United States District Court, Northern District of Illinois, E.D
November 21, 1984
ANGELO J. DORIZAS, PLAINTIFF,
K.L.M. ROYAL DUTCH AIRLINES, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
K.L.M. Royal Dutch Airlines ("K.L.M.") has moved to dismiss
the Second Amended Complaint filed by Angelo Dorizas
("Dorizas").*fn1 For the reasons briefly stated in this
memorandum opinion and order, K.L.M.'s motion is denied.
Dorizas seeks damages for the alleged loss of baggage on a
flight between Athens and Amsterdam. That claim is asserted
here under the Warsaw Convention, 49 U.S.C. § 1502 note
(Article 28 of the Convention provides for jurisdiction over
foreign carriers in damage claims where the carrier has a place
of business through which the contract was made, and Dorizas
says that applies here).
K.L.M. rests its motion to dismiss on the theory that the
Warsaw Convention does not itself create a cause of action.
With commendable candor, K.L.M.'s counsel acknowledges that
the tide has turned to run against K.L.M. on this score.
Benjamins v. British European Airways, 572 F.2d 913, 918 (2d
Cir. 1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59
L.Ed.2d 72 (1979), followed in In re Mexico City Air-crash of
October 31, 1979, 708 F.2d 400, 409-16 (9th Cir. 1983) and
Enayati v. Lufthansa German Airlines, 714 F.2d 75 (9th Cir.
1983); Seth v. BOAC, 329 F.2d 302, 305 (1st Cir. 1964). K.L.M.
contends the older law in the Second Circuit and elsewhere, as
exemplified by Judge Van Graafeiland's dissenting opinion in
Benjamins, 572 F.2d at 919-23, is more sound.
Neither Judge Van Graafeiland nor K.L.M. cites any decisions
by our own Court of Appeals, which does not appear to have
spoken to the subject. And with all respect to K.L.M.'s
characterization of Judge Van Graafeiland's reasoning as a
"thoughtful dissent," both Benjamins and Mexico City Aircrash
reflect equally thoughtful and reasoned treatment (each of
those decisions reversed prior case law to the contrary in its
Circuit). This Court will not accept K.L.M.'s invitation to
swim upstream to spawn a return to the older law. K.L.M.'s
motion is denied, and it is ordered to answer the Second
Amended Complaint on or before November 30, 1984.