United States District Court, S.D. New York
July 7, 2005.
VIKTORIYA SHIROBOKOVA, Plaintiff,
CSA CZECH AIRLINES, INC. a foreign corporation for profit, and DELTA AIRLINES, INC, a foreign corporation for profit, Defendants.
The opinion of the court was delivered by: SIDNEY STEIN, District Judge
OPINION & ORDER
Viktoriya Shirobokova brings this suit to recover damages for
injuries she suffered on a CSA Czech Airlines, Inc. ("CSA")
flight from New York to the city of Prague in the Czech Republic.
She has asserted a Warsaw Convention claim, as well as several
state law claims against CSA and Delta Airlines, Inc. ("Delta"),
which had a code sharing agreement with CSA that applied to the
relevant flight. CSA has moved to dismiss Shirobokova's state law
claims. Given that the Warsaw Convention preempts these state law
claims, CSA's motion is granted. Delta has moved to dismiss all
claims against it. That motion is also granted because
Shirobokova's state law claims are preempted by the Warsaw
Convention, and because the Complaint does not state a claim for
relief pursuant to the Warsaw Convention against Delta in light
of the allegation that CSA operated the flight at issue.
The relevant facts alleged in the complaint are as follows: On February 5, 2002, Shirobokova left Minnesota, where she
resides, to fly to Russia.*fn1 (Compl. ¶¶ 2-3). She flew
from Minneapolis to Cincinnati on a Delta flight, from Cincinnati
to New York on another Delta flight, from New York to Prague on a
CSA flight and from Prague to St. Petersburg on another CSA
flight. (Id. ¶¶ 2, 5). During the New York to Prague flight,
Shirobokova suffered injuries, including "a traumatic brain
injury, damaged and bulging discs in her spine, [and] a fractured
rib," when the airplane encountered severe turbulence during the
flight. (Id. ¶¶ 5, 37).
Shirobokova alleges that on the New York to Prague flight she
was a passenger of both Delta and CSA, because the flight was
denominated CSA flight 051 and Delta flight 7300, as a result of
a code sharing agreement between the airlines. (Id. ¶¶ 2, 11).
Due to this code sharing agreement, Delta and CSA allegedly had
an "identity of interest" and were "alter egos of one another."
(Id. ¶ 11).
II. Legal Standard
When reviewing a motion to dismiss for failure to state a claim
for relief pursuant to Fed.R.Civ.P. 12(b)(6), a district court
may only dismiss a plaintiff's claim if "it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Drake v. Delta Air
Lines, Inc., 147 F.3d 169, 171 (2d Cir. 1998) (quoting Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80
(1957)) (quotation marks omitted). A court must treat all factual
allegations in the complaint as true and draw all reasonable
inferences in the plaintiff's favor. See Ganino v. Citizens
Utils. Co., 228 F.3d 154, 161 (2d Cir. 2000). The complaint need
only provide "`a short and plain statement of the claim showing
that the pleader is entitled to relief.'" Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 512, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002) (quoting
In connection with its motion to dismiss, Delta has submitted a
variety of evidentiary material. Shirobokova aptly urges that if
the Court were to consider that material, Delta's motion would
have to be converted to a motion for summary judgment pursuant to
Fed.R.Civ.P. 56. However, the Court has excluded all
evidentiary material and has considered only the allegations in
the Complaint, thereby rendering conversion of Delta's motion to
dismiss into a motion for summary judgment unnecessary. See
Friedl v. City of New York., 210 F.3d 79, 83 (2d Cir. 2000).
A. State Law Claims
Shirobokova brings state law claims against defendants for
negligence, breaches of warranty and negligent misrepresentation.
All of those state law claims are specifically preempted by the
terms of the Convention for the Unification of Certain Rules
Relating to International Transportation by Air, 49 Stat. 3000,
T.S. No. 876 (1934), reprinted in note following
49 U.S.C. § 40105, commonly known as the Warsaw Convention,*fn2 because
they arise from injuries Shirobokova suffered during an
The Warsaw Convention "created a comprehensive liability system
to serve as the exclusive mechanism for remedying injuries
suffered in the course of the `international transportation of
persons, baggage, or goods performed by aircraft.'" King v. Am.
Airlines, Inc., 284 F.3d 352, 356-57 (2d Cir. 2002) (quoting
Warsaw Convention art. 1 and citing El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 169-70, 119 S. Ct. 662,
142 L. Ed. 2d 576 (1999)); see also In re Air Crash at Belle
Harbor, NY, on November 12, 2001, 02 MDL 1448, 02 Civ. 6746, 02
Civ. 6747, 2003 WL 21032034, at *3 (S.D.N.Y. May 5, 2003).
Article 17 of the Warsaw Convention provides that "[t]he carrier
shall be liable for damage sustained in the event of . . . bodily
injury suffered by a passenger, if the accident which caused the
damage so sustained took place on board the aircraft. . . ."
Article 24 of the Warsaw Convention establishes the exclusivity
of the cause of action contained in Article 17, providing that
"any action for damages, however founded, can only be brought
subject to the conditions and limits set out in this convention."
The preemptive effect of Article 24 extends to all state law
claims relating to personal injuries sustained during
international passenger air travel. See King,
284 F.3d at 358.
Here, Shirobokova seeks redress for injuries that she suffered
during "[a]n `accident' . . . within the meaning of Article 17 of
the Warsaw Convention" on her flight from New York to Prague.
(Compl. ¶ 17). Accordingly, her state law claims are preempted by
the Warsaw Convention. See King, 284 F.3d at 358.
B. Warsaw Convention Claim
Delta seeks dismissal not only of Shirobokova's state law
claims, but also of her Warsaw Convention claim insofar as it
applies to Delta. When a journey involves segments on more than
one carrier, as Shirobokova's did, Article 30(2) of the Warsaw
Convention specifies that an injured party may "take action only
against the carrier who performed the carriage during which the
accident . . . occurred, save in the case where by express
agreement, the first carrier has assumed liability for the whole
The term "carrier" is not specifically defined in the
Convention, but "the manner in which it is employed, particularly
in the chapter titled `Liability of the Carrier,' makes clear
that the Convention's drafters were referring only to those airlines
that actually transport passengers or baggage. . . ." Pflug v.
Egyptair Corp., 961 F.2d 26, 31 (2d Cir. 1992); Kapar v. Kuwait
Airways Corp., 845 F.2d 1100, 1103 (D.C. Cir. 1988). Shirobokova
explicitly asserts that she was on a "CSA Czech Airlines Flight"
at the time of her injury. (Compl. ¶¶ 5, 17). The Complaint
contains no allegations even suggesting that Delta was the
carrier operating the ill-fated flight. Rather, the Complaint
simply alleges that Delta and CSA "had an identity of interest
and were alter egos of one another through the eyes of the
traveling public?" due to their code sharing agreement. (Id. ¶
11). A code sharing agreement is simply "an arrangement whereby a
carrier's designator code is used to identify a flight operated
by another carrier." 14 C.F.R. § 257.3(c).
The mere fact that Delta participated in code sharing with CSA
does not reasonably lead to the inference that Delta was the
carrier of the flight at issue, especially given the specific
allegation in the complaint that Shirobokova was injured on a
"CSA Czech Airlines Flight." (Compl. ¶¶ 5, 17); see Pflug,
961 F.2d at 31; see also In re AIR CRASH AT TAIPEI, TAIWAN, on
Oct. 31, 2000, No. MDL 1394, 2002 WL 32155476, at *5 (C.D. Cal.
May 13, 2002) ("[T]he language [of Article 17] does not speak of
dual or multiple carriers, but rather `the carrier' suggest[s]
that only one entity the operator of the aircraft bears
liability for damages arising from injuries occurring on the
aircraft."); Kapar, 845 F.2d at 1103 ("Our understanding of the
term `carrier,' as utilized in the Convention, comports with the
well-settled principle that an airline that issues a ticket for
carriage on another airline acts only as the agent for the
actual carrier.") (emphasis in original). Given that the
Complaint explicitly asserts that Shirobokova was injured on a
CSA flight, the alleged legal conclusion that the airlines were
alter egos of each other due to a code sharing agreement is
insufficient to state a claim against Delta for Warsaw Convention liability. See Hirsch v. Arthur Andersen & Co.,
72 F.3d 1085, 1092 (2d Cir. 1995) ("General, conclusory allegations
need not be credited . . . when they are belied by more specific
allegations of the complaint.").
Shirobokova has alleged that CSA was the carrier of the flight
between New York and Prague on which she sustained injuries. She
has not alleged that "by express agreement, [Delta] . . . assumed
liability for the whole journey." Warsaw Convention art. 30(2).
Thus, Shirobokova's Warsaw Convention claim against Delta is
Defendants' motions are granted because Shirobokova's state law
claims are preempted by the Warsaw Convention, and because Delta
was not the carrier of the flight on which she was injured.
Accordingly, Shirobokova's Complaint is dismissed except insofar
as it attempts to impose liability pursuant to the Warsaw
Convention on CSA in Count I.