Auster v. Ghana Airways Ltd.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 6, 2007 Decided February 1, 2008

No. 05-7141

GAIL I. AUSTER, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OFKENNETH PAUL ROSEN,
DECEASED, AND NATURAL MOTHER OF SETH E.
AUSTER-ROSEN AND RACHEL K. AUSTER-ROSEN, MINORS, ET
AL.,
APPELLANTS

v.

GHANA AIRWAYS LTD., ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 02cv00733)

Nicholas Gilman argued the cause for appellants. With him
on the briefs was John M. Green.

Andrew J. Harakas argued the cause for appellees. With
him on the brief were Diane Westwood Wilson and Michael B.
MacWilliams.

Before: GINSBURG, Chief Judge, and RANDOLPH and
GRIFFITH, Circuit Judges.
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RANDOLPH, Circuit Judge: On June 5, 2000, Airlink Flight
200, traveling from Tamale, Ghana, crashed on its approach to
the airport in Accra, Ghana. On board were Kenneth Paul
Rosen, his daughter Megan Auster-Rosen, and Siddhartha
Prakash. Rosen was killed; Auster-Rosen and Prakash were
injured. Gail I. Auster (representing Rosen’s estate), Auster-
Rosen, and Prakash brought this action against Ghana Airways
Ltd., Airlink, and the Republic of Ghana. They sought damages
under Article 17 of the Warsaw Convention,1 which makes an
air carrier liable for an injury or death occurring in international
transportation aboard its aircraft. The district court held that the
Convention did not apply to Airlink Flight 200. We agree.

The Convention, to which the United States and Ghana are
signatories, is the exclusive remedy for an individual who is
injured aboard an aircraft in international transportation. El Al
Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 161 (1999).
The Convention provides that a domestic flight constitutes
international transportation if it is part of an international
itinerary “regarded by the parties[, i.e., the passenger and the
carriers,] as a single operation.” Art. 1(2)-(3); see also
Robertson v. Am. Airlines, Inc., 401 F.3d 499, 502 (D.C. Cir.
2005); Haldimann v. Delta Airlines, Inc., 168 F.3d 1324, 1325
(D.C. Cir. 1999).

Rosen and his daughter had tickets to fly out of Accra on
Ghana Airways three days after the Airlink flight. Prakash
claims that he was scheduled to leave on Ghana Airways one
day later. The defendants dispute Prakash’s claim, but we will
assume it to be true. Plaintiffs argued that the district court had

1
Convention for the Unification of Certain Rules Relating to
International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 137
L.N.T.S. 11, reprinted in 49 U.S.C. § 40105 note.
 3

jurisdiction to hear their claim under Article 28 of the
Convention, which permits a person to sue for damages “in the
territory of one of the High Contracting Parties . . . before the
court at the place of destination.” For a round-trip journey, the
destination is the same as the point of origin. Haldimann, 168
F.3d at 1325. Here, all three passengers began round-trip
journeys in the United States.

All three defendants are “foreign states” within the meaning
of the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-
1611. Under the Act, a “foreign state” includes an “agency or
instrumentality of a foreign state,” which must be “a separate
legal person, corporate or otherwise” that is “an organ of a
foreign state . . ., or a majority of whose shares . . . is owned by
a foreign state.” Id. § 1603(b)(1)-(2). Ghana’s status as a
foreign state is obvious. Airlink, which was the name given to
the commercial operations of the Ghana Air Force, was an
agency or instrumentality of a foreign state. Transaero, Inc. v.
La Fuerza Aerea Boliviana, 30 F.3d 148, 151-52 (D.C. Cir.
1994). Ghana Airways was incorporated under the laws of
Ghana and wholly owned by Ghana.

Because they are foreign states, the defendants are immune
from suit in federal court absent a statutory or treaty-based
exception to the grant of immunity. 28 U.S.C. §§ 1330(a), 1604.
Plaintiffs claim that this case presents two such exceptions.
First, the Foreign Sovereign Immunities Act grants immunity
“[s]ubject to existing international agreements to which the
United States is a party at the time of enactment of this Act.” 28
U.S.C. § 1604. Because the United States was a party to the
Convention when the Act became law, plaintiffs assert that the
Act does not preclude their suit. Second, plaintiffs argue that
Article 17 of the Convention, which establishes a carrier’s
liability for “the death or wounding of a passenger,” abrogates
the defendants’ sovereign immunity because 28 U.S.C.
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§ 1605(a)(1) recognizes an exception if “the foreign state has
waived its immunity either explicitly or by implication.” Under
either theory, the defendants are immune if the Convention does
not apply to the Airlink flight. Plaintiffs do not argue that any
statute or treaty other than the Convention abrogates the
defendants’ immunity.

We will assume for the sake of plaintiffs’ argument that the
Convention constitutes a waiver of immunity, although this
proposition is not obvious. See Argentine Republic v. Amerada
Hess Shipping Corp., 488 U.S. 428, 442-43 (1989) (finding no
waiver under § 1605(a)(1) when an international agreement did
not mention “a waiver of immunity to suit in United States
courts”); World Wide Minerals, Ltd. v. Republic of Kazakhstan,
296 F.3d 1154, 1162 (D.C. Cir. 2002) (“A foreign sovereign will
not be found to have waived its immunity unless it has clearly
and unambiguously done so.”). But see IAN BROWNLIE,
PRINCIPLES OF PUBLIC INTERNATIONAL LAW 339 (6th ed. 2003)
(the Convention “waive[s] . . . jurisdictional immunities”).
Nevertheless, no reasonable juror could conclude that the
Convention applies to Airlink Flight 200.

As we mentioned above, Article 1(3) of the Convention
provides that a domestic flight constitutes international
transportation if it is part of an international itinerary “regarded
by the parties as a single operation.” Although plaintiffs claim
that the three passengers intended their flight from Tamale to
Accra to be international transportation, what matters is the
objective evidence, not subjective evidence, of the parties’
intent. Robertson, 401 F.3d at 502, 504 n.3; Haldimann, 168
F.3d at 1325.

In February and April 2000, Rosen and Auster-Rosen
bought round-trip tickets on Ghana Airways from New York to
Accra. Prakash states that his employer bought him a one-way
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ticket from Accra to Ouagadougou, Burkina Faso, before May
15, 2000. Plaintiffs have never alleged that these tickets referred
to any domestic flight within Ghana. While in Accra, Rosen and
Auster-Rosen bought round-trip Airlink tickets from a travel
agent called M&J Travel & Tours. These tickets for the trip
from Accra to Tamale were labeled “DOMESTIC.” They
neither listed a date for the flight from Tamale to Accra nor
referred to any international flight. Before Prakash arrived in
Accra, his employer bought him a one-way ticket on Airlink
from Tamale to Accra. This ticket was also labeled
“DOMESTIC,” it was issued by M&J Travel & Tours, it listed
the date of the flight as “OPEN,” and it did not refer to any
international flight. None of the three passengers’ tickets
support the claim that Airlink Flight 200 constituted
international transportation.

Despite this lack of documentary support, Auster-Rosen and
Prakash say they believed Airlink Flight 200 was operated by
Ghana Airways. Their objective evidence for this belief is that
Ghana Airways issued their boarding passes for that flight. We
will assume that the passengers intended their flight on Airlink
to be international transportation under the Convention. Even
so, the Convention will not apply unless Ghana Airways and
Airlink also regarded the passengers’ itineraries “as a single
operation.” Convention art. 1(3); Pimentel v. Polskie Linie
Lotnicze (In re Air Crash Disaster at Warsaw, Poland, on
March 14, 1980), 748 F.2d 94, 96 (2d Cir. 1984); see Robertson,
401 F.3d at 502-04.

There is no proof that Airlink intended to provide anything
but a ticket for domestic transportation. Airlink operated only
domestic flights and had no operations outside Ghana. In fact,
there was no reason for Airlink to know of the passengers’
international itinerary. Auster-Rosen claims that she and Rosen
informed an Airlink representative that they needed to return
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from Tamale to Accra in time to catch their flight from Accra to
New York. Prakash claims that the travel agent who booked his
ticket knew that Prakash was a foreigner in international travel
because his employer, the World Bank, purchased the ticket.
However, M&J Travel & Tours, not Airlink, dealt with Rosen,
his daughter, and Prakash’s employer. Even if we were to
impute the travel agent’s knowledge to Airlink, as plaintiffs
urge, we would still agree that to “hold [an air carrier] to
Warsaw convention liability for supposed comments made in
passing to a single employee is wholly unreasonable. Stray
remarks do not alert an airline of its duties and liabilities. The
convention requires notice, not clairvoyance.” Santleben v.
Continental Airlines, Inc., 178 F. Supp. 2d 752, 757 (S.D. Tex.
2001) (quoted with approval in Coyle v. P.T. Garuda Indon.,
363 F.3d 979, 993 (9th Cir. 2004)). Under these circumstances,
Airlink did not have the knowledge necessary to intend the
passengers’ flight to be international transportation under the
Convention. See Haldimann, 168 F.3d at 1325 (“[I]n the rare
case where there has been evidence of the traveler's subjective
intent, and it contradicted the court's inference from specific
documentary indicia, courts have held that the indicia trump
subjective evidence.”)

Article 23 of the Convention, which prohibits a carrier from
limiting its liability, does not nullify Airlink’s policy of selling
tickets only in Ghana. Airlink did no business and operated no
flights outside Ghana. As a result, it might be difficult for any
plaintiff to recover from Airlink under the Convention.
Nevertheless, a carrier may decline to offer international flights
without violating the Convention. Article 33 of the Convention
provides that “nothing in this Convention shall prevent the
carrier . . . from refusing to enter into any contract of carriage.”
Additional Protocol No. 4 to Amend the Convention for the
Unification of Certain Rules Relating to International Carriage
by Air, Sept. 25, 1975, S. EXEC. REP. NO. 105-20 (1998), 2145
 7

U.N.T.S. 36, available at http://www.jurisint.org/doc/html/
ins/en/2000/2000jiinsen17.html. In this case, Airlink simply
exercised its freedom not to offer international transportation.

The doctrine of equitable estoppel also cannot overcome the
objective evidence in this case. Equitable estoppel means that
“he who by his language or conduct leads another to do what he
would not otherwise have done, shall not subject such person to
loss or injury by disappointing the expectations upon which he
acted.” Dickerson v. Colgrove, 100 U.S. 578, 580 (1879).
Among the requirements for equitable estoppel is false
representation. Int’l Org. of Masters v. Brown, 698 F.2d 536,
551 (D.C. Cir. 1983). According to plaintiffs, Airlink’s refusal
to do business outside Ghana somehow misled the passengers
into believing that their flight from Tamale to Accra would
constitute international transportation. But plaintiffs have
identified no false representation by any defendant. Equitable
estoppel does not apply.

The district court correctly concluded that the Convention
did not apply to the passengers’ flight. As a result, the court
granted summary judgment to Airlink and Ghana Airways, and
dismissed the suit against Ghana for lack of personal
jurisdiction. The court should have dismissed the entire case for
lack of subject matter jurisdiction. Because the defendants have
sovereign immunity, the federal courts lack subject matter
jurisdiction in this case. 28 U.S.C. § 1330(a); Verlinden B.V. v.
Cent. Bank of Nigeria, 461 U.S. 480, 493-94 (1983). When a
court lacks subject matter jurisdiction, it must dismiss the case
and not grant summary judgment. FED. R. CIV. P. 12(h)(3);
United Transp. Serv. Employees ex rel. Washington v. Nat’l
Mediation Bd., 179 F.2d 446, 453-54 (D.C. Cir. 1949); 10A
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 2713 (3d ed. 1998). The
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district court’s orders are vacated and the case is remanded with
instructions to dismiss for lack of subject matter jurisdiction.

So ordered.