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SASSOUNI v. OLYMPIC AIRWAYS

July 25, 1991

RAFAEL SASSOUNI, PLAINTIFF,
v.
OLYMPIC AIRWAYS, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

This suit is an action by plaintiff to recover damages in the amount of $2,000 allegedly resulting from an incident occurring in relation to airline transportation furnished by defendant. This action is before the court on defendant's motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).

BACKGROUND

The parties are substantially in agreement on the material facts surrounding this case. Plaintiff, Rafael Sassouni, who brings this action pro se, purchased an airline ticket from defendant Olympic Airways ("Olympic"). The ticket provided for travel from New York to Athens, Greece on April 8, 1987; from Athens, to Tel Aviv, Israel on April 12, 1987 (the eve of Passover); and from Tel Aviv to New York on April 24, 1987. As plaintiff completed his April 8 and April 24 flights without mishap, the only leg of the journey at issue here is the April 12 flight from Athens to Tel Aviv.

It is undisputed that after plaintiff arrived at the Athens airport on April 12, 1987 he was denied boarding "due to alleged overbooking of (his) flight." Defendant's Memorandum in Support of Motion to Dismiss, 3. Plaintiff took the next available Olympic flight to Tel Aviv which arrived the following day, April 13 (Passover) after sundown. As an Orthodox Jew, plaintiff was forbidden by Jewish law to travel on Passover. Plaintiff's Pre-Trial Statement of Facts ("Pre-Trial Statement"), ¶ 4. Due to this delay in travel, plaintiff alleges he suffered "great mental and emotional distress." Pre-Trial Statement, ¶ 1(d).

Plaintiff commenced the present action in the Civil Court of the City of New York, Small Claims Part on October 15, 1990. Defendant removed the case from Small Claims Part to this court on November 21, 1990 pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1441(d) which provides in part:

  "(d) Any civil action brought in a State court
  against a foreign state as defined in section
  1603(a) of this title may be removed by the
  foreign state to the district court of the United
  States for the district and division embracing the
  place where such action is pending."

Defendant now moves this Court to dismiss plaintiff's claim as time barred.

DISCUSSION

Applicability of the Warsaw Convention

Defendant asserts that plaintiff's claim arises out of a delay in transportation and as such is governed exclusively by the provisions and limitations of the Warsaw Convention*fn1. The Warsaw Convention is a treaty designed to establish world-wide uniformity with regard to liability rules governing aviation and to "limit air carriers' potential liability in the event of accidents." In re Air Disaster at Lockerbie, Scotland, supra, 928 F.2d at 1270. The Warsaw Convention applies "to all international transportation of persons, baggage or goods performed by aircraft for hire." Article 1(1).

International transportation for purposes of the Warsaw Convention includes:

  "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. . . ." Article 1(2).

Plaintiff's transportation was unquestionably "international" within the meaning of the Warsaw Convention, given that the place of origin and the place of destination are in the United States (New York), which is a High Contracting Party to the Warsaw Convention, and Athens, Greece and Tel Aviv, Israel comprised agreed stopping places within the territory of another power. See generally Rabinowitz v. Scandinavian Airlines, 741 F. Supp. 441, 443 (S.D.N.Y. 1990) (travel which commenced and terminated in New York ...


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