United States District Court, Northern District of Illinois, W.D
June 19, 1964
PHYLLIS D. PARDONNET, ADMINISTRATRIX OF THE ESTATE OF CHARLES WILLIAM PARDONNET, DECEASED, LIBELANT,
THE FLYING TIGER LINE, INC., RESPONDENT.
The opinion of the court was delivered by: Decker, District Judge.
This case involves a libel in admiralty, filed by the personal
representative of a deceased, who was killed in an air line crash
on the high seas. This Court has jurisdiction under an act
entitled, "Death on the High Seas by Wrongful Act," 46 U.S.C. § 761.
Respondent has filed a special appearance and exception to the
jurisdiction of this Court on the ground that the Warsaw
Convention, 49 Stat. 3000, a treaty to which the United States is
a party, provides that the only United States court which could
have jurisdiction of this cause of action is in California.
Specifically, the respondent contends that Article 28 of the
Convention deprives this Court of jurisdiction. Article 28
provides as follows:
"(1) An action for damages must be brought, at the
option of the plaintiff, in the territory of one of
High Contracting Parties, either before the court of
the domicile of the carrier or of his principal place
of business, or where he has a place of business
through which the contract has been made, or before
the court at the place of destination.
"(2) Questions of procedure shall be governed by the
law of the court to which the case is submitted."
On the wording of this Article the respondent argues that since
this Court is neither the court of the carrier's domicile, nor
the court where the carrier has its principal place of business,
nor the court where the carrier has a place of business through
which the contract of carriage has been made, nor the court of
the place of destination of the flight, that this Court is
without jurisdiction and must dismiss the libel.
For the purpose of disposing of respondent's exception to
jurisdiction, the parties have agreed to a statement of facts in
this case. It has been stipulated that the respondent, The Flying
Tiger Line, Inc., is a Delaware corporation, having its principal
place of business in Burbank, California. On October 1, 1961, a
written agreement, a "Call Agreement," was entered into between
the respondent and the Air Force Department of the United States
of America. Pursuant to the Call Agreement, a service order dated
March 2, 1962, was issued by the United States Air Force to the
respondent at Burbank, California, and under which respondent
agreed to transport United States military personnel from Travis
Air Force Base, California, to Saigon, Viet Nam. On March 14,
1962, one of respondent's aircraft began operating as a Military
Air Transport Service Charter Flight 739/14. At all times
material to this libel respondent owned the aircraft in question,
Lockheed Model 1049H, U.S. Registry License N6921C.
Prior to boarding the flight in question, each of the
ninety-six United States military personnel was handed a boarding
ticket at Travis Air Force Base by an employee of the respondent,
The Flying Tiger Line, Inc., each with his own name thereon. Each
of these boarding tickets showed that the departure of the flight
in question was from Travis Air Force Base, California, with
destination, Saigon, Viet Nam. Charles William Pardonnet,
libelant's deceased, was issued one of the above-mentioned
Aboard the flight in question were one plane captain, two
co-pilots, two flight engineers, two navigators and four
stewardesses (all employed by the respondent, The Flying Tiger
Line, Inc.) and ninety-six United States military personnel,
including Charles William Pardonnet, libelant's deceased. It was
agreed between the respondent and the Air Force that money would
be paid to the respondent by the United States of America
covering the passage of the ninety-six United States military
personnel from Travis Air Force Base to Saigon, Viet Nam.
Subsequent to the departure of the flight in question from Agana,
Guam, on March 15, 1962, the aircraft disappeared and has never
The United States adhered to the Warsaw Convention on October
29, 1934, and Viet Nam adhered to the Convention on September 29,
The sole question before this Court is: If the Warsaw
Convention does apply, are the provisions of Article 28(1) of the
Warsaw Convention such that they prevent the jurisdiction of this
Court from attaching to a suit brought under the Death on the
High Seas Act when the respondent has neither its principal place
of business, its domicile nor the place of business through which
the contract of carriage of the libelant's deceased was made, in
the Northern District of Illinois, and further when the Northern
District of Illinois was not the place of destination of the
flight in question?
It is not appropriate at this point to pass upon the question
of whether the Warsaw Convention applies so as to limit the
damages recoverable for wrongful death to $8,300.00. The parties
have extensively briefed this point, but its
resolution may appropriately wait until a later stage of the
proceedings when the merits are at issue.
The issue is rather whether, regardless of the application of
the Warsaw Convention, this Court has jurisdiction. The
respondent bases its argument that this Court lacks jurisdiction
solely on the theory that the Warsaw Convention applies, and by
the provision of Article 28(1) bars the jurisdiction of this
Court. Therefore, assuming, for the purposes of the
jurisdictional question only, that the Warsaw Convention does
apply, the question is does its application bar this Court from
In this case it is clear that the domicile of the respondent is
Delaware and its principal place of business is Burbank,
California. It is also clear that the place where the respondent
has a place of business through which the contract has been made
is also in Burbank, California. There is no dispute that the
destination of the flight in question was South Viet Nam. None of
the four forums mentioned in Article 28 of the Warsaw Convention
lies in the Northern District of Illinois.
In Martino v. Trans World Airlines, Inc., filed in this Court
(60 C 1730), Judge Edwin A. Robson dismissed a lawsuit very
similar to the one at bar because there the defendant airline was
a Delaware corporation, with its principal place of business in
Kansas City, Missouri, and the place of business of the defendant
where the contract for a round trip was entered into was in
Washington, D.C. Judge Robson specifically found that none of the
four permissible alternative situs of jurisdiction existed there.
Two recent law review articles have explored this point, and
both have come to the conclusion that Article 28(1) of the Warsaw
Convention should be interpreted on a "national basis"; that the
four forums or situs for a lawsuit mentioned in Article 28(1)
should not be considered jurisdictional as far as United States
Courts are concerned but rather that each of the four should only
refer to the nation in which the lawsuit must be brought under
the Convention. The articles are found in 29 Journal of Air Law
and Commerce, 205, 226 et seq. (1963); and Charles E. Robbins,
Jurisdiction under Article 28 of the Warsaw Convention, 9 McGill
L.J. 352 (1963).
The United States has not adopted a statute implementing the
Warsaw Convention or Treaty. If this had been done, and if a
provision like Article 28(1) had been reproduced in that statute,
the argument that Congress had meant to limit domestic
jurisdiction to the four situs specified in Article 28(1) would
be more persuasive. However, it seems doubtful that the drafters
of the Warsaw Convention, almost all of whom were from civil law,
not common law, countries, and only a small number of whom were
from countries which have a federal court system similar to that
in the United States, would be concerned at all with the internal
operations of the judicial system of any particular nation. Thus,
it seems the better construction of Article 28(1) of the Warsaw
Convention to read each of the four situs mentioned as referring
only to the nation in which the suit may be brought but not to a
particular court within a nation.
Under this interpretation of the Convention, libelant could
bring her suit in either the United States or in South Viet Nam.
The particular court in either of these two nations in which the
suit had to be brought would then be referred to the local law of
each of the two nations.
This interpretation is supported by the fact that nowhere in
the Warsaw Convention is it provided that the suit must be
brought on the admiralty side of a court as a libel rather than
as a civil action. It is clear, however, that 46 U.S.C. § 761
requires that all suits brought under the Death on the High Seas
Act be brought on the admiralty side of the Federal District
Courts, and numerous Federal District Courts have so held. Higa
v. Transocean Airlines, 230 F.2d 780 (C.A.Hawaii 1956), cert.
denied 352 U.S. 802, 77 S.Ct. 20, 1 L.Ed. 2d 37; Trihey v.
Transocean Air Lines, Inc., 255 F.2d 824 (C.A.Cal. 1958) cert.
denied 358 U.S. 838, 79 S.Ct. 62, 3 L.Ed.2d 74; Fernandez v.
Linea Aeropostal Venezolana, 156 F. Supp. 94 (D.C.N.Y. 1957); Noel
v. Linea Venezolana, 154 F. Supp. 162 (D.C.N.Y. 1956); Noel v.
Linea Aeropostal Venezolana, 144 F. Supp. 359 (D.C.N.Y. 1956);
Iafrate v. Compagnie Generale Transatlantique, 106 F. Supp. 619
The drafters of the Convention would seem to have been no more
concerned with whether the situs of the action should be in one
Federal District of the United States or another than they were
in whether the form of the action were civil or in admiralty.
In Pitman v. Pan American World Airways, 223 F. Supp. 887
(E.D.Pa. 1963), one of the cases which gave rise to the two law
review articles referred to above, this problem was considered,
and Judge Grim said (at page 888):
"The Warsaw Convention was drafted in contemplation
of adherence by many nations with widely divergent
systems of jurisprudence and court structure. While
the drafters * * intended to limit the places where
damage suits could be brought, it seems unlikely that
they were concerned whether a suit properly brought
in the United States was tried in Philadelphia rather
than New York."
In that case an Arkansas plaintiff brought a civil action
against an airline with its domicile and principal place of
business in New York for personal injuries occurring on a flight
from Germany to New York, with the injury occurring in Holland.
Judge Grim also considered discussions held at the Warsaw
Conference in finding that Article 28(1) referred to "national"
forums only. His interpretation of these discussions is supported
by Calkins, "The Cause of Action under the Warsaw Convention," 26
J.A.L.C. 217, 222 (1959).
The second case discussed in the two 1963 law review articles
is Spencer v. Northwest Orient Airlines, 201 F. Supp. 504
(S.D.N.Y. 1962). There the Court denied the defendant's motion to
dismiss under Federal Rule of Civil Procedure 12(b) on the ground
that the Court lacked jurisdiction of the subject matter — a
diversity suit for personal injuries brought by a United States
citizen residing in Hong Kong, who was injured in the Philippines
on an Asiatic flight by the defendant's airline. The airline was
domiciled and had its principal place of business in Minnesota.
The Court said at page 506:
"* * * the use of the term `jurisdiction' in an
international convention drawn by representatives of
nations with widely divergent systems of
jurisprudence can scarcely be construed to refer to
the concept of subject matter jurisdiction as used in
the federal judicial system of the United States."
Further support of this "national" interpretation of Article 28
of the Convention is found in subsection (2) of that Article,
which states that: "Questions of procedure shall be governed by
the law of the court to which the case is submitted." Under
Article 28(1), the suit must be brought in the territory of one
of the high contracting parties; but questions of procedure, such
as whether that suit should be on the civil side or the admiralty
side of the court, or such as where within the territory of one
of the high contracting parties the court in which the suit is
filed should be located, are to be left to the law of the court
to which the case is submitted. Any distinction intended by the
drafters of the Convention between substance and procedure would
seem to be intended to determine which nation among the various
nations who are parties to the Convention may hear a suit for
damages arising from an airplane crash. What court within an
acceptable nation-forum that can hear a case would appear to be
of no international interest.
The defendant's argument in the case at bar would seem to
require a reading of the Article as distinguishing between
substance and procedure as if the Article decided in which court,
out of thousands
available in the United States, suit must be brought. This highly
technical problem, while it may be important to the United
States, cannot reasonably be conceived to be of concern to the
drafters of the Convention, and such an interpretation of Article
28(2) would be unwarranted.
In addition to Martino v. Trans World Airlines, supra, the
respondent relies on two other cases in support of its motion:
Dunning v. Pan American World Airways, 1954 U.S. & Can.Av.R. 70
(D.C.D.C.), and Scarf v. Allied Aviation Service Corp. and
T.W.A., 1955 U.S. & C.Av.R. 669, 156 U.S. & C.Av.R. 28
(S.D.N.Y.). Those cases did not deal with the question of a
Federal District Court's jurisdiction to hear a suit but rather
dealt with questions of venue under 28 U.S.C. § 1406(a). Both
courts adopted the view apparently that the Warsaw Convention
establishes its own venue requirements; each court transferred
cases to the forum which it considered to be the more proper
venue. Those cases are not persuasive in resolution of the motion
in the case at bar and clearly are not dispositive of the issue
All of the District Court cases cited above and relied upon by
the respondent were civil cases. The case at bar is a libel in
admiralty, and it must be pointed out that the jurisdiction and
venue requirements for an admiralty case in the United States may
be different than the requirements for civil cases based upon
diversity of citizenship jurisdiction. There is no venue
requirement in admiralty; the libelant is permitted to file a
libel in admiralty in any place where it can get personal service
on or attachment against the respondent. 28 U.S.C. § 1333(1)
confers jurisdiction on the United States District Courts. In re
St. Paul Fire and Marine Ins. Co., 134 U.S. 493, 10 S.Ct. 589, 33
L.Ed. 994 (1890), clearly holds that a libel in personam under
the admiralty jurisdiction of the United States District Court
may be maintained against a corporation in any district in which
service of process may be had upon it. In the case at bar, The
Flying Tiger Line, Inc., does business in Illinois; service was
properly had upon it; and venue would lie under 28 U.S.C. § 1391.
In conclusion, assuming only for the purposes of respondent's
exception to the jurisdiction of this Court, that the Warsaw
Convention does apply to this case, Article 28(1) determines only
which nations can hear the case, but not which court within an
appropriate nation. Article 28(2), by leaving questions of
procedure to the court to which the case is submitted, would
determine which court within an appropriate nation may hear a
case. Under the domestic jurisdiction and venue statutes of the
United States, the libel in personam in the case at bar is
properly filed in the Northern District of Illinois, and this
Court properly has jurisdiction and venue of the subject matter
Therefore, the respondent's special appearance and exception to
the jurisdiction of this Court is overruled, and the respondent
is directed to answer the libel within twenty days.
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