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November 27, 1996


Appeal from the Circuit Court of Cook County. Honorable Kathy Flanagan, Judge Presiding.

Released for Publication January 15, 1997.

The Honorable Justice Burke delivered the opinion of the court: Hartman, P.j., and Scariano, J., concur.

The opinion of the court was delivered by: Burke

JUSTICE BURKE delivered the opinion of the court:

Plaintiffs Gustav Koehler, Ida Koehler, and Reimund Koehler (the Koehlers) appeal from an order of the circuit court granting defendant Scandinavian Airlines Systems (SAS) summary judgment pursuant to section 2--1005(b) of the Illinois Code of Civil Procedure (735 ILCS 5/2--1005(b) (West 1992)). On appeal, the Koehlers contend that the trial court erred in granting SAS summary judgment based on its determination that it lacked subject matter jurisdiction pursuant to the Warsaw Convention (Convention) *fn1 and, assuming arguendo " that they were engaged in "international transportation" as defined by the Convention, their common law State causes of action were not preempted by the Convention. For the reasons set forth below, we reverse.

SAS is a consortium formed by Aero-transport AB, Sweden (ABA), Det Danske Luftfartselskab, A/S, Denmark (DDL), and Det Norske Luftfartselskab A/S, Norway (DNL). The consortium owns SAS according to the following division: ABA 3/7, DDL 2/7, and DNL 2/7. ABA is incorporated and has its principal place of business in Sweden, DDL is incorporated and has its principal place of business in Denmark, and DNL is incorporated and has its principal place of business in Norway. SAS admits that it does business in Illinois.

On or about January 15, 1994, the Koehlers bought tickets to travel from Germany to Chicago and back to Germany. They purchased their tickets in Augsburg, Germany, through a travel agent, Asta Reisen, who ticketed them to fly on defendant SAS. According to the Koehlers, they obtained SAS's consent to have their dog "Terry" accompany them in the cabin of the plane in lieu of one piece of carry-on luggage.

On the return trip from Chicago to Germany, the Koehlers stopped in Copenhagen, Denmark to make a connecting flight. They had traveled from Germany to Chicago and Chicago to Copenhagen transporting Terry in the cabin of the plane. After arriving in Copenhagen, the Koehlers went to check in for their flight to Germany. They walked for 10 or 15 minutes to a SAS ticket counter which was located in a common area of the terminal. Upon checking in, they were told that they would have to pay extra to take the dog with them on their flight to Germany. When they refused to pay the additional amount, SAS directed the Danish police to arrest them, and they were denied access to telephones and the airport. (The record does not indicate how long or where they were detained.) The Koehlers subsequently left the airport, rented a car and returned to Germany.

On June 19, 1995, the Koehlers filed a complaint against SAS alleging false arrest and imprisonment, defamation, intentional infliction of emotional distress, and breach of contract. In its answer, SAS asserted eight affirmative defenses: (1) failure to state a cause of action upon which relief could be granted; (2) lack of subject matter jurisdiction pursuant to Article 28 of the Convention; (3) contributory negligence of the Koehlers pursuant to Article 21 of the Convention; (4) lack of liability or limitation of liability "pursuant to its [SAS's] Tariffs on file with the Department of Transportation of the United States and pursuant to its Conditions of Carriage as set forth in the relevant contract of transportation"; (5) lack of proximate cause or culpable conduct on the part of SAS; (6) complete performance of all the terms and conditions of the contract between the Koehlers and SAS; (7) dismissal pursuant to the Act of State Doctrine; and (8) dismissal pursuant to the doctrine of forum non conveniens.

On July 31, 1995, SAS filed a motion for summary judgment based on lack of subject matter jurisdiction pursuant to Articles 1(2) and 28 of the Convention. Article 1(2) defines "international transportation" as follows:

"For the purposes of this convention the expression 'international transportation ' shall mean any transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another power, even though that power is not a party to this convention. (Emphasis added.) 49 U.S.C.A. ยง 1502 (note) (1988).

According to SAS, because the Koehlers were involved in "international transportation," as defined in Article 1, the "Warsaw Convention applied to plaintiffs' claims and the court lacked subject matter jurisdiction over the action because plaintiffs had failed to bring the action in a proper forum under Article 28 of the Convention," which "restricts the forums in which damages actions may be brought" to four possible fora: the carrier's domicile; the carrier's principal place of business; where the contract was formed; or the place of final destination. SAS further maintained that none of these enumerated fora were located in the United States based on the following: (1) the domicile of the carrier within the meaning of the Convention is the carrier's place of incorporation, and SAS is domiciled in either Sweden, Denmark, or Norway, or all three; (2) the principal place of business of the carrier excludes the United States because SAS's corporate headquarters are located in Sweden; (3) the relevant contract of transportation in the transportation of passengers is the passenger ticket, and the contract between the Koehlers and SAS was made in Germany; and (4) the place of destination for purposes of Article 28 is the ultimate destination of transportation as indicated on the passenger ticket, and the Koehlers' final destination was Germany. SAS therefore argued that the United States is not the proper forum for the Koehlers' action against SAS, and their complaint should be dismissed.

In response to SAS's motion, the Koehlers contended that SAS missed a step in its analysis of the application of the Convention, arguing that Article I of the Convention only defines "international," and in order to define "transportation," the court must look to Article 17, which provides:

"The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations ...

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