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LAM v. AEROFLOT RUSSIAN INT'L AIRLINES

April 14, 1998

GRACE LAM, Individually, and as Executrix of the Estate of DANIEL Y. LAM, deceased, Plaintiff,
v.
AEROFLOT RUSSIAN INTERNATIONAL AIRLINES, Defendant.



The opinion of the court was delivered by: KNAPP

 WHITMAN KNAPP, SENIOR DISTRICT JUDGE

 This is an action by Grace Lam, individually, and as executrix of the estate of her deceased husband, Daniel Lam, against Aeroflot Russian International Airlines. She seeks damages in excess of $ 10 million arising out of the death of her husband resulting from the crash of Aeroflot Flight No. SU593 in Novokuznetsk, Kemerovskaya Province, Russian Federation en route from Moscow to Hong Kong on March 22, 1994. Subject matter jurisdiction - or lack of it - is governed by a treaty of the United States, the Convention for the Unification of Certain Rules Relating to International Transportation by Air, concluded at Warsaw, Poland, October 12, 1929 ("Warsaw Convention"), as amended by the Hague Protocol of 1955. It is plaintiff's position that courts of the United States have such jurisdiction because the Aeroflot flight on which her husband met his death was a segment of his round-trip business tour beginning and ending in Denver.

 The defendant, on the other hand, has moved for summary judgment, contending that since Aeroflot issued tickets only for a journey beginning and ending in Hong Kong, the courts of the United States have no jurisdiction. For reasons that follow, we deny defendant's motion.

 BACKGROUND

 In March 1994, Daniel Lam was a United States citizen who made his home in Denver, CO with his wife, the plaintiff in this action. In early 1994, he decided to take a business trip to several cities in China and Russia, ultimately returning to Denver. He intended and attempted to book his entire itinerary through his travel agent in Denver, Greenwood Travel. Lam asked Greenwood to book air travel from Denver to Hong Kong, Hong Kong to mainland China, China to Hong Kong, Hong Kong to Russia, Russia to Hong Kong, and finally Hong Kong to Denver. *fn1" Greenwood proceeded to book him on United Airlines from Denver to Hong Kong (and back), on Dragon Air from Hong Kong to mainland China (and back), and then attempted to book with Aeroflot the Hong Kong to Russia segment of the trip.

 Due to what appears to have been a computer or communications problem with Aeroflot's ticketing system, Greenwood, an authorized agent for the issuance of tickets for flights on Aeroflot which regularly issued such tickets, proved unable to secure tickets on Aeroflot for the Hong Kong/Russia segment of the journey. When Greenwood called Aeroflot's United States office to attempt to remedy the problem, it was told that Lam should instead book the ticket through an overseas agent. Following that suggestion, Lam sent an "urgent" fax to Li Wah Shing, a travel agent in Hong Kong, in effect asking him to act as his agent and purchase tickets for the segment from Hong Kong to Russia and back. Agent Li obtained the needed Aeroflot tickets from Global Union Express (Hong Kong) Ltd. ("G.U.E."), the sole sales agent for Aeroflot in Hong Kong. The following is a reproduction of the ticket issued by G.U.E. at agent Li's request:

 
When Mr. Lam checked in for his flight from Hong Kong to Moscow, he was required to present his passport and visa to Aeroflot's check-in agents, Cathay Pacific Airlines. Had they checked his passport and visa as they were supposed to do, they would have been on notice that he was from the United States and not Hong Kong. When Daniel [Lam] entered Hong Kong, the Immigration Department here would have stamped on his arrival/departure "Immigration Card" that he was permitted to stay in Hong Kong for 3 (or 6) months and this card was affixed to his passport available for the inspection of Aeroflot's check-in agent.

 Li Aff., P 9.

 Plaintiff has submitted evidence indicating that it was Aeroflot's policy to ask purchasers, at the time when Aeroflot tickets were being issued, if the proposed passengers were flying on any other airlines in conjunction with the Aeroflot segment of their journey. G.U.E. never asked agent Li any such question.

 DISCUSSION

 The parties agree that plaintiff's claims against Aeroflot are governed exclusively by the terms and conditions of the Warsaw Convention. See note following 49 U.S.C. § 1502. The issue before us is whether or not that ...


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