The opinion of the court was delivered by: STANTON
Plaintiffs Ziming Shen and Xiaoping Fan sued defendants Japan Airlines ("JAL") and Japan Immigration Bureau ("JIB") for damages allegedly sustained when they were refused entry into Japan at Tokyo's Narita Airport, and deported to Shanghai, China.
Defendant JAL moves, pursuant to Fed. R. Civ. P. 12(b)(1), to dismiss the complaint against it for lack of subject matter jurisdiction. Alternatively, JAL moves for summary judgment pursuant to Fed. R. Civ. P. 56.
Defendant JIB moves to dismiss the complaint for insufficient service, and for lack of personal and subject matter jurisdiction.
1. Applicability of the Warsaw Convention1
The Court of Appeals has stated:
Pflug v. Egyptair Corp., 961 F.2d 26, 28-29 (2d Cir. 1992) (citations omitted).
Article 1(1) of the Convention states: "This convention shall apply to all international transportation of persons, baggage, or goods performed by aircraft for hire." Article 1(2) of the Convention 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 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.
In the transportation of passengers, the relevant transportation contract is generally the passenger ticket. See Rabinowitz v. Scandinavian Airlines, 741 F. Supp. 441, 443 (S.D.N.Y. 1990). Plaintiffs' tickets, purchased from JAL, provided for round-trip travel from Shanghai to Tokyo originating in Shanghai. Both China and Japan are High Contracting Parties to the Convention. Office of the Legal Advisor, U.S. Dep't of State, Pub. No. 9433, Treaties in Force 297 (1993). Thus, plaintiffs' travel was "international transportation" as that term is defined in the Convention.
The complaint states that
defendants false-arrested and malicious-prosecuted plaintiffs by keeping them in a jail for over fifteen hours without any food and illegally searched them and seized their passports and luggage and then forced them back to Shanghai, China. As a result, plaintiffs were delayed returning to the United States and suffered great pain of body and mind, and incurred more expenses for traveling and medical attention, and loss of time from work.
The Convention, in Article 17, states:
The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in ...