9, 1987.


The opinion of the court was delivered by: Nickerson, District Judge:

MEMORANDUM AND ORDER

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 assumed.

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 its previous decision, in considering what the "destination" of the passengers was, this court assumed for purposes of the motion that they were compelled by Polish law to buy roundtrip tickets from Warsaw to New York, although they wished to travel only to New York. Id. at 652. The court reasoned that in light of this coercion the decedents could not be said to have consented to the return trip to Warsaw, and that therefore the decedents'"ultimate destination" for purposes of jurisdiction under the Convention was New York. Id.

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.

I.

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 ticket.

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 different destination.

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 ...


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