Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Baah v. Virgin Atlantic Airways Limited


February 7, 2007


The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge.


Michael Baah brings this action for damages on behalf of his son Nana for injuries allegedly sustained by Nana when he was burned by a hot beverage while traveling on Virgin Atlantic Flight No. VS025 from London's Heathrow International Airport to New York's JFK International Airport on August 24, 2006. The airline has moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, or, alternatively, for summary judgment pursuant to Fed. R. Civ. P. 56. The motion to dismiss is granted because this Court does not have subject matter jurisdiction over this dispute pursuant to Article 33 of the Montreal Convention.

I. LEGAL STANDARD A. Fed. R. Civ. P. 12(b)(1)

Before addressing the merits of a given action, a federal court must consider the threshold question of whether it has subject matter jurisdiction to hear the case. See United Republic Ins. Co., in Receivership v. Chase Manhattan Bank, 315 F.3d 168, 170-71 (2d Cir. 2003); Concourse Rehab. & Nursing Ctr. Inc. v. DeBuono, 179 F.3d 38, 43 (2d Cir. 1999). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); see also Fed. R. Civ. P. 12(b)(1). The burden rests on the party invoking the court's authority to establish that the court possesses subject matter jurisdiction over the action. See Shenandoah v. Halbritter, 366 F.3d 89, 91 (2d Cir. 2004). That party must show by a preponderance of the evidence that subject matter jurisdiction exists. See Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002). In reviewing a motion to dismissforlack of subject matter jurisdiction, a court may consider material outside the complaint. See Makarova, 201 F.3d at 113.

B. The Montreal Convention

On November 4, 2003, before any of the events involved in this litigation took place, the treaty popularly known as the Montreal Convention entered into force in the United States, superseding a prior air carriage treaty commonly known as the Warsaw Convention.*fn1 See Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 371 & n.4 (2d Cir. 2004). The United States Senate gave its advice and consent to ratification of the Montreal Convention on July 31, 2003,*fn2 and the United States deposited its instrument of ratification on September 5, 2003.*fn3 Notably, the Montreal Convention is self-executing and creates a private right of action in U.S. courts.*fn4

The parties agree, as does the Court, that the Montreal Convention exclusively governs plaintiff's rights against Virgin Atlantic because the alleged physical injuries to Nana Baah were sustained during "international carriage" by air within the meaning of the convention, which is enforceable in both the United States and the United Kingdom.*fn5 See Def.'s Mem. in Support of Motion to Dismiss ("Def. Supp.") at 4-6; Pl.'s Mem. in Opposition to Motion to Dismiss ("Pl. Opp.") at 3; Oral Argument, Feb. 2, 2007; see also Montreal Convention, art. 29; Paradis v. Ghana Airways Ltd., 348 F. Supp. 2d 106, 110-11 (S.D.N.Y. 2004).

The issue for resolution, therefore, is whether this Court has subject matter jurisdiction over plaintiff's claims arising out of the Montreal Convention. Article 33(1) of the convention provides four grounds upon which a court may base its jurisdiction:

An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.

Montreal Convention, art. 33(1). Article 33(2) provides that a fifth basis for jurisdiction is, in certain situations, the state of principal and permanent residence of the passenger. Montreal Convention, art. 33(2). Thus, a plaintiff may bring an action in the United States for damages pursuant to the Montreal Convention only when the United States is: (1) "the domicile of the carrier"; (2) the "principal place of business" of the carrier; (3) the place where the carrier has a "place of business through which the contract has been made"; (4) "the place of destination"; or (5) the "principal and permanent residence" of the passenger.


The parties agree that bases of jurisdiction 1, 2, 3 and 5 set forth above do not confer jurisdiction on this Court because the United Kingdom is Virgin Atlantic's domicile and principal place of business; Nana Baah's passenger ticket was purchased in the United Kingdom; and plaintiff is a resident of the United Kingdom, not the United States. See Pl. Opp. at 4; Def. Supp. at 7; Def. Statement of Undisputed Material Facts dated Nov. 29, 2006 ("Def. St. Mat. Facts"), ¶ 5; Summons dated Sept. 19, 2006, attached as Exhibit A to Def. St. Mat. Facts; Oral Argument, Feb. 2, 2007. Accordingly, the Court need not consider whether any of those grounds confer jurisdiction on this Court.

Instead, plaintiff contends that because Nana Baah's destination at the time he was injured was New York, this Court has jurisdiction over the action pursuant to the fourth basis of jurisdiction provided by Article 33(1) -- "place of destination." Plaintiff acknowledges that Nana Baah's airline ticket "provided for round trip transportation, beginning and ending in London, England, with a stop in New York," but contends that New York should be construed as Nana's place of destination because "the intention of the infant as to when and if the infant would fly back to England was not definitive at the time of the accident." (Pl.'s Statement of Facts dated Dec. 11, 2006, ¶4.)

The Court's inquiry begins with the text.*fn6 As noted above, Article 33(1) of the Montreal Convention provides as follows:

An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.

Montreal Convention, art. 33(1). Article 28(1) of the Warsaw Convention, in turn, provides essentially the same in the following words:

An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination.

Warsaw Convention, art 28(1). Although the ordinary meaning of the text in each treaty's provision leaves ambiguous whether "place of destination" refers to the final point of destination on a round-trip ticket or the endpoint of the outbound portion of the trip, the provisions are extremely similar in language and substance.

In the context of the Warsaw Convention, it is well established that "the place of final destination for purposes of jurisdiction under the Warsaw Convention is the return city appearing on a round-trip ticket." Klos v. Polskie Linie Lotnicze, 133 F.3d 164, 167 (2d Cir. 1997). See also Schopenhauer v. Compagnie Nationale Air France, 255 F. Supp. 2d 81, 85 (E.D.N.Y. 2003). Furthermore, determination of "the final destination under the Warsaw Convention is governed by the contract between the parties, using basic contract principles," not by the "subjective intent of the parties." Klos, 133 F.3d at 167-68. If that principle controls, there is no question that Nana Baah's place of destination must be construed as London, not New York. However, plaintiff contends that because the Montreal Convention "is an entirely new and different treaty, based on entirely new ideals and principles," the case law interpreting the jurisdictional provisions of the Warsaw Convention provides no support for the proposition that "plaintiff's 'place of destination' was London instead of New York." (Pl. Opp. at 7.)

The Court recognizes that "[t]he Montreal Convention is not an amendment to the Warsaw Convention," but rather is "an entirely new treaty that unifies and replaces the system of liability that derives from the Warsaw Convention." Ehrlich, 360 F.3d at 371 n.4. As compared to the Warsaw Convention, the Montreal Convention is "a treaty that favors passengers rather than airlines." Id. (citations omitted); see also Weiss v. El Al Isr. Airlines, Ltd., 433 F. Supp. 2d 361, 365 (S.D.N.Y. 2006). Nonetheless, "[d]espite its newly aligned purpose, many of the provisions of the Montreal Convention closely resemble those of the Warsaw Convention." Weiss, 433 F. Supp. 2d at 365.

For that reason, the dispositive question in this case is whether displacement of the Warsaw Convention by the Montreal Convention requires the Court to interpret Article 33(1) differently than courts have uniformly and clearly interpreted its predecessor, Article 28(1) of the Warsaw Convention. The text of the Montreal Convention does not answer this question, but, as noted above, courts may look to the drafting history of a treaty where the ordinary meaning of a provision is not apparent from the text. See Vienna Convention, art. 32. See also El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168, 119 S.Ct. 662; 142 L.Ed. 2d 576 (1999); Commercial Union Ins. Co. v. Alitalia Airlines, S.p.A., 347 F.3d 448, 457 (2d Cir. 2003) (citing Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134-35, 109 S.Ct. 1676, 104 L.Ed. 2d 113 (1989)). Furthermore, "[r]espect is ordinarily due the reasonable views of the Executive Branch concerning the meaning of an international treaty." El Al Isr. Airlines, Ltd., 525 U.S. at 168. The Senate Foreign Relations Committee's report on the convention, which relied on testimony from the U.S. Department of Transportation and the U.S. Department of State, directly addressed the convention's drafting history with respect to the continued applicability of judicial decisions interpreting the Warsaw Convention:

In the nearly seventy years that the Warsaw Convention has been in effect, a large body of judicial precedent has been established in the United States. The negotiators of the Montreal Convention intended to preserve these precedents. According to the Executive Branch testimony, "[w]hile the Montreal Convention provides essential improvements upon the Warsaw Convention and its related protocols, efforts were made in the negotiations and drafting to retain existing language and substance of other provisions to preserve judicial precedent relating to other aspects of the Warsaw Convention, in order to avoid unnecessary litigation over issues already decided by the courts under the Warsaw Convention and its related protocols."

S. Exec. Rep. 108-8, at 3 (2003). See also 149 Cong. Rec. S10870 (daily ed. July 31, 2003) (statement of Sen. Biden) ("[A] large body of judicial precedents has developed during the[ ] seven decades [since the United States became a party to the Warsaw Convention.] The negotiators intended [ ], to the extent applicable, to preserve these precedents.").*fn7

Consistent with that interpretation, this Court has previously relied on cases interpreting a provision of the Warsaw Convention where the equivalent provision in the Montreal Convention was substantively the same. See Paradis, 348 F. Supp. 2d at 111. See also Igwe v. Northwest Airlines, Inc., No. H-05-1423, 2007 U.S. Dist. LEXIS 1204, at *10 (S.D.Tex. Jan. 4, 2007); Kalantar v. Lufthansa German Airlines, 402 F. Supp. 2d. 130, 140 n.10 (D.D.C. 2005).

To the extent plaintiff contends that a new interpretation of Article 33(1) is merited because of the purported passenger-friendly focus of the Montreal Convention, the new basis for jurisdiction provided by Article 33(2) undermines that contention. By enabling passengers to bring a cause of action in their place of principal and permanent residence -- a basis for jurisdiction not provided by the Warsaw Convention -- the drafters of the Montreal Convention considerably enhanced the available fora in which passengers may bring their claims.*fn8 As such, no reinterpretation of Article 33(1) is required for the sake of consistency with the "newly aligned purpose" of the Montreal Convention.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.