carrier's "place of business through which the contract has been made"; and (2) the "place of destination."
1. "Place of business through which the contract has been made"
Plaintiff's counsel argues that the contract of carriage was formed when Lam sent a fax to agent Li agreeing to purchase the tickets on Aeroflot's terms. In making this assertion, they expect us to draw the conclusion that the contract was entered into within the United States. This argument is flawed in that the agreement to purchase the tickets was effectuated by agent Li with G.U.E., not by Lam with agent Li.
Case law supports the view that the "place of business through which the contract has been made" is the place where the passenger ticket was issued. See Stanford v. Kuwait Airways Corporation, et al. (S.D.N.Y. 1986) 648 F. Supp. 657, 661 (contract was made where decedents' airline tickets were purchased and issued); Smith v. Canadian Pacific Airways, Ltd. (2d Cir. 1971) 452 F.2d 798, 803 (jurisdiction [under this prong] not proper where the ticket was purchased outside the United States and no United States contacts, including but not limited to interline or intraline ticketing arrangements, existed beyond the presence of a ticketing and booking office of the carrier-defendant). Since Li, acting as Lam's agent, purchased the tickets from Aeroflot in Hong Kong, jurisdiction cannot be claimed under this prong.
2. "Place of destination"
The "place of destination" of a journey, as contemplated by the Warsaw Convention, is determined by reference to the intent of the parties. In re Alleged Food Poisoning, supra, 770 F.2d at 5. If the parties have regarded the transportation as an undivided round-trip journey, the existence of various stops on successive carriers does not alter the fact that the end of the trip is the "place of destination." Id. at 6. Thus the ultimate "destination," and not any "agreed stopping place," controls for purposes of jurisdiction under the rubric of the Convention. Id. In the cited case the injured passenger, who was traveling on a ticket from London to Washington, D.C., claimed the United States as a proper forum for his suit. The court rejected his assertion on a finding that although the London to Washington ticket was the only one issued by the carrier being sued, it was one of several tickets used by the passenger on his round trip journey to and from Riyadh, Saudi Arabia. Id.
The record before us conclusively establishes that Lam, just as the passenger in In re Alleged Food Poisoning, had embarked upon a round trip journey beginning, and supposed to end, in the same city. Though he planned to stop in several countries (i.e., Hong Kong, China, Russian Federation) and travel on various carriers (i.e., United Airlines, Dragon Air, Aeroflot) his point of embarkation was Denver, as was the terminus of his planned journey.
Defendant cites Klos v. Polskie Linie Lotnicze (2d Cir. 1997) 133 F.3d 164 and Swaminathan v. Swiss Air Transport Co., Ltd. (5th Cir. 1992) 962 F.2d 387 for the proposition that Hong Kong, and not the United States, should be considered the "place of destination" of the trip during which Lam was killed. Neither of these cases has any bearing on the facts before us.
In Klos, the travelers whose deaths were sought to be litigated were Polish nationals who had purchased round-trip tickets from the defendant carrier to New York and back to Poland. Since they were seeking to escape the Communist regime then controlling Poland, they planned to deplane in New York and never return to their homeland. All Polish citizens were then forced by the Communist government to purchase round-trip tickets. As a result, these travelers never told the airline anything about their plans to make the United States their final destination. The Klos court declined to find United States jurisdiction where the unexpressed intention of the travelers ignored the route specified on their round-trip tickets.
The Klos opinion started out by rejecting the district court's ruling that "the intention of the passenger alone, and not the mutual intention of the parties as expressed in the contract, or otherwise, determines the passenger's 'ultimate destination.'" In re Air Crash Disaster Near Warsaw (E.D.N.Y. 1991) 760 F. Supp. 30, 32. It made clear that in determining where a passenger intends to make a final destination, one is not to consider his unexpressed wishes, but only the expressed wishes disclosed in his contract with the carrier who issued the ticket. Klos, 133 F.3d at 167-68. The opinion drew a sharp distinction between the expressed intent of the passengers to return to Poland and their covert intent to remain in the United States. In concluding its analysis of the issue, it pointed out that "the contract between LOT and decedents [passengers] was unambiguous, indicating the clear mutual intent of the parties that Warsaw be the place of final destination." (emphasis ours) Id.
On the facts of the case at bar, it is by no means unambiguous that a final destination of Hong Kong was the "clear mutual intent of the parties." Lam's ticket, assuming that it represented a contract between Lam and Aeroflot, was at best an incomplete document which in no way indicated the intent of anyone. Information concerning Lam's intent (notation of which would in no way have effected the validity or meaning of the ticket) was never requested by the defendant. Unlike the travelers in Klos, Lam harbored no covert plan to diverge from the route specified on the total sum of his tickets. Had Aeroflot, in issuing the ticket for its segment, been interested in learning Lam's ultimate destination, it could easily have learned it from agent Li, who was negotiating with it on Lam's behalf.
In Swaminathan, the plaintiff had bought a round-trip ticket from Dakar, Senegal to New York and back to Dakar. He nonetheless asserted that New York had been his ultimate destination and that he had left open the specific flight numbers and dates for his return to Dakar. It appears that Swaminathan intended to remain permanently in New York, but found that purchasing a round-trip ticket would be cheaper than a one-way passage. The court rejected his argument and deemed Dakar to have been his final destination, holding, as would the Second Circuit in Klos, that when a contract is unambiguous, the instrument alone is taken to express the intent of the several parties. 962 F.2d at 389.
To summarize the distinctions between the facts before us and those in Klos and Swaminathan : In the first place, in the case before us there exists no instrument (or combination of instruments) which could by any stretch of the imagination be deemed a contract between the parties expressing the intent or understanding of either of them on whether the trip from Hong Kong to Russia and return should be considered an independent journey or a segment of a larger business trip beginning and ending in Denver.
We turn to other indications of the intent or understanding of the respective parties.
With respect to Lam's intent, everyone concerned with the journey was aware of his plan to make a business trip starting in Denver and ending there. He did nothing to conceal his plan from the carrier. With respect to Aeroflot, it actually participated in making the Hong Kong/Russia segment a part of the overall trip. Its authorized Denver agent, being temporarily unable to perform its usual function of issuing Aeroflot tickets for segments of planned round-trip journeys, advised Lam to apply directly to Hong Kong. Furthermore, as we have seen from agent Li's affidavit, Lam carried with him a variety of documents which he was presumably required to present to customs authorities and to airline employees upon boarding an aircraft, all of which clearly indicated that Hong Kong was not the end of his journey. No reasonable finder of fact could fail to conclude that Aeroflot must have learned of Lam's true plans at least before it permitted him to embark on the fatal leg of the journey.
We find Daniel Lam's "place of destination", as contemplated by the Warsaw Convention, to have been Denver, CO. Defendant's motion to dismiss for lack of subject matter jurisdiction is therefore denied.
April 14, 1998
New York, NY
WHITMAN KNAPP, SENIOR U.S.D.J.