Koehler v. Scandinavian Airlines Systems

No. 1--95--4330

GUSTAV KOEHLER, IDA KOEHLER ) Appeal from the

and REIMUND KOEHLER, ) Circuit Court of

) Cook County.

Plaintiffs-Appellants, )

)

v. )

)

SCANDINAVIAN AIRLINES SYSTEMS, ) Honorable

) Kathy Flanagan,

Defendant-Appellee. ) Judge Presiding.

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) 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. 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 1 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 of embarking

or disembarking." Note following 49 U.S.C.A.

1502 (1988).

Based upon this provision, the Koehlers argued that because they

were not on board the aircraft or in the course of embarking or

disembarking, the Convention did not apply and thus did not

preclude the trial court's jurisdiction.

In reply, SAS claimed that the Koehlers misconstrued the

proper application of Article 17, which provides a plaintiff with

a cause of action arising from personal injuries or death, in

determining whether the Convention applies. SAS maintained that a

court must first determine whether the Convention applies under

Article 1 and then determine whether the court has proper subject

matter jurisdiction under Article 28 before reviewing the

requirements and restrictions of Article 17.

SAS further argued that notwithstanding some courts have found

that even if the Convention applies, a plaintiff's state law claims

would not be preempted thereunder, there is a split in the federal

circuits regarding this approach. Accordingly, SAS argued that if

the trial court found the Convention applied to the Koehlers'

complaint and it did not preempt their State law claims, the trial

court would still have to dismiss the complaint due to lack of

subject matter jurisdiction pursuant to article 28 of the Convention.

On November 17, 1995, the trial court held that the

Convention applied to the Koehlers' complaint, and granted SAS's

motion for summary judgment because, pursuant to Article 28, the

court lacked subject matter jurisdiction. This appeal followed.

On appeal, the Koehlers contend that the trial court erred in

granting SAS's motion for summary judgment based on lack of subject

matter jurisdiction, arguing the Convention should never have been

applied to the instant case because the Koehlers were not involved

in "international transportation" as defined in Article 1 of the

Convention. They further argue that a court must look to both

Articles 1 and 17 of the Convention to determine what activity

constitutes "international transportation." According to the

Koehlers, they were not in the course of any of the operations of

embarking or disembarking and thus were not engaged in

"international transportation." More specifically, they were

nowhere near the gate, were not under the control of SAS, and were

merely checking in at the time their injury occurred. Accordingly,

the Koehlers argue, they were not engaged in "transportation" at

the time of the injury, and thus the Convention and its

jurisdictional limitations do not apply to their claims.

SAS argues, as it did in the trial court, that a court must

first look to Article 1 of the Convention and its definition of

"international transportation" to determine if the Convention

applies. If the Convention does apply, the court must then look to

Article 28's jurisdictional requirements to determine if the

plaintiff has filed in the proper forum and, if so, only then can

it look to Article 17, which provides a plaintiff with a cause of

action for damages if the plaintiff was on board the aircraft or

embarking or disembarking at the time of the accident. SAS asserts

that any other interpretation in determining whether the convention

applies is contrary to the plain meaning of the Convention.

The standard of review for summary judgment is de novo. Urban

v. Village of Lincolnshire, 272 Ill. App. 3d 1087, 1094, 651 N.E.2d

683 (1995). A reviewing court must determine whether the trial

court correctly ruled that no genuine issue of material fact

existed, and that judgment was correctly entered for the moving

party as a matter of law. Urban, 272 Ill. App. 3d at 1094. The

reviewing court must view the evidence in a light most favorable to

the nonmoving party. Turner v. Roesner, 193 Ill. App. 3d 482, 549

N.E.2d 1287, cert. denied, 140 Ill. 2d 555 (1990).

"The scope of the Warsaw Convention is a matter of federal law

and federal treaty interpretation, and must be determined from an

examination of the 'four corners of the treaty.'" Maugnie v.

Compangie Nationale Air France, 549 F.2d 1256, 1258 (1977). Treaty

interpretation necessarily requires an evaluation of legislative

history and the intent of all parties involved in the contract.

Maugnie, 549 F.2d at 1258; Wolgel v. Mexicana Airlines, 821 F.2d

442, 444 (1987).

A reading of the legislative history of the Convention reveals

its purpose is to protect airlines from huge damage claims due to

mass air disasters, and to establish a system of uniformity

regarding claims and the applicable substantive law. In re Air

Disaster at Lockerbie, Scotland v. Pan American World Airways,

Inc., 928 F.2d 1267, 1270 (1991), citing Lowenfeld & Mendelson, The

United States and the Warsaw Convention, 80 Harv. L. Rev. 497, 498-

99 (1967). Section 22 of the Convention limits the liability of

the airlines in order to allow them to establish insurance rates

and to lessen potential litigation against the airlines. In re Air

Disaster at Lockerbie, Scotland, 928 F.2d at 1271.

Initially, the Convention limited a plaintiff's recovery to

approximately $8,000, however, in 1966, the Montreal Agreement

modified this amount. CAB Agreement 18900, reprinted in 49

U.C.S.A. 1502 (note) (1988). The Montreal Agreement adopted a

trade-off: Air carriers would be strictly liable, thus eliminating

the requirement of proving fault, in exchange for a damage cap of

$75,000. Beaudet v. British Airways, PLC, 853 F. Supp. 1062, 1065

(1994). Articles 1 and 17 of the Convention indicate that it

applies to all international air flights and creates liability in

the event of death or bodily injury sustained while on board the

aircraft, or in the course of the operations of embarking or

disembarking.

SAS seeks to have this court rule that whenever a passenger

holds a ticket for international travel between signatory

countries, any claim against the airline must be controlled by the

provisions of the Convention. We cannot agree, however, with this

proposition. To do so would mean that once a passenger purchases

a ticket for international transportation, the Convention and its

jurisdictional requirements apply to any negligent actions of the

airline. Such a conclusion would render airlines immune from their

negligent acts occurring within the terminal when the passenger is

not involved in an "accident," not on board the airplane, or not in

the course of the operations of embarking of disembarking. This is

clearly not the intent of the drafters of the Convention. Indeed,

Illinois federal courts have recognized this as an untenable

"position." Specifically, in Beaudet, 853 F. Supp. at 1070, the

court stated:

"Under this position, an air carrier's

negligence against a passenger having a ticket

on one of that carrier's international flights

is entirely excused by the Warsaw Convention

if the passenger is not 'on board the aircraft

or in the course of any of the operations of

embarking or disembarking.' In the opinion of

the Court, this conclusion demonstrates the

absurdity of Defendant's position. One thing

that the Warsaw Convention did not mean to do

was to grant international air carriers

absolute immunity from their negligence inside

the terminal."

We agree with plaintiffs here that the Convention does not

create an exclusive cause of action for any injury incurred by a

passenger holding a ticket for international travel. See Abramson

v. Japan Airlines Co., Ltd., 739 F.2d 130, 134 (1984) ("[T]he

Warsaw Convention's limitation and theory of liability is exclusive

when it applies *** but it does not preclude alternative theories

of recovery"); Tandon v. United Air Lines, 926 F. Supp. 366, 370

(1996) ("Courts addressing the issue have held that, although the

Warsaw Convention preempts state law claims falling within its

scope, it does not preempt claims that are not covered by it

provisions"); In re Air Disaster at Lockerbie, Scotland, 928 F.2d

at 1273 ("[The issue is not] whether a plaintiff may bring a state

cause of action when the claim does not arise under the Warsaw

Convention, which a plaintiff plainly may institute"); Walker v.

Eastern Air Lines, Inc., 785 F. Supp. 1168, 1170 (1992) ("[N]othing

in the text of the Warsaw Convention precludes the plaintiff from

instituting an action against the air carrier to recover for ***

death or bodily injury under state law"). Clearly, the drafters of

the Convention "intended to ensure uniformity in air carriers'

liability for death or bodily injury in the event of accidents,

rather than uniformity in air carriers' liability for death or

bodily injury generally." Walker, 785 F. Supp. at 1171.

This analysis is consistent with the intent of the drafters of

the Convention, who clearly did not intend for the Convention to

preclude all claims not described within the text of the treaty.

In discussing whether Article 19 of the Convention, which pertains

to "damages occasioned by delay in the transportation by air of

passengers, baggage, or goods," would bar a claim for total

nonperformance of a contract between a ticket holder and the

airline, Mr. Ambrosini, the delegate from Italy, noted that Article

[19] did not provide a remedy for nonperformance. Wolgel, 821 F.2d

at 444. Mr. Ambrosini suggested that the treaty be amended to

include a provision for total nonperformance; however, the drafters

determined that there "was no need for a remedy in the Convention

for total nonperformance of the contract, because in such a case

the injured party has a remedy under the law of his or her home

country." Wolgel, 821 F.2d at 444. Similarly, in the present

case, no provision exists covering the Koehlers' noncontractual

claims against SAS. As in the case of nonperformance of the

contract, the Koehlers' noncontractual claims may be remedied under

the law of their home country if they can establish jurisdiction.

We briefly observe that SAS's reliance on Duff v. Varig

Airlines, Inc., 185 Ill. App. 3d 992, 542 N.E.2d 69 (1989), in

support of their argument that courts must determine the

application of the Convention by looking to Article 1 for the

definition of "international transportation" and then apply the

jurisdictional limitations enumerated in Article 28 before

evaluating the liability provision in Article 17, is misplaced.

Duff is not inconsistent with our decision in the present case. In

Duff, the defendant airline incorrectly advised the plaintiff, who

was traveling from Brazil to South Africa, of his departure time.

As a result, the plaintiff missed his flight, and incurred expenses

of $2,500. The Duff court held:

"If the passenger's ticket provides for

international transportation as defined above

[Article 1], 'this is sufficient to invoke the

Warsaw Convention.' Accordingly, '[w]hen the

contract of the parties provide for

transportation between certain designated

termini, the provisions of the Convention

automatically apply and exclusively govern the

rights and liabilities of the parties.'"

The Duff court reasoned that because the Warsaw Convention applied

under Article 1, the plaintiff was required to meet the

jurisdictional restrictions enumerated in the Convention. Because

the plaintiff had not brought the suit in one of the four fora

listed in the Convention, the court dismissed the case for lack of

subject matter jurisdiction.

Duff is distinguishable from the case at bar, however. The

issue in Duff was whether the Convention applied to the defendant

airline's breach of its contractual duties. Clearly, under Article

1, a contract claim based on the ticket which provided for

international transportation falls within the scope of the

Convention. Here, although one of the Koehlers' claims is a

contract claim which is subject to the Convention, their claims for

false arrest and imprisonment, defamation, and intentional

infliction of emotional distress clearly do not fall within the

scope of the types of injuries the Convention was intended to

cover.

For the reasons stated, therefore, we affirm the circuit

court's grant of summary judgment on plaintiffs' breach of contract

claim, but reverse the grant of summary judgment as to plaintiffs'

claims alleging false arrest and imprisonment, defamation, and

intentional infliction of emotional distress, and remand the cause

to the circuit court for consideration of these claims, provided

that plaintiffs can establish jurisdiction under the laws of this

State.

Affirmed in part and reversed in part; cause remanded.

HARTMAN, P.J., and SCARIANO, J., concur.