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 ...