Haldimann, Martha v. Delta Airln Inc

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 28, 1999 Decided March 12, 1999

No. 98-7135

Martha Haldimann and Blaise Haldimann,

husband and wife,

Appellants

v.

Delta Airlines, Inc.,

Appellee

Appeal from the United States District Court

for the District of Columbia

97cv01670)

Barry C. Hansen argued the cause for appellants. With
him on the brief was Michael J. Pangia.

William G. Schaffer argued the cause and filed the brief
for appellee.

Before: Williams and Randolph, Circuit Judges and
Buckley, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: On June 19, 1996 Martha Haldi-
mann set out from Geneva on a journey to the United States.
Swissair was to take her to Washington and, at the end, back
to Geneva; Delta was to take her from Washington (leaving
about a week after her arrival) to Pensacola (to visit her
parents), then on to Gainesville (for a seminar at the Univer-
sity of Florida), and finally back to Washington in time for
her to depart for Geneva on July 15. On the Pensacola to
Gainesville leg of the journey, Haldimann was injured when
one of the engines caught fire during preparation for takeoff.
She sued Delta for her injuries, her husband joining for loss
of consortium. If the Pensacola-Gainesville flight was "inter-
national transportation" within the meaning of the Warsaw
Convention,1 then its provisions apply, with the effect (among
others) of limiting Delta's liability to $75,000. The district
court concluded that the Pensacola-Gainesville leg was inter-
national transportation, and granted Delta's motion for partial
summary judgment to that effect. It then granted plaintiffs'
motion to certify the order for immediate appeal under 28
U.S.C. s 1292(b), and we granted the petition for such an
appeal. We affirm.

* * *

The Convention defines international transportation as:

[A]ny 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 ... are situated either within the territo-
ries 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 ... of another power ...

Article 1(2), 49 U.S.C. s 40105 note (emphasis added). The
Convention also provides that transportation to be performed
by successive carriers shall be deemed to be

__________
1 Convention for the Unification of Certain Rules Relating to
International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000;
T.S. No. 876 (1934), reprinted in 49 U.S.C. s 40105 note.

one undivided transportation, if it has been regarded by
the parties as a single operation, whether it has been
agreed upon under the form of a single contract or of a
series of contracts, and it shall not lose its international
character merely because one contract or a series of
contracts is to be performed entirely within a territory
subject to the sovereignty ... of the same High Con-
tracting Party.

Article 1(3).

Although the emphasized language in Article 1(2) might
support a claim that the entire trip was international, the
parties assume that it is Article 1(3) that controls, and we
follow suit. The language of the Article 1(3), "if it has been
regarded by the parties as a single operation," suggests that
we must look to the intention of the parties. It would seem
rather difficult to do so, for they--especially the traveler--are
unlikely ever to have remotely considered the question wheth-
er the transportation was "a single operation," or ever to have
pondered what that phrase might mean. In fact, in the rare
case where there has been evidence of the traveler's subjec-
tive intent, and it contradicted the court's inference from
specific documentary indicia, courts have held that the indicia
trump subjective evidence. The cases mostly involve applica-
tion of Article 28(1), allowing jurisdiction in the place of
"destination," which on a round-trip means the starting place.
Thus, where Polish citizens flew from Warsaw to New York
intending not to return to Poland, but bought round-trip
tickets because otherwise the regime would not have allowed
them out of Poland, the court treated the ticket as controlling.
So the journey was the full round-trip, and Warsaw the
"destination." Klos v. Polskie Linie Lotnicze, 133 F.3d 164,
166-68 (2d Cir. 1997). And when a traveler bought a round-
trip ticket from Dakar to New York, leaving the date of the
return journey open, he was held to have embarked on a
round-trip even though he said (apparently without contra-
diction) that he intended to remain in New York and had
bought the round-trip ticket only because it was cheaper than
a one-way. Swaminathan v. Swiss Air Transport Co., 962
F.2d 387 (5th Cir. 1992). See also Sopcak v. Northern

Mountain Helicopter Service, 52 F.3d 817, 819 (9th Cir. 1995)
(looking to "intention of the parties as expressed in the
contract of transportation"); Petrire v. Spantax, 756 F.2d
263, 264-65 (2d Cir. 1985).

Here, Haldimann arranged her entire travel itinerary
through a Swiss travel agency called Lathion-Voyages, which
booked space on Swissair for the transatlantic travel and on
Delta for the travel within the United States. The Swissair
and Delta tickets were contained in separate booklets, but
both were issued and paid for on the same date, March 7,
1996. Both tickets share the same record number, with the
consequence that a Delta agent pulling up the Delta flights on
a computer would also see the Swissair legs of the journey,
and vice versa.

The Second Circuit in Petrire, and a host of district courts,
have found simultaneous issue of ticket booklets at a single
place sufficient to establish the "single operation" required by
Article 1(3). 756 F.2d at 264-65; see also McLoughlin v.
Commercial Airways (PTY) Ltd., 602 F. Supp. 29, 33
(E.D.N.Y. 1985) ("The law seems clear that where, as here,
the parties arrange and pay in full for an international trip at
the outset, each leg of the journey (even though some legs
may be wholly domestic, covered by a separate ticket and
carried on a separate airline) is within the Convention");
Vergara v. Aeroflot Russian Int'l Airlines, 390 F. Supp. 1266
(D. Neb. 1975) (court finds one undivided trip under Conven-
tion where each plaintiff purchased at same time, same place,
and through the same agent six booklets of tickets for an
around-the-world trip on eight different airlines with stops in
as many countries). They have reached that result apparent-
ly without even ascertaining whether a single record number
embraced all legs of the journey.

The plaintiffs emphasize that the Swissair and Delta com-
ponents of the journey were in separate ticket booklets and
that the entire trip took more than a month. No court has
regarded either of such factors as militating even in the
slightest against finding a "single operation." And the lan-
guage of the Convention argues against doing so, as Article

1(3) views transportation as "undivided ... whether it has
been agreed upon under the form of a single contract or of a
series of contracts." The Second Circuit in Petrire expressly
declined to allow the existence of multiple ticket booklets to
affect the analysis, even though, curiously, it appeared to
assume that a single operation required that there be only
one contract. Petrire, 756 F.2d at 265 ("The already fine
distinctions that have developed in construing the Warsaw
Convention would become absurd if the existence of a single
contract turned on whether the ... coupons issued for travel
... were enclosed in one or two booklets"). Nor are plain-
tiffs able to cite a single case relying on the duration of a
journey, even though the occasional case will reveal in the
statement of facts a journey about as long as the plaintiff's
here. See Vergara, 390 F. Supp. at 1268 (22 days scheduled
for journey, with flights "open" for later phases of trip).
Plaintiffs offer no reason why duration should be of any
relevance when other factors suggest a single undivided trip.

It may seem odd that Ms. Haldimann's Delta flights,
occurring entirely within the United States and in themselves
certainly capable of being viewed as a complete journey,
should prove to be part of "international transportation."
But the Convention aims primarily to "achiev[e] uniformity of
rules governing claims arising from international air trans-
portation." Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 552
(1991). And the liability limit, here cutting against Ms.
Haldimann, is only part of a trade-off, balanced as it is by the
Convention's presumption of liability. See Articles 17 et seq.;
see also El Al Israel Airlines v. Tseng, __ U.S. __, 119 S. Ct.
662, 672 (1999); Republic Nat'l Bank v. Eastern Airlines, 815
F.2d 232, 236 (2d Cir. 1987). It thus enables international
travelers to secure the benefits of the treaty regime even for
segments of international transportation that are wholly with-
in the territory of a signatory with a tort system far narrower
than that of the treaty.

Thus, viewing the evidence in the light most favorable to
the nonmoving party, as we must on summary judgment,
Adickes v. S.H. Kress and Co., 398 U.S. 144, 157 (1970), the

Pensacola-Gainesville journey was, as a matter of law, part of
"international transportation."

The judgment of the district court is affirmed.

So ordered.