the girls. Id. at P 13. Plaintiffs claim that during the custody proceedings, Eyjolfsdottir was under the restraining orders of two Florida courts not to leave Northern Florida with her daughters and that as a precautionary measure, Eyjolfsdottir's and the girls' passports had been removed from Eyjolfsdottir's possession. Id. at P 12. Plaintiffs further claim that Eyjolfsdottir was at the time of the custody proceedings, attempting to acquire new Icelandic passports for herself and the girls through the Icelandic Consul in Florida by claiming that her passport had been lost. Id. at P 13.
Plaintiffs allege that Eyjolfsdottir was informed by her counsel in late April, 1992 that the Florida court in Okaloosa County was going to grant Fred Pittman sole custody of Elizabeth and that Eyjolfsdottir subsequently fled Florida with Elizabeth and Anna. Plaintiffs further claim that after fleeing Florida, Eyjolfsdottir and her two daughters arrived at JFK International Airport ("JFK International") on May 2, 1992 to catch Icelandair's evening nonstop flight to Keflavik Airport. Id. at PP 15-17.
With respect to defendant Icelandair, plaintiffs allege that on the evening of May 2, 1992, Icelandair's employees and/ or agents, hid Elizabeth and Anna at JFK International and then smuggled them onto an Icelandair aircraft bound for Keflavik Airport, based on a prior arrangement with Eyjolfsdottir and Jonsson. Plaintiffs maintain that the girls were boarded on the aircraft from an entrance different from that of the other passengers and without passports. In addition, plaintiffs allege that by surreptitiously boarding Elizabeth onto its aircraft, defendant Icelandair was fully aware that Eyjolfsdottir was not entitled to leave the United States with Elizabeth. Id. at PP 30, 31, 33.
Based on Icelandair's alleged smuggling of the girls onto an Icelandair aircraft, plaintiffs claim defendant Icelandair intentionally interfered with the custodial relationship between plaintiffs Fred Pittman and Elizabeth, intentionally inflicted emotional distress on Fred Pittman and falsely imprisoned Elizabeth.
On May 4, 1992 the Circuit Court for Okaloosa County, Florida issued an order awarding plaintiff Fred Pittman sole custody of Elizabeth and subsequently issued an order for Eyjolfsdottir's arrest on February 15, 1993. Ex. 2 of Affidavit of Robert K. Erlanger sworn on October 29, 1993 ("Erlanger Aff.").
In early 1993, a three member team from Corporate Training Unlimited (CTU), an organization devoted primarily to recovering children involved in international custody cases, went to Reykjavik, Iceland in an attempt to retrieve Elizabeth and Anna from defendant Eyjolfsdottir. CTU's efforts, however, were foiled by the Icelandic police. Affidavit of Desmond T. Barry, Jr., Esq. sworn to September 29, 1993 ("Barry Aff.") at P 7.
On February 3, 1993, the Supreme Court of Iceland granted Eyjolfsdottir sole custody of Elizabeth, and on May 2, 1993, the Icelandic Committee of Child Protection issued an order stating that there were no grounds to interfere in the relationship of Eyjolfsdottir and her daughters. Ex. 4 of Erlanger Aff. at 38-41. Barry Aff. at P 8; Ex. G of Barry Aff. On April 29, 1993, plaintiffs filed their complaint in this Court.
Defendant Icelandair moves pursuant to 12(b)(1) of the Fed. R. Civ. P. to dismiss this action for lack of subject matter jurisdiction based on the Warsaw Convention or pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss this action on the grounds that section 1305(a)(1) of the FAA preempts plaintiffs' state law claims of intentional interference with custodial rights, intentional infliction of emotional distress, and false imprisonment. Alternatively, Icelandair moves to dismiss this action based on forum non conveniens. For the reasons set forth below, we deny defendant's motions.
A. The Warsaw Convention
Icelandair argues that because plaintiffs' claims arise from "international transportation", as defined by Article 1(2) of the Warsaw Convention ("Convention"),
the conditions and limits of the Convention automatically apply, including the forum limitations of Article 28. Article 28 provides that actions must be brought, at the option of the plaintiff, (1) "in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business", (2) "where he has a place of business through which the contract has been made", or (3) "before the court at the place of destination."
Icelandair further argues that if the Court determines that a claim falling under Article 1(2) of the Convention has not been brought in accordance with the forum limitations of Article 28, the court should dismiss the complaint without further inquiry into the Convention's liability provisions.
Plaintiffs concede that their claims arise out of "international transportation", as defined by Article 1(2) of the Convention. Plaintiffs, however, maintain that the forum limitations of Article 28 are applicable only to claims falling within the liability provisions of the Convention. Plaintiffs further contend that Article 17 is the Convention's only potentially applicable liability provision. Article 17 states:
The carrier shall be liable for damages 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 damages so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
Plaintiffs argue that their claims fall under neither Article 17 nor any of the other substantive liability provisions of the Convention and consequently that the Convention is inapplicable to their claims. For the reasons set forth below, we find for plaintiffs on this issue.
The Warsaw Convention was designed to effectuate two central public policy goals: (1) to establish uniformity in the aviation industry with respect to claims arising out of international transportation, as well as uniformity as to documentation, and (2) to limit air carriers' potential liability in the event of accidents. In re Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1270 (2d Cir. 1991) (citations omitted). State law claims which fall within the scope of the Convention are preempted by the Convention. Id. at 1273. However, "the text of the Warsaw Convention does not state that it is exclusive as to all causes of action arising out of international air flight; rather, it merely states that it is exclusive as to causes of action governed by its liability provisions." Walker v. Eastern Air Lines, Inc., 785 F. Supp. 1168, 1170 (S.D.N.Y. 1992).
As a threshold matter, the Court must determine whether the Convention applies to plaintiffs' claims. Pflug v. Egyptair Corp., 961 F.2d 26, 28-29 (2d Cir. 1992) (citations omitted). The Court of Appeals has stated:
This Court has held that when an action is one that falls within the province of the Convention, and the Convention does not authorize suit in the jurisdiction in which the action is brought, our inquiry ceases . . . . However, the Convention does not apply to all claims of injury suffered in conjunction with international air travel; thus, as an initial matter this Court must determine whether the Convention applies to all of plaintiffs' claims.