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DARBY v. COMPAGNIE NATIONALE AIR FRANCE

July 12, 1991

REGINA L. DARBY, AS ADMINISTRATRIX C.T.A. OF THE GOODS, CHATTELS AND CREDITS OF PETER SHELLEY ZEILER AND REGINA L. DARBY, INDIVIDUALLY, PLAINTIFF,
v.
COMPAGNIE NATIONALE AIR FRANCE, D/B/A AIR FRANCE, A CORPORATION OF FRANCE, SOCIETE DES HOTELS MERIDIEN, D/B/A MERIDIEN HOTELS, INC. AND SISAL-RIO HOTELS TURISMO, S.A. D/B/A MERIDIEN COPACABANA, DEFENDANTS.



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

  OPINION

Defendant Compagnie National Air France ("Air France") has moved pursuant to Rules 12(b)(6) and 56, Fed.R.Civ.P., for summary judgment dismissing the claims of Regina Darby ("Darby") in this wrongful death action. Defendant Sisal-Hotel Turismo, S.A. ("Sisal") has moved pursuant to Rule 12(b)(2), Fed.R.Civ.P., to dismiss the complaint for lack of in personam jurisdiction. For the reasons set forth below, both motions are granted.

The Parties

Darby is the spouse of decedent Peter Shelley Zeiler ("Zeiler") and the Administratrix of his estate.

Zeiler drowned off the coast of Mexico on December 31, 1986.

Air France is a French corporation whose stock is almost entirely owned by the Republic of France. Air France in turn owns 100% of the stock of Societe Des Hotels Meridien ("SHM"), also a French corporation. SHM is the owner of certain hotels outside of the United States and the corporate parent of Meridian Gestion S.A. ("SMG"). SMG, a French Corporation, is a wholly owned subsidiary of SHM.

SMG is the principal shareholder of Meridien Hotels, Inc. ("MHI"), a New York corporation with its principal offices in New York City.

Sisal is a Brazilian corporation with its sole place of business at Rua do Passeio 70, Rio de Janeiro, Brazil. Sisal is the owner of the Meridien Copacabana Hotel (the "Hotel"), located in Rio de Janeiro, Brazil.

Prior Proceedings

Darby filed this complaint on October 25, 1988. SHM subsequently filed a motion to dismiss for lack of in personam jurisdiction. In an opinion of April 13, 1990 (the "Opinion"), 735 F. Supp. 555, the court denied SHM's motion.

On May 25, 1990, Darby filed a motion for default judgment and for the intervention of a magistrate to oversee discovery. An opinion of September 21, 1990 denied Darby's motion, but granted Darby leave to amend the complaint to (1) reflect the MHI is an entity distinct from SHM and (2) name Sisal, instead of the non-jural entity "Meridien Copacabana" as a defendant if Sisal was "fairly apprised" of the suit, 132 F.R.D. 354.

In an amended complaint of October 10, 1990, Darby named Sisal as a defendant. In the original complaint, Sisal was not named as a defendant. Instead the complaint named "Meridien Copacabana," a non-jural entity.

On January 7, and January 16, 1991, respectively, Sisal and Air France filed the instant motions. Oral argument was heard on April 4, 1991. The parties made additional submissions after oral argument.

The Facts

Background

This is a diversity action seeking damages for conscious pain and suffering and wrongful death arising out of the drowning of Zeiler in the surf at Rio de Janeiro, Brazil on or about December 31, 1986. Assuming the allegations as set forth in Darby's complaint for the purposes of this motion, Zeiler was a registered guest at the Hotel.

The complaint alleges that the Hotel is bordered by treacherous ocean waters and that the coastline is particularly dangerous after extended periods of rain. Darby maintains that the waters were so dangerous and the undertow so strong that the lifeguard, rather than enter the water, would summon helicopters whose pilots used a net to retrieve swimmers who were drowning. According to Darby, the conspicuous absence of warning signs, safety devices, and/or undertwo monitoring devices resulted in the needless deaths of several individuals, prior to and including Zeiler.

In November of 1986, Zeiler and Darby, after seeing ads and brochures for the Hotel, made a reservation through a New York travel agent.

The Management Contract Between Sisal and SHM

Sisal is the owner of the Hotel. On January 30, 1976, Sisal entered into a contract with SHM (the "Agreement"), whereby SHM, through its Brazilian subsidiary, Meridien do Brasil Turismo, Ltda. ("MdB") agreed to manage and operate the Hotel. In December, 1986, SHM assigned its contract with Sisal to SMG. Meridien S.A. ("MSA") has subsequently assumed the contractual obligations of SMG. Air France, the corporate parent of SHM, is not involved in the daily operations of the Hotel.

Pursuant to Article XV of the Agreement, the Hotel was to be operated under the name "Meridien Copacabana" and the parties acknowledged that the name "Meridien" was the exclusive property of SHM.

Under the Agreement, Sisal was granted the right to participate in the computerized international reservations system available to hotels managed by SHM and its affiliates. Pursuant to Article IX, Section 2, SHM became obligated to provide reservation services for the benefit of the owner of the Hotel.

Section (2)(i) of Article IX of the Agreement states that:

  SHM will supply or take the necessary measures so that the
  affiliated companies supply, at the time of the hotel operation
  and for the benefit of its customers, this enumeration not
  being limitative, the following services and facilities:
    (i) reservations — The recourse by the hotel to the central
    reservation service SHM. The cost will be born [sic] by the
    hotel operation prorated on its usage.

The reservations system is known as "Meridien Reservations International." Reservations for rooms at hotels at international locations (other than the United States, Canada and the Bahamas) including the Hotel, were taken through a toll-free 800 number answered in New York City by employees of MHI. The part of the reservations system that is located in New York is operated by MHI for the direct benefit of owners of Meridien-managed hotels, including Sisal. By calling the toll-free number, the caller is ...


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