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06/29/89 David Potter Duff, v. Rlines

June 29, 1989

DAVID POTTER DUFF, PLAINTIFF-APPELLANT

v.

VARIG AIRLINES, INC., S.A., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

542 N.E.2d 69, 185 Ill. App. 3d 992, 134 Ill. Dec. 69 1989.IL.1032

Appeal from the Circuit Court of Cook County; the Hon. Angelo Mistretta, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. LINN and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Plaintiff, David Potter Duff, appeals from the order of the circuit court of Cook County dismissing his complaint for lack of subject matter jurisdiction, pursuant to article 28(1) of the Convention for the Unification of Certain Rules Relating to International Transportation by Air, commonly known as and hereinafter referred to as the Warsaw Convention (49 U.S.C.A. § 1502 et seq. (1976)). Defendant, Varig Airlines, Inc., S.A., is a Brazilian corporation. The following issues are raised on appeal: (1) whether the Warsaw Convention is constitutional and (2) whether the trial court properly dismissed plaintiff's complaint for lack of subject matter jurisdiction, pursuant to article 28(1) of the Warsaw Convention.

Plaintiff filed his complaint on March 17, 1986, alleging that Varig was negligent in wrongfully ticketing his flight from Rio de Janeiro, Brazil, to Capetown, South Africa. Plaintiff claims that he was incorrectly advised by defendant of the departure time for his flight; therefore, he was delayed for one week and incurred expenses in the amount of $2,500.

On June 24, 1986, defendant filed a motion to dismiss plaintiff's complaint, claiming that the court lacked subject matter jurisdiction pursuant to article 28(1) of the Warsaw Convention. Plaintiff filed a response to defendant's motion, attacking the constitutionality of the Warsaw Convention. On September 10, 1986, a hearing was held on the motion to dismiss. After reviewing the motion, plaintiff's response, and arguments from each counsel, the trial court granted defendant's motion to dismiss. Plaintiff filed a motion for reconsideration which was denied on October 8, 1986. This appeal followed.

Plaintiff first contends that the Warsaw Convention is unconstitutional. Specifically, he argues that the Warsaw Convention deprives him of his fifth amendment right to due process of law under the United States Constitution in that it restrains his right to travel.

Essentially the Warsaw Convention concerns itself with the liability of air carriers for death and damages suffered by passengers engaged in international travel as defined by article 1(2) of the Warsaw Convention. The United States was not one of the original signatories to the Warsaw Convention; however, it "has declared its adherence to the provisions thereof by a Declaration of Adherence, advised by the Senate, and deposited at Warsaw on July 31, 1934. With congressional implementation it [became effective] for the United States on October 29, 1934." (Pierre v. Eastern Air Lines, Inc. (D.C.N.J. 1957), 152 F. Supp. 486, 487.) Article VI of the United States Constitution states:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of United States, shall be the supreme Law of the Land . . .." (U.S. Const., art. VI.)

Article 28(1) of the Warsaw Convention provides:

"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 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." 49 U.S.C.A. § 1502 (1976).

The constitutionality of article 28(1) was considered in People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, cert. denied (1979), 441 U.S. 932, 60 L. Ed. 2d 660, 99 S. Ct. 2052. Giliberto involved the hijacking of an Air France plane departing from Tel Aviv, Israel, on flight to Paris, France, with an intermediate stop at Athens, Greece, where the hijackers boarded. The plane was forced to fly to Entebbe Airport in Uganda where rescue subsequently occurred. Plaintiffs in the trial court action filed a negligence suit against Air France. Air France moved to dismiss the action pursuant to article 28(1) of the Warsaw Convention. The plaintiffs argued that Air France is domiciled in the United States because it conducts a substantial amount of business in the United ...


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