United States District Court, Northern District of Illinois, E.D
September 30, 1985
USHA HARPALANI, JAIDEEP HARPALANI, A MINOR, BY HIS MOTHER AND NEXT FRIEND USHA HARPALANI; AND HARESH HARPALANI, A MINOR, BY HIS MOTHER AND NEXT FRIEND USHA HARPALANI, PLAINTIFFS,
AIR INDIA, INC., DEFENDANT.
The opinion of the court was delivered by: Kocoras, District Judge:
The plaintiffs, Usha Harpalani and her two children, Jaideep
and Haresh Harpalani, are United States citizens who reside in
Naperville, Illinois. In March, 1983, they booked round trip
air transportation on Air India from New York to Bombay, India
through Air India agents in Chicago. After arriving in India
in August, 1983, Usha Harpalani allegedly contacted Air India
agents in Poona, India and confirmed reservations for their
return flight at 1:05 a.m.
on August 24, 1983. When the Harpalanis reported to the Air
India counter at the Bombay airport on the evening of August
23 for preflight check-in, Air India employees advised them
that the flight was over-booked and that they would not be
allowed to board. The complaint further alleges that Air India
refused endorse the Harpalanis' tickets to other airlines
which had flights from Bombay to New York that evening but
instead advised the Harpalanis to "try again tomorrow."
Complaint ¶ 21. Air India allegedly refused to board the
Harpalanis or endorse the tickets for the following six days
until on August 31, 1983, the Harpalanis were permitted to
board an Air India flight from Bombay to New York.
The Harpalanis seek to recover damages for the delay,
including inconvenience and monetary loss such as the cost of
meals and lodging in Bombay, telephone expenses and Usha
Harpalani's lost wages. The complaint alleges violations of
the Warsaw Convention, specified federal regulations, the
Illinois Consumer Fraud and Deceptive Business Practices Act
and breach of contract.
Air India has moved to dismiss on several grounds. Air India
asserts that Counts I and II fail to state a claim under
Article 19 of the Warsaw Convention and the federal
regulations, respectively, and in the alternative that if
Count I does state a cognizable claim under the Warsaw
Convention that the remaining counts should be dismissed
because the Convention provides an exclusive remedy. Air India
also moves for dismissal on forum non conveniens grounds.
Finally, Air India asks the court to strike the Harpalanis'
jury demand, pursuant to 28 U.S.C. § 1330. The motion to
dismiss will be granted in part and denied in part; the motion
to strike the jury demand will be granted.
The Warsaw Convention
A. Does Count I state a cause of action under the Warsaw
The Warsaw Convention applies to all international
transportation of persons, baggage, or goods performed by
aircraft for hire. Warsaw Convention, done Oct. 12, 1929, art.
1, note following 49 U.S.C. § 1502. For purposes of the
Convention, "international transportation" includes any
transportation in which both the places of departure and
destination are within the territory of signatories to the
Convention. Id. Both the United States and India are
Article 19 of the Convention provides:
The carrier shall be liable for damage occasioned
by delay in the transportation by air of
passengers, baggage, or goods.
Id. art. 19. While few reported cases discuss Article 19, those
few suggest that Article 19 provides a cause of action in cases
such as this one. See Mahaney v. Air France, 474 F. Supp. 532
(S.D.N.Y. 1979) (recovery under Article 19 of cost of ground
transportation necessitated by "bumping" by airline barred by
statute of limitations), Hill v. United Airlines, 550 F. Supp. 1048,
1054 (D.Kan. 1982).
Air India urges this court to adopt the reasoning of the
court in Brunwasser v. Trans World Airlines, Inc., 541 F. Supp. 1338
(W.D.Pa. 1982) and rule that the bumping does not fall
within the phrase "in the transportation by air." The facts of
Brunwasser are clearly distinguishable from those of the case
at hand, however. In Brunwasser, the plaintiff purchased in
February of 1981 non-stop round-trip tickets on TWA from
Pittsburgh to London in September of that year. When TWA later
cancelled the flight, the airlines contacted the plaintiff in
June and offered three alternatives to the previously scheduled
flight: (1) a non-stop flight on another day, (2) travel on the
date originally scheduled but with a stop in New York, or (3) a
refund of the purchase price of the tickets. The plaintiff,
finding none of the alternatives acceptable, filed suit,
claiming that cancellation of the flight violated Article 19 of
the Warsaw Convention. The court held that the cancellation did
not amount to a delay "in the transportation by air." The
court felt that the phrase should be construed narrowly and
adopted the definition found in Article 18 of the Convention,
which deals with airline liability for lost or damaged
The transportation by air within the meaning of
[this article] shall comprise the period during
which the baggage or goods are in the charge of
the carrier, whether in an airport or board an
aircraft . . .
Warsaw Convention, art. 18(2). This definition, however,
applies only to Article 18 of the Convention; that the
drafters did not provide a similar definition for Article 19
is significant. Furthermore, the Harpalanis, unlike the
plaintiff in Brunwasser, were at the airport and in the charge
of the carrier, as Air India controlled whether or not they
left that night, at the time of the bumping.
The Brunwasser court also applied the three-prong test used
by courts to determine whether a sufficient nexus exists
between personal injury and air travel to state a claim under
Article 17 of the Convention: the location of the accident, the
activity in which the injured person was engaged, and the
control by the defendant of the injured person at the time of
the accident. Brunwasser, 541 F. Supp. at 1344. The court found
that the test was not met because the acts complained of
"occurred long before [the plaintiff] was to engage in any air
travel with the defendant," and because by offering the
alternatives, TWA never exercised any significant control over
the plaintiff's actions. Id. at 1345. In the instant case, the
Harpalanis were notified of the bumping at the airport just two
hours before take-off. Furthermore, because Air India refused
to endorse the tickets and did not offer the Harpalanis any
alternatives, Air India exercised complete control over whether
the Harpalanis left India.
Air India also argues that recognizing that the Harpalanis
have a cause of action under Article 19 would defeat the
purpose of the Convention to limit the liability of
international air carriers. That purpose is met by subjecting
claims within the Warsaw Convention to a $75,000 ceiling on
damages, not by reading out of the Convention those claims
that clearly fall within it. Indeed, deciding that this
bumping was not actionable under the Convention would permit
the Harpalanis to proceed under another theory, such as breach
of contract, under which the airline's liability would be
Therefore, Count I does state a cause of action under the
Warsaw Convention and the motion to dismiss will be denied as
to Count I.
B. Does the Warsaw Convention provide the exclusive remedy?
Air India argues that if Article 19 does state a cause of
action, the Warsaw Convention provides an exclusive remedy and
therefore all of the remaining counts should be dismissed.
Article 24 of the Convention provides in relevant part:
In the cases covered by articles 18 and 19 any
action for damages, however founded, can only be
brought subject to the conditions and limits set
out in this convention.
The circuit courts of appeal which have discussed Article 24
have different understandings of the article's meaning. The
Ninth Circuit, in In re Mexico City Air-crash of October 31,
1979, 708 F.2d 400
, 414 n. 25 (9th Cir. 1983) suggested that
alternative legal bases of action remained available but that
neither the liability limits of the Convention nor its
limitation period may be circumvented by resort to such an
alternative basis. The Fifth Circuit has squarely held,
however, that where the Warsaw Convention provides an
independent cause of action, it provides the exclusive remedy
thereby preempting other state or federal law claims,
Boehringer-Mannheim Diagnostics, Inc. v. Pan American World
Airways, Inc., 737 F.2d 456
(5th Cir. 1984), cert. denied, ___
U.S ___, 105 S.Ct. 951
, 83 L.Ed.2d 959 (1985) and both the
Second and Third Circuits have indicated that they would follow
this approach. See Benjamins v. British European Airways,
572 F.2d 913
(2d Cir. 1978), cert. denied, 439 U.S. 1114
, 99 S.Ct.
1016, 59 L.Ed.2d 72 (1979), Abramson v. Japan Airlines Co.,
739 F.2d 130
, 134 (3d Cir. 1984), cert. denied, ___ U.S. ___, 105
S.Ct. 1776, 84 L.Ed.2d 835 (1985). The view that the Warsaw
Convention provides an exclusive remedy furthers the dual
purposes of the Convention to establish a uniform body of
world-wide liability rules to govern international aviation and
to limit of liability of international air carriers. Reed v.
Wiser, 555 F.2d 1079
, 1089-90 (2d Cir.), cert. denied,
434 U.S. 922
, 98 S.Ct. 399
, 54 L.Ed.2d 279(1977).
The Harpalanis argue that their allegations of willful
misconduct on the part of Air India, if proven, would permit
them to circumvent the exclusivity of the Convention. They
rely on Article 25(1) of the Convention which provides:
The carrier shall not be entitled to avail
himself of the provisions of this convention
which exclude or limit his liability, if the
damage is caused by his wilful misconduct. . . .
Warsaw Convention, art. 25(1).
Air India concedes that if willful misconduct on its part is
shown, the $75,000 limitation on liability may be disregarded.
The parties have not directed our attention to any cases and
our initial research has revealed no cases which suggest that
a showing of willful misconduct would permit recovery under
alternative legal theories. Rather, we read Article 25 to
preclude a defendant whose misconduct was willful from
defending on the grounds that it is not liable beyond
specified limits or for certain types of injury. For this
reasons, the allegations or proof of willful misconduct will
not permit the Harpalanis to proceed on alternative theories.
The claim under the Warsaw Convention provides the exclusive
remedy for delays in the transportation by air. Therefore,
Counts II, III and IV will be dismissed without addressing the
legal sufficiency of the claim under the federal regulations.
Forum Non Conveniens
Air India also seeks to dismiss the complaint on the ground
of forum non conveniens, contending that this suit is more
properly brought in an Indian forum. The Supreme Court listed
factors to be considered in determining whether an action
should be dismissed on forum non conveniens grounds in
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed.
1055 (1947). Unless the balance of factors is in the
defendant's favor, however, the plaintiff's choice of forum is
not to be disturbed. Id. at 508, 67 S.Ct. at 843.
Private interests of the litigants to be considered include
relative ease of access to sources of proof, availability of
compulsory process for the attendance of unwilling witnesses
and the cost of attendance of willing witnesses, and all other
practical problems. Air India employees who may testify as to
the occurrences in Bombay are located in India. However, the
Harpalanis, whose testimony on the events in Bombay and the
additional costs and inconvenience they experienced will be
crucial, reside in the Chicago area. Nor do the public
interests weigh heavily in favor of an Indian forum. The law
that will apply, that of the Warsaw Convention, would be the
same in either forum. Air India asserts that India has the
"greater interest in deciding this controversy arising from
the alleged conduct of Air India, a government entity." Mem.
in Support of Motion to Dismiss, p. 18. The residents of this
community, however, have an equal interest in the alleged
mistreatment of the Harpalanis by the airline.
Because the balance of factors does not strongly favor either
forum, the plaintiff's choice of forum will not be disturbed.
The motion to dismiss on the ground of forum non conveniens is
Availability of a Jury Trial
Air India also seeks to have the Harpalanis' demand for a
jury trial struck under 28 U.S.C. § 1330(a). That section
The district courts shall have original
jurisdiction without regard to amount in
controversy of any nonjury civil action against a
foreign state as defined in section 1603(a) of
this title as to any claim for relief in personam
with respect to which the foreign state is not
entitled to immunity under either section
1605-1697 of this title or under any applicable
28 U.S.C. § 1330(a). Under section 1603 foreign state includes
"a political subdivision of a foreign state or an agency or
instrumentality of a foreign state as defined in subsection
(b)." Under that subsection, an agency or instrumentality of a
foreign state means any entity:
(1) which is a separate legal person, corporate
or otherwise, and
(2) which is an organ of a foreign state or
political subdivision thereof, or a majority of
whose shares or other ownership interest is owned
by a foreign state or political subdivision
(3) which is neither a citizen of a State . . .
nor created under the laws of any third country.
28 U.S.C. § 1603(b). Air India is wholly owned by the
government of India and therefore qualifies as a foreign state
under section 1603.
Although section 1330 does not, on its face, preclude trial
by jury in actions against foreign states, courts of appeals
faced with the issue have uniformly so held. Arango v. Guzman
Travel Advisors, 761 F.2d 1527 (11th Cir. 1985), Goar v.
Compania Peruana de Vapores, 688 F.2d 417 (5th Cir. 1982),
Ruggiero v. Compania Peruana de Vapores, 639 F.2d 872 (2d Cir.
1981), Rex v. Compania Peruana de Vapores, 660 F.2d 61 (3d Cir.
1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d
441 (1982), Williams v. Shipping Corp. of India, 653 F.2d 875
(4th Cir. 1981), cert. denied, 455 U.S. 982, 102 S.Ct. 1490, 71
L.Ed.2d 691 (1982).
The legislative history of the section also indicates that
jury trials are not available under section 1330(a). H.Rep.
No. 1487, 94th Cong., 2d Sess. 13 reprinted in 1976 U.S.Code
Cong. & Ad.News 6604, 6611-12; S.Rep. No. 1310, 94th Cong., 2d
The Harpalanis argue that "a separate legal person,
corporate or otherwise," whose controlling shares are owned by
a foreign state is not precluded from being a citizen or
subject of a foreign state for purposes of the diversity
statute, 28 U.S.C. § 1332(a)(2), and therefore that
jurisdiction is also proper under that section, which imposes
no restriction on jury trials. Such an interpretation would
permit plaintiffs to sue state-owned corporations under section
1330(a), with a bar to a jury demand by either side, or elect
to sue under section 1332(a)(2) and have a jury in any case
ordinarily triable to a jury. This court agrees with other
courts which have addressed this argument that no such option
exists. "The same entity cannot be both a foreign state and a
citizen or a subject of a foreign state. . . . The conclusion
is inescapable from the language of the statute that Congress
meant section 1330 to be the exclusive means whereby a
plaintiff may sue any foreign state as defined in section
1603(a)." Ruggiero, 639 F.2d at 875.
The Harpalanis also argue that the definition of "foreign
state" in section 1603 applies only to chapter 97, not to
chapter 85 where section 1330 is located. Although section
1603 begins with the phrase "[f]or the purposes of this
chapter," the argument must fail as section 1330 specifically
refers to the definition in section 1603.
The Harpalanis advance the argument that jurisdiction exists
under 28 U.S.C. § 1331, the federal question statute, and
that they are entitled to a jury trial through that section.
The result would be that a plaintiff suing a foreign state on
a federal question could have a jury trial while a person
suing a foreign state on a nonfederal question could not. In
the words of the Second Circuit:
The courts must learn to accept that, in place of
the familiar dichotomy of federal question and
diversity jurisdiction, the Immunities Act has
created a tripartite division — federal question
cases, diversity cases and actions against foreign
states. If a case falls within the third division,
there is to be no jury trial even if it might also
come within the other two.
Ruggiero, 639 F.2d at 876.
Finally, the Harpalanis argue that striking their jury
demand would violate their Seventh Amendment right to a jury
trial. The Second Third, Fourth, Fifth, and Eleventh Circuits
have disposed of this argument by noting that the Seventh
Amendment only preserves a right to trial where one existed at
common law; it does not create a right to trial by jury. Since
no right to a jury trial existed in 1791 with respect to a suit
against a foreign government or an instrumentality thereof, no
right to a trial by jury exists here. Arango, 761 F.2d 1534-35,
Goar, 688 F.2d at 423-28, Ruggiero, 639 F.2d at 878-81, Rex,
660 F.2d at 65-69, Williams, 653 F.2d at 881-83.
The Harpalanis also rely on Pernell v. Southall Realty,
416 U.S. 363, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974) and Curtis v.
Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974) to
support their argument that a jury trial must be available
because this action involves remedies traditionally enforced at
law. It is not enough, however, that the nature of the
complaint is legal; the action must also be brought against a
defendant who was suable at common law in 1791. Williams, 653
F.2d at 883.
The Harpalanis have stated a cause of action under Article
19 of the Warsaw Convention for "delay in the transportation
by air." Because the remedy under the Convention is exclusive,
the remaining counts of the complaint are dismissed. The
motion to dismiss on the ground of forum non conveniens is
denied. The jury demand is struck pursuant to 28 U.S.C. § 1330(a).