# Petition for Writ of Certiorari — Saavedra v. Korean Air Lines Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 826

## Text

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9¥x~054 JUN 2 220
No. 99- QEMCE O65 ING GRERK

IN THE

Supreme Court of the United States

KIMBERLY SAAVEDRA, as Special Administrator of the Estate
of Jan Ingvar Roland Hjalmarsson, deceased, and OLGA
HJALMARSSON, Individually and as Parent and Natural Guardian
of Olivia Hjalmarsson, a minor, and Alexander Hjalmarsson, a
minor,

Petitioners,

v.
KOREAN AIR LINES CO., LTD.,
Respondent.

On PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DisTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

FRANK H. GRANITO, JR.
Counsel of Record
SPEISER, KRAUSE, NOLAN & GRANITO
Attorneys for Petitioners
140 East 45" Street, 34" Floor
New York, NY 10017
(212) 661-0011

ad
160299 @) Counsel Press LLC
(800) 274-3321 + (800) 359-6859

i
QUESTIONS PRESENTED

1. Did the drafters of the Warsaw Convention intend
the venue requirements of Article 28 to be amenable to
waiver after “the damage occurred” and/or to be extinguished
under the terms of Article 25 by reason of the defendant
carrier’s wilful misconduct?

2. Is the lower court’s interpretation of Article 28, to
the effect that non-compliance with its terms divests the court
of federal subject matter jurisdiction, incompatible with
“(t]he judicial Power of the United States ... vested... in
such inferior Courts as Congress may ... ordain and
establish” [Art. III U.S. Const. ]?

3. Where the defendant carrier raises the Warsaw
Convention as an affirmative defense, thereby placing at
issue the locus and termini of the decedent passenger’s
contract of carriage, does the burden rest with the carrier to
prove the treaty’s applicability and non-compliance with its
venue provisions by production of and reference to a true
copy of the passenger tickets defendant carrier contends
evince the decedent’s contract of carriage?

TABLE OF CONTENTS

Page
Cmpenn FINO s5.« skis co eeaukes careers, i
Wieee OF CAE... vc vcndsa yaa cee eee li
‘Felbbe GF Cited AMEROIMIES ooo iocksdncsswaskenes IV
Tae OE RI ov vee cak baie se X
NN 1
eee ee 1
Constitutional and Treaty Provisions Involved .... l
gg ee ee ee 2
Reason for Granting the Writ .................. 8
I. No Federal Precedent For The District
Coouit's IE so ocns dae son eekeeeee 8
II. The Judicial Power Of The United
States Cannot Be Abrogated Or Limited By
BOOM. ocecacivenaeeeus cekieeees eee 9
A. The Error Complained Of is One of
Erroneous Interpretation ............ 9

B. The Treaty Making Power of the
Executive is Limited by the Constitution
and the Separation of Powers

iii
Contents

C. The Pleadings Define Federal Subject
Matter Jurisdiction and the Burden of
Proof Assumed by Defendant Air
es Se es hos dave cee h es

ew O62 2S 6-689 2 Ct @ 4628 2.8 ee 8 £6 e &.6¢:-0 288 @

E. The Interpretation of Article 28 has
Evolved into Something Not Intended by
the Treaty’s Drafters ...............

F. Article 28 Limits Choice Not
oS eg

II. KAL’s Wilful Misconduct Deprives It Of The

eer rere rrr eres

IV. Where The Locus And/Or Termini Of The
Contract Of Carriage Are At Issue, The
Carrier Is Not Entitled To Relief Under
Article 28 Without Producing A Copy Of The
SEA ia hea die dene yes

ee was

Page

11

11

13

16

21

iv

TABLE OF CITED AUTHORITIES

Page
Cases:
Alexander v. Pan Am. World Airways, 757 F.2d 362
Cains Gs REE ho sab ns oxi oe kee eee 12, 22
Argentine Republic v. Amerada Hess Shipping Corp.,
me UT re ee 11
Block v. Compagnie Nationale Air France, 386 F.2d
323 (Sth Cir. 1967), cert. denied, 392 U.S. 905
te rr rs Pe pee ee ee ore bd, 19, Sa, a0
California v. LaRue, 409 U.S. 109, 93 S. Ct. 390
CRD FER 0 6 k6 bua uenecse eu ekeiuusseaVeenes 19
Cary v. Curtis, 44 U.S. 236, 11 L. Ed. 576 (1845)
PERSO eee ee Eee ee ee eae 11,19
Donkor v. British Airways Corp., 62 F. Supp. 2d 963
BR 8 ee ee Pp ys in aes 22
Eck v. United Arab Airlines, Inc., 360 F.2d 804 (2d
COP, FIR iis in -desaAe ea s 17
El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155
CEDOOD oooh xe ci ees ieetin besa sees 21

Fort Levenworth R.R. v. Lowe, 114 U.S. 525
CRODSD e0kin c0caa a Peb Sees es eee eee 10

Vv

Cited Authorities
Page
Gayda v. Lot Polish Airlines, 702 F.2d 424 (2d Cir.

36.66 KS OOO SCD ERS. OOD 8.06.04 Oo OO 6-8 O° O 2 6-010: 8

6 8 658 6::é © 6°66. 0 0.4.0 O24 € 84-6 8. 2 ot OO 8 Oe 3.4.0'9:-9 8 8

Grein v. Imperial Airways, Ltd. (1937), L KB 50-
CA, 2 All Eng Rep 1258, Unoff Rptd 1 CCH Avi
Cae CRE A Sebi 5 BE haa a AS 48 23

Grey v. American Airlines, Inc., 95 F. Supp. 756
(S.D.N.Y. 1950), aff'd, 227 F.2d 282 (2d Cir.
1955), cert. denied, 350 U.S. 989 (1956) ......12,22

Holmes v. Laird, 459 F.2d 1211 (D.C. Cir. 1972) . 10

In re Air Crash Near Peggy's Cove on September 2,
Pp gd 8 err ere eter eee 20

In re Air Disaster Near Cove Neck, New York on
January 25, 1990, 774 F. Supp. 732 (E.D.N.Y.

In re Aircrash in Bali, Indonesia on April 22, 1974,
sub nom Causey v. Pan American World Airways,
684 F.2d 1309 (9th Cir. 1982) ..............:. 11

In re Alleged Food Poisoning Incident, March 1984,
TPG ae Ss Se 800 6 REAR as 16

vi

Cited Authorities

Page
In re Korean Air Lines Disaster of September 1,
1983, 932 F.2d 1475 (D.C. Cir. 1991), cert.
denied, $02 U.S. FA CIGI) coc vaccccesussce 2
Insurance Corp. of Ireland v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 102 S. Ct. 2099
COUN cackvieboakdseeaeacuucesncuena 11, 18, 19
Kapar v. Kuwait Airways Corp., 269 U.S. App. D.C.
me pe Be ks | ere erro 16
Klos v. Polskie Linie Lotnicze (Lot Polish Airlines),
$33 F.38 166 (26 CO. 1997) «2s vvcrevevia’s 14, 16, 23
Manion v. Pan American World Airways, Inc.,
55 N.Y.2d 402, 449 N.Y.S.2d 693 (1982) ..... 23
Notarian v. Trans World Airlines, Inc., 244 F. Supp.
3 tf ee errr errr ery ee 12, 22
Petrire v. Spantax, S.A., 756 F.2d 263 (2d Cir. 1985)
cy 4 a ewh eee baie ORK Lae eee ae 16
P.T. Airfast Services, Indonesia v. Superior Court,
139 Cool. Ame. 36 TGS CESRS) 50 shits haa 12, 15
Reid v. Covert, 354 U.S. 1, 77 S. Ct. 1222 (1957) ... 10

Smith v. Canadian Pacific Airways, Ltd.,452 F.2d |
ror gM og) epee eee 12, 13, 14, 15, 16

vii

Cited Authorities
Page
Sopcak v. Northern Mountain Helicopter Serv.,
ee ek og * era eee 16
Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553 (1975)
PT eee Te TES re eer ere Poe ee rer 18, 19
Spencer v. Northwest Orient Airlines, Inc.,
201 F. Supp. 504 (S.D.N.Y. 1962) ........ 13, 14, 17
Swaminathan v. Swiss Air Transport Co., 962 F.2d
ee ee AE ok yn hAD do bak cede vaso o KO 16
Tolson v. Pan Am. World Airways, Inc., 399 F. Supp.
oe Ree aren, eres 12, 22
Weill v. State, 250 Ala. 328, 34 So. 2d 132 (Sup. Ct.
i OF Pee ee OO ESTEE IPED 18
Welsh v. United States, 844 F.2d 1239 (6th Cir. 1988)
ak heir Ck Rw Biba ich Sin bil ir tanh ca ee a 22
Wyler v. Korean Air Lines Co., 928 F.2d 1167, 289
SP Os Ms FO EOPMED 6 vc ce caknice case 14
Statutes:
EN sii ca cans vc a's hie & eee a |
SE ek ee eee ee oe 11
UM OE OU hc ie ee os 11

eae PO, ein bab ook becwes knw 11

viii

Cited Authorities
Page

United States Constitution:
Pe ee ie AS osc eeakns kc bocca cana. 3, 10
GEE Sk ck N cies bacs cens (bawecae eee i, 19
A Es © a 8a ee ke le 1,3
BR SL hoc Sees helenae eee l
BO HE ax csi cmd Seka eh ces ea eee 10
Rule:
Fed. R. Civ. Proc. Rule 12(oM{1) ............... : a ae
Treaties:
Warsaw Convention, formally titled “Convention for

the Unification of Certain Rules Relating to

International Transportation by Air,” 49 Stat. 3000

T.S. No. 876, 137 L.N.T.S. 11
DS ok oa a bok chek he seen eee cee eka 12, 22
PO Bios a Fes A a 23, 24
Pe. 5 5 6.k 6 oe Chadd sanceK oe i, 1, 9, 21, 22
PUGET oy 654 eebi in ddd n bee bidesee oka ieos passim
PE kk ESSE bho kGR Koc 1, 8, 10, 18

I ig on 5 bh akon kee we eee 21

ix

Cited Authorities
| Page
Other Authorities:

H. Drion, LIMITATIONS OF LIABILITY IN INTERNATIONAL
Air Law, M. Nijhoff, The Hague (1954) ...... 23

Lawrence B. Goldhirsch, THE WarsAw CONVENTION
ANNOTATED: A LEGAL HANDBOOK, Martinus Nijhoff
Publishers, Dordrecht (1988) ............. 12, 18, 24

James D. Maclntyre, Destination Jurisdiction Under
the Warsaw Convention, 60 J. Ain Law & Com.
PP ee pki bis oes cick oe keke Chee es 12.

McKenry, Judicial Jurisdiction Under the Warsaw
Convention, 29 J. Ain Law & Com. 205 ....... 16

MINUTES OF THE SECOND INTERNATIONAL CONFERENCE
ON PrivaTE Air Law, October 4-12, 1929 ...... 18

S.M. Speiser and C.F. Krause, AVIATION Tort Law,
Vol. I, Ch. 11:4, The Lawyers Co-Operative
Publishing Co., Rochester (1978) ............ 17

Committee on Aeronautics of the Association of the
Bar of the City of New York, Warsaw Convention
Revisited, RECORD OF THE ASSOCIATION, Vol. 54,
FO, ee ME, NOPOD voce cusicsccccecess 21

TABLE OF APPENDICES

Appendix A — Judgment Of The United States Court
Of Appeals For The District Of Columbia Circuit
Dated And Filed March 3, 2000 ..............

Appendix B — Memorandum Opinion And Order
Of The United States District Court For The
District Of Columbia Dated And Filed May 17,
SOE his 6s bcdannucdaceeesesbeeeebarensnes

Appendix C — Per Curiam Orders Of The United
States Court Of Appeals For The District Of
Columbia Circuit Denying Petition For Rehearing
Dated And Filed April 17,2000 .............

Appendix D — Constitutional And Treaty Provisions
PMGRUO osc cn ck centenekescvahs uate vieess

Appendix E — Nigeria Airways Tickets .........
Appendix F — Transcap Document .............

Appendix G — Grein v. Imperial Airways, Ltd.,
Court Of Appeal, England, July 13, 1936 ......

Page

la

3a

|

Petitioners Kimberly Saavedra as nominal plaintiff and
Olga Hjalmarsson as surviving wife of decedent Jan
Hjalmarsson respectfully petition this Court for writ of
certiorari to review the judgment of the United States Court
of Appeals for the District of Columbia Circuit entered in
this proceeding on March 3, 2000.

OPINIONS BELOW

The unreported opinion of the Court of Appeals is
reproduced in the Appendix filed herewith (“App.”) at
App. A, la. That opinion affirmed the decision of the District
Court of the District of Columbia dated May 17, 1999, which
is also unreported and is reproduced at App. B, 3a. The order
of the Court of Appeals denying rehearing is reproduced at
App. C, 12a. =

STATEMENT OF JURISDICTION

This petition for a writ of certiorari was filed within
ninety (90) days of entry of the order of the Court of Appeals
dated April 17, 2000, denying Petitioner’s timely filed
Petition for Rehearing. This Court has jurisdiction to review
the judgment of the Court of Appeals by writ of certiorari
pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND TREATY
PROVISIONS INVOLVED

U.S. Constitution, Article III, Sections 1 and 2 (App. D, 16a)

Warsaw Convention, formally titled “Convention for the
Unification of Certain Rules Relating to International
Transportation by Air,” 49 Stat. 3000 T.S. No. 876, 137
L.N.T.S. 11, Articles 25, 28, 32 (App. D, 16a-17a)

2

STATEMENT OF THE CASE

Petitioners’ case is one of the two last remaining
passenger death actions arising out of the Korean Air Lines
Flight 007 air disaster of September 1, 1983 which took the
lives of the 269 persons aboard the aircraft. More than
12 years after joinder of issue and more than 6 years after it
was adjudged guilty of wilful misconduct [see Jn re Korean
Air Lines Disaster of September 1, 1983, 932 F.2d 1475
(D.C. Cir. 1991), cert. denied, 502 U.S. 994 (1991)],
defendant Korean Air Lines Co., Ltd. (KAL) moved pursuant
to Fed. R. Civ. Proc. Rule 12(b){1) to dismiss the
Hjalmarsson Complaint upon the grounds the action against
KAL lacked a treaty nexus with the United States within the
meaning and requirement of Article 28 of the Warsaw
Convention. This because KAL is based and domiciled in
South Korea and because Nigeria was said to be decedent’s
final destination and the place where decedent entered into
the contract of carriage. '

Following an evidentiary hearing held before it on
January 7, 1999, the district court granted the motion in an
opinion order dated May 17, 1999 (App. B, 3a). In sum, the
district court concluded petitioners failed to overcome the
presumption that decedent’s transportation aboard KAL
Flight 007 was subject to a contract of carriage allegedly
entered into in Nigeria with British Caledonian Airways
(BCA) for round the world travel from and return to Nigeria. —

1. In pertinent part, Article 28 requires that plaintiff commence
suit “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 of the final
destination.”

3

The judgment of the district court was summarily affirmed
on March 3, 2000 by the United States Court of Appeals for
the D.C. Circuit (App. A, la) and, on April 17, 2000, petition
for rehearing was denied (App. C, 12a).

Petitioners contend the district court erred in equating
the venue requirements of Article 28 (commonly called treaty
jurisdiction) with the subject matter jurisdiction vested in
district courts by Congress pursuant to its enumerated powers
[U.S. Const. Art. I, Sec. 8, C1. 9] and existing by virtue of
the judicial powers of the United States [U.S. Const. Art.
III, Sec. 1]. This error resulted in the district court unfairly
assigning the burden of proof to the party opposing the
motion and wrongly treating an affirmative defense as matter
that could not be waived or abandoned by any act or inaction
on the part of the moving party. This despite treaty language
(Art. 32) and industry practice to the contrary and despite
KAL’s inordinate and unexcused delay in seeking summary
relief. Further, petitioners contend KAL’s wilful misconduct
entitles them to the application of local law without recourse
to the provisions of the Warsaw Convention limiting or
excluding the carrier’s liability. Lastly, petitioners contend
the locus and termini of decedent’s contract of carriage
should not have been resolved in KAL’s favor without it
producing a copy of decedent’s tickets.

Decedent Hjalmarsson was a 38 year old Swedish
national with business interests in Sweden, Nigeria and the
United States, among other countries. When not abroad or
engaged in business travel, Mr. Hjalmarsson resided with
his American wife and children at their family home in
Queens, New York. On August 3, 1983, decedent journeyed
to New York from his place of business in Nigeria in order
to be present for his son’s birth, due the next day. Except for

4

a business trip to Tampa, Florida, he remained with his family
during the month of August until the night of his departure
from Kennedy Airport aboard KAL Flight 007. As observed
by the district court, “[e]xactly how Jan Hjalmarsson came
to be aboard Flight KE007 will never be known” (App. B,
9a). This because KAL was unable to produce a copy of a
ticket coupon applicable to passenger Hjalmarsson’s
transportation aboard Flight 007.

During the course of consolidated discovery on the
matter of the KAL 007 passenger tickets, KAL announced it
was unable to produce copies of the flight coupons collected
from the 007 passengers at the time of boarding because those
coupons were carried aboard the aircraft for transmittal to
KAL’s Revenue Accounting Department in Seoul. Thus, the
coupons normally used as evidence of the passengers’
individual contracts of carriage were lost together with the
aircraft and its occupants. In place of the missing flight
coupons, KAL produced copies of the audit coupons in most
of the passenger actions.” Although no KAL audit or agent
coupon was found for passenger Hjalmarsson, inquiry by
KAL disclosed that Nigeria Airways had issued tickets to
Mr. Hjalmarsson for a direct flight from Nigeria to New York
on August 3, 1983 with open flights thereafter within the
United States and return to Nigeria via Stockholm and
Amsterdam. Upon obtaining copies of the Nigeria Airways
tickets and noting the absence of any Far East segments
(App. E, 18a), KAL’s counsel made an informal request to
petitioners’ counsel for whatever might be available

2. KAL ticket booklets have four basic coupons: The flight
coupon is collected from the passenger at the time of boarding, the
audit and agent coupons are detached at time of sale and retained
by the carrier for accounting and record keeping purposes and the
passenger coupon serves as the passenger’s receipt.

5

concerning decedent’s transportation. By transmittal note
dated January 27, 1984, a coded writing written on the
letterhead of Transcap Travel Bureaux Nigeria was
forwarded to defense counsel without any representation as
to the writing’s purpose, authenticity or reliability. Nothing
further was heard from KAL or its counsel about the Transcap
writing until a copy of it appeared 12 years later as an exhibit
to KAL’s Rule 12 motion (App. F, 19a). With the passage
of time, the attorney who produced the Transcap writing no
longer recalled from whom or how it was acquired and
nothing in the office file served to refresh counsel’s
recollection. During the evidentiary hearing held by the
district court on January 7, 1999, Mrs. Hjalmarsson
reaffirmed her deposition testimony to the effect that she
had no knowledge of the exhibit’s origin, purpose or content
and never saw the Transcap writing until a copy of it was
shown to her by defense counsel. °

KAL’s Rule 12(b)(1) motion was supported by a
conclusory affidavit executed by KAL employee Young Bae
Kim who conceded he had no first or second hand knowledge
of the Transcap writing but nevertheless interpreted it to
indicate that open tickets on British Caledonian Airways
(BCA) ticketstock were issued to Mr. Hjalmarsson in Nigeria
on August 2, 1983 for round the world travel from and return

3. The Transcap writing’s original purpose is not known.
Although it has been characterized as an itinerary, an invoice and a
receipt, it is none of these. It is not an itinerary in the usual sense
that travel agencies furnish itineraries because it is coded. For
example, the issuing carrier is said to be identified by the numerals
“121”. The Transcap writing is not an invoice because it indicates
payment in cash. Nor is it a receipt since the ticket booklet given to
the passenger at the time of sale contains a coupon that serves as
the passenger’s receipt.

6

to Nigeria with stops in London, New York, Los Angeles
and Seoul, among other places. Although it was conceded
the Transcap exhibit did not indicate flight on KAL Flight
007, Mr. Kim theorized that tickets reflected by the Transcap
writing could have been used to board Flight 007 if decedent
first obtained an endorsed approval of the change from either

-BCA as the issuing carrier or Trans World Airways (TWA),
the carrier on the flight between New York and Los Angeles
that would have been substituted. KAL’s inability to locate
passenger Hjalmarsson’s audit or agent coupon led Mr. Kim
to conclude decedent boarded Flight 007 without new tickets
being issued and that decedent, instead, used BCA tickets
that Mr. Kim assumed were modified by KAL and endorsed
by either BCA or TWA.‘

The district court ruled in advance of the evidentiary
hearing that petitioners bore the burden of proving
compliance with the terms of Article 28. In effect, this
required that petitioners prove the ticket transaction resulting
in Mr. Hjalmarsson’s transportation aboard Flight 007
created a treaty nexus with the United States, either by
novation or by the purchase or issuance of new tickets.

4. There is no record evidence that BCA tickets were actually
used by decedent, modified by KAL or ever endorsed by either BCA
or TWA. Any use of BCA tickets to board Flight 007 would have
been an initial use of those tickets because decedent used his Nigeria
Airways tickets to travel to New York. Moreover, under the
circumstances hypothesized by Mr. Kim, KAL was required by its
and the industry’s mandatory ticketing procedures to issue new
tickets. As conceded by Mr. Kim, the absence of an audit coupon
for passenger Hjalmarsson could be explained by loss or its
transmittal to Seoul on Flight 007. Testimony by another KAL
employee indicates the agent coupons for Flight 007 were routinely
discarded after a period of time.

7

Petitioners objected to the Transcap writing as
inadmissible hearsay and argued that the party relying upon
the Warsaw Convention is obliged to prove the treaty’s
applicability by producing a true copy of the applicable
passenger tickets. Petitioners also presented evidence to the
effect that KAL’s ticket scenario was not only unlikely, but
would have required issuance of new tickets under the
mandatory ticketing procedures of KAL and the airline
industry.

Relying upon the Transcap writing, as interpreted by
KAL, the district court concluded decedent’s transportation
aboard Flight 007 was subject to a contract of carriage entered
into in Nigeria with BCA for round the world travel from
and return to Nigeria and that the transaction conducted in
New York between KAL and decedent was a mere
modification that did not create a treaty nexus with the United
States.

Although the Transcap writing was the evident linchpin
to KAL’s Rule 12 motion, being described as “. . . the only
and best evidence available of decedent’s contract of
transportation . . .”° and although the district court resolved
every contested issue of fact in favor of KAL on the basis of
ine Transcap writing, the Court of Appeals, in summarily
affirming the district court, nevertheless concluded the
outcome would have been the same if it were assumed the
Transcap writing was inadmissible and that KAL bore the
burden of proving the Treaty’s applicability.

5. Despite its characterization by KAL counsel, the Transcap
writing is not evidence of decedent’s contract of carriage. It is, at
most, evidence of the issuance of evidence of a contract (ticket)
that, on its face, is not relevant to transportation aboard Flight 007.

8

REASON FOR GRANTING THE WRIT

The action for passenger Hjalmarsson’s death was
dismissed because the district court: (1) erroneously equated
the treaty’s venue requirements with Article III subject matter
jurisdiction; and (2) relied upon that misinterpretation to
resolve “jurisdictional” facts in favor of a carrier that, in
seeking summary relief six years after it was adjudged guilty
of wilful misconduct, failed to produce the tickets it contends
evinced decedent’s contract of carriage. Rectification of a
bad result does not itself warrant certiorari. However, this
Court’s review is necessary and appropriate because the
result below perpetuates a gross misinterpretation of a treaty
of the United States, which, if left uncorrected, will adversely
impact on the rights of passengers traveling in international
air transportation.

NO FEDERAL PRECEDENT FOR THE
DISTRICT COURT’S RULINGS

Research fails to disclose any federal precedent for the
following rulings made by the district court in this case:

1. The holding that an air carrier’s affirmative (treaty)
defense under Article 28 cannot be waived despite the
carrier’s unexcused delay of 12 years in seeking summary
relief, the language of the treaty permitting such waiver
(Art. 32) and the practice of the industry to the contrary;

2. The shifting of the burden of proof from the proponent
of the affirmative treaty defense to the party opposing the
motion when the proponent is guilty of inexcusable delay

9

and fails to produce a copy of the passenger ticket it contends
evinces the contract of carriage;

3. The granting of the carrier’s motion to dismiss the
Complaint six years after movant was adjudged guilty of
wilful misconduct within the meaning of Article 25;

4. Resolving “jurisdictional facts” bearing upon the
applicability of the Warsaw Convention and the situs and
termini of the contract of carriage on the basis of inadmissible
evidence offered and received in lieu of a copy of the
passenger tickets where the failure to produce the tickets
was attributable at least in part to movant’s wilful misconduct
in the operation of the aircraft; _

5. Accepting movant’s version of the ticket transaction
conducted in New York without consideration of or reference
to mandatory ticketing procedures of the industry to the
contrary.

Il.
THE JUDICIAL POWER OF THE UNITED
STATES CANNOT BE ABROGATED OR
LIMITED BY TREATY

A. The Error Complained Of is One of Erroneous
Interpretation

The essential error of the district court was interpreting
the venue requirements of Article 28 of the Warsaw
Convention as limiting the judicial power of the United
States. By equating “treaty jurisdiction” with the subject
matter jurisdiction vested in the Judiciary under. Article III

10

of the United States Constitution, the district court wrongly
attributed to the former the unique features of the latter with
the result that the burden of proof was misplaced and a
defense that may be waived under the Treaty’s terms
(Art. 32) was deemed to be incapable of waiver.

B. The Treaty Making Power of the Executive is Limited
by the Constitution and the Separation of Powers
Doctrine

Article 28 does not and, consistent with the separation
of powers doctrine, cannot be correctly interpreted to divest
the Judiciary of the powers existing by virtue of Article III
of the U.S. Constitution and vested in the district courts
pursuant to the enumerated powers of Congress [U.S. Const.
Art. I, Sec. 8, C1. 9].

The treaty power, as expressed in the
Constitution, is in terms unlimited except by those
restraints which are found in that instrument

- against the action of the government itself and of
the States. It would not be contended that it
extends so far as to authorize what the
Constitution forbids .. .

Geofroy v. Riggs, 133 U.S. 258, 267, 10 S. Ct. 295 (1890),
citing Fort Levenworth R.R. v. Lowe, 114 U.S. 525,
541(1885) . “To be sure, ‘no agreement with a foreign nation
can confer power on ... any ... branch of Government,
which is free from the restraint of the Constitution,’ ” Holmes
v. Laird, 459 F.2d 1211, 1217 (D.C. Cir. 1972), quoting Reid
v. Covert, 354 U.S. 1, 16, 77 S. Ct. 1222 (1957). Although
“Treaties made. . . [are] the supreme Law of the Land” [Art.
VI, U.S. Const.], their provisions effecting domestic law are

11

“subject to the same substantive limitations as any other
legislation ... [Otherwise] constitutional limitation on
governmental power could be circumvented by means of a
treaty although the same objective could not be accomplished
through legislation”, Jn re Aircrash in Bali, Indonesia on
April 22, 1974, sub nom Causey v. Pan American World
Airways, 684 F.2d 1309 (9th Cir. 1982). “[T]he subject matter
jurisdiction of the lower federal courts is determined by
Congress, ‘in the exact degrees and character which to
Congress may seem proper for the public good’ ”, Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,
433 (1989), citing Cary v. Curtis, 44 U.S. 236, 11 L. Ed.
576 (1845) and Insurance Corp. of Ireland v. Compagnie
des Bauxites de Guinee, 456 U.S. 694, 102 S. Ct. 2099
(1982).

c. The Pleadings Define Federal Subject Matter
Jurisdiction and the Burden of Proof Assumed by
Defendant Air Carrier

As alleged in petitioners’ Compiaint, federal subject
matter jurisdiction exists by virtue of the diverse citizenship
of the parties within the meaning of 28 U.S.C. § 1332 and
by reason of the applicability of the Death on the High Seas
Act (DOHSA), 46 U.S.C. § 764, et seq., and the provisions
of 28 U.S.C. § 1331. In its Answer to the Complaint, KAL
raised the Warsaw Convention in a series of separately
alleged affirmative defenses, among them being the

~provisions of Article 28.

D. “Treaty Jurisdiction” Distinguished

Four levels of jurisdiction are said to come into play in
a case subject to the Warsaw Convention. Lawrence B.

12

Goldhirsch, THE WARSAW CONVENTION ANNOTATED: A LEGAL
HANDBOOK, Martinus Nijhoff Publishers, Dordrecht (1988),
pp. 141-143. Preliminarily, the party pleading the Warsaw
Convention must show the treaty applies under its terms,
Alexander v. Pan Am. World Airways, 757 F.2d 362
(D.C. Cir. 1985); and that is normally done by recourse to
the passenger tickets as evidence of the contract of carriage,
Tolson v. Pan Am. World Airways, Inc., 399 F. Supp. 335
(S.D. Tex. 1975); see also Notarian v. Trans World Airlines,
Inc., 244 F. Supp. 874 (W.D. Pa. 1965). The treaty’s
proponent must establish that the contract between the parties
contemplated “international transportation” within the
meaning and definition of Article 1(2) of the Convention,
Biock v. Compagnie Nationale Air France, 386 F.2d 323,
330-31 (5th Cir. 1967), cert. denied, 392 U.S. 905 (1968);
Grey v. American Airlines, Inc., 95 F. Supp. 756 (S.D.N.Y.
1950), aff'd, 227 F.2d 282 (2d Cir. 1955), cert. denied, 350
U.S. 989 (1956). Jurisdiction at this threshold level is referred
to as “Convention jurisdiction” in contradistinction to “treaty
jurisdiction” which pertains to the venue requirements of
Article 28, James D. MacIntyre, Destination Jurisdiction
Under the Warsaw Convention, 60 J. Ain LAw & Com. 657
(1995), at 670 n.59. Overlaying convention and treaty
jurisdiction are the due process requirements of in personam
jurisdiction and the statutory and/or the constitutional limits
of the court’s subject matter jurisdiction, P.7. Airfast
Services, Indonesia v. Superior Court, 139 Cal. App. 3d 162,
167 (1983), citing Smith v. Canadian Pacific Airways, Ltd.,
452 F.2d 798 (2d Cir. 1971).

13

E. The Interpretation of Article 28 has Evolved into
Something Not Intended by the Treaty’s Drafters

The general acceptance by American courts of the
jurisdictional nature of Article 28 may be traced to the Second
Circuit’s opinion in Smith v. Canadian Pacific Airways, Ltd.,
452 F.2d 798. Until 1971, our courts were evenly divided in
characterizing Article 28 as pertaining to either jurisdiction or
venue. See, in this regard, the discussion of cases in Smith y.
Canadian Pacific Airways, Ltd., 452 F.2d at 800 n.5;
particularly, Spencer v. Northwest Orient Airlines, Inc., 201 F.
Supp. 504 (S.D.N.Y. 1962). Uncertainty about the nature of.

Article 28 was recognized by C.J. Oakes in the Smith opinion,
wherein it was stated:

The language of the Article itself does not refer
to jurisdiction, international or domestic, or to venue.
Thus we must look outside the Article to ascertain
the intention of the drafters. Of little help to us are
the unofficial and contradictory labels put on Article
28 in various reprints of the Convention.

. -. ©@.®

Discussions by the delegates who drafted the
Warsaw Convention as to the nature of Article 28
do not assist us, since there is no indication that the
use of the word “jurisdiction” was made in the
technical sense with which we are ordinarily
concerned. Nowhere in the discussions does a
concept so local as venue appear, and we have no
indication that the drafters of Article 28 were
concerned about, or indeed familiar with, the

American court system and its conceptions of
“jurisdiction” and “venue”.

452 F.2d at 800-01.

14

As observed by D.J. Van Pelt Bryan in Spencer:

I cannot conceive that it was the design or
effect of Article 28, drafted in contemplation of
adherence by many nations with widely divergent
systems of jurisprudence and court structure, to
deal with questions of technical subject matter
jurisdiction within the framework of the federal
judicial system of the United States or impinge
upon the jurisdiction conferred by Congress upon
the federal courts.

201 F. Supp. at 507. Nevertheless, in the three decades since
the Second Circuit concluded Article 28 was “jurisdictional
in nature”, the treaty’s venue provision has undergone an
evolution in nomenclature. Characterized originally as
having to do with “treaty jurisdiction”, Smith, 452 F.2d at
800, Article 28 evolved into something that “speaks to
subject matter jurisdiction”, Gayda v. Lot Folish Airlines,
702 F.2d 424, 425 (2d Cir. 1983), and eventually into a
provision that not only governs subject matter jurisdiction,
Wyler v. Korean Air Lines Co., 928 F.2d 1167, 1174-75,
289 U.S. App. D.C. 75 (1991), but forms the basis of subject
matter jurisdiction, Klos v. Polskie Linie Lotnicze (Lot Polish
Airlines), 133 F.3d 164, 167 (2d Cir. 1997). The drift towards
equating “treaty jurisdiction” with federal subject matter
jurisdiction can be seen by contrasting the following
comment about the nature of Article 28. The first was made
by a California court in 1983. The second by a United States
District Court eight years later.

15

By the California Court of Appeals, Third District:

There has been a split of authority in the
meaning of Article 28. The federal courts have held
that the convention provides only “treaty
jurisdiction” and not subject matter jurisdiction or
in personam jurisdiction. According to this view the
initial inquiry is whether one of the four situs
requirements of Article 28, subdivision (1) has been
met. If so then the United States may be a proper
country in which to bring the action. Such a finding
however, does not mean that a particular court within
the country may hear the action. Questions of subject
matter jurisdiction and personal jurisdiction over the
defendant must still be resolved by reference to the
domestic laws of the jurisdiction of the particular
court.

P.T. Airfast Services, Indonesia v. Superior Court, 139 Cal.
App. 3d at 167, citing Smith v. Canadian Pacific Airways, Ltd.,
452 F.2d at 800. v

fa By the United States District Court for the Eastern District
of New York:

This provision [Art. 28] is jurisdictional in
nature and the points of jurisdiction it specifies are
national in scope [citing Smith, supra]. If in any
given action, the United States is not one of the fora
specified by Article 28, the federal Courts lack treaty
jurisdiction under the Convention and therefore
federal subject matter jurisdiction over the
controversy.

In re Air Disaster Near Cove Neck, New York on January 25,
1990, 774 F. Supp. 732, 733 (E.D.N.Y. 1991) (emphasis added),
citing Gayda v. Lot Polish Airlines, 702 F.2d at 425.

16

Six years after the district court’s opinion in the Avianca
air disaster litigation, the notion that non-compliance with
Article 28 divests the court of “federal subject matter
jurisdiction” was expressed by the Second Circuit’s panel
in Klos v. Lot Polish Airlines, wherein it was said of Article
28: “If the action is not brought in one of these four
jurisdictions, the court does not have subject matter
jurisdiction over it”, 133 F.3d at 167, citing In re Alleged
Food Poisoning Incident, March 1984, 770 F.2d 3, 5 n.2
(2d Cir. 1985).

F. Article 28 Limits Choice Not Jurisdiction

Petitioners take no issue with the effect to be given
Article 28 when non-compliance with its mandate is timely
raised and proven on the basis of admissible evidence offered
and received in a manner consistent with due process. Under
those circumstances (not present in this case), petitioners
accept (for the purposes of this petition) that Article 28
“*.. must be considered as absolute and mandatory ... in
the jurisdictional sense ...”, Smith v. Canadian Pacific
Airways, Ltd., 452 F.2d at 801, quoting McKenry, Judicial
Jurisdiction Under the Warsaw Convention, 29 J. Air LAw
& Com. 205, 226, n.7; and see, in addition to Courts of Appeal
cases cited previously, Sopcak v. Northern Mountain
Helicopter Serv., 52 F.3d 817 (9® Cir. 1995); Swaminathan
v. Swiss Air Transport Co., 962 F.2d 387 (5® Cir. 1992);
Kapar v. Kuwait Airways Corp., 269 U.S. App. D.C. 355,
845 F.2d 1100 (1988); Petrire v. Spantax, S.A.,-756 F.2d
263 (2d Cir. 1985). But its effect, however characterized in
terms jurisdictional, does not transform Article 28 into
something not intended by the Treaty’s drafters and forbidden
by the Constitution.

17

1. The Drafters’ Original Intent: As is evident from its
text, Article 28 is addressed to the limits on the choice a
plaintiff may make in selecting a venue for the action against
the defendant carrier. It is not addressed to the jurisdiction
of the courts of the “High Contracting Parties”. The limitation
is one of venue rather than fora because Article 28 does not
delineate any specific court or courts other than to require
that suit be commenced in a court “in the territory of one of
the High Contracting Parties”. Thus, the right of election is
national in scope, Eck v. United Arab Airlines, Inc., 360 F.2d
804 (2d Cir. 1966) with “[q]juestions of procedure [to] be
governed by the law of the Court to which the case is
submitted” [Art. 28(2)]. Since the United States did not
participate in the work done by the interim Comite
International Technique d’Experts Juridique Aeriens
(CITEJA) and only observed but did not participate in the
proceedings resulting in the drafting and signing of the
Warsaw Convention in 1929, S.M. Speiser and C.F. Krause,
AVIATION TorT Law, Vol. I, Ch. 11:4, p. 638, The Lawyers
Co-Operative Publishing Co., Rochester (1978), it cannot
be said “.. . it was the design or effect of Article 28 .. . to
deal with questions of technical subject matter jurisdiction
within the framework of the federal judicial system of the
United States or impinge upon the jurisdiction conferred by
Congress upon the federal courts”, Spencer v. Northwest
Orient Airlines, Inc., 201 F. Supp. at 507.

The purpose of Article 28, as originally intended and as
disclosed by the remarks of the delegates to the Warsaw
Conference, was to adjust the conflicting interests of
contracting parties. In the view of British Delegate Orme
Clarke, the intent of Article 28 was to protect the carrier
from the “inconvenience” and “difficulty” of defending itself
in “far-off lands” where the injury or damage may have

18

occurred, pp. 189-190 of the MINUTES OF THE SECOND
INTERNATIONAL CONFERENCE ON PRIVATE AIR Law, October 4-
12, 1929, Warsaw, Poland. The carrier’s interest in not
having to defend itself in “far-off lands” was counter-
balanced by giving the passenger the option to bring suit
where the contract was made or at the place of the expressed
destination in addition to the place or places of the carrier’s
domicile and principal place of business.

Another indication that Article 28 was not aimed at
divesting courts of jurisdiction is the evident import of
Article 32 which, in pertinent part, states:

Any clause contained in the contract and all
special agreements entered into before the
damage occurred by which the parties purport
to infringe the rules laid down by this convention,
whether by deciding the law to be applied, or
altering the rules as to jurisdiction, shall be null
and void ...

(emphasis added).

“This article impliedly permits the parties to agree to
anything, including applicable law and jurisdiction after
damage occurs. . .”, Goldhirsch, supra, at p. 173. In keeping
with the maxim expressio unis est exclusio alterius
(expressing one thing excludes the other), “[a] statute often
speaks as plainly by inference as in any other manner .. .”
Weill v. State, 250 Ala. 328, 334, 34 So. 2d 132 (Sup. Ct.
1948). Obviously, since federal subject matter jurisdiction
cannot be supplied by agreement of the parties, Jnsurance
Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee,
456 U.S. 702, 102 S. Ct. 2099; Sosna v. Iowa, 419 U.S. 393,

19

95 S. Ct. 553 (1975); California v. LaRue, 409 U.S. 109, 93
S. Ct. 390 (1972), the quasi-jurisdictional nature of Article
28 is substantially different from and cannot be equated with
subject matter jurisdiction existing under Article III of the
U.S. Constitution. The two are substantially different because
they serve different purposes. Federal subject matter
jurisdiction “represents a restriction on judicial power .. .
as a matter of sovereignty”, Insurance Corp. of Ireland v.
Compagnie des Bauxites de Guinee, 102 S. Ct. at 2104. By
contrast, Article 28 represents a venue restriction, one arising
out of a contract between private parties that does not purport
to divest any court of jurisdiction but merely conditions the
plaintiff's right to invoke the jurisdiction of courts “in the
territories of the High Contracting Parties”. As such, Article
28 is an affirmative defense that serves a purpose wholly
different from “a matter of sovereignty” in the limited, highly
technical and unique sense of Article III subject matter
jurisdiction. The uniqueness of Article III jurisdiction is
traceable to and inseparable from the fact that, consistent
with our nation’s formation as a republic, “[t]he courts of
the United States are all limited in their nature and
constitution, and have not the powers inherent in courts
existing by prescription or by common law”, Cary v. Curtis,
44 U.S. 236, 245, 11 L. Ed. 576, 3 How. 236 (1845).

2. Industry Custom and Practice: That “treaty
jurisdiction” may be conferred by agreement of the parties
and/or by waiver on the part of the carrier is an accepted
practice in the industry. Article 28 is seen as a condition of
contract that exists within the context of a private law treaty,
Block v. Compagnie Nationale Air France, 386 F.2d at 330-
31. For most of its 70 year history, the Warsaw Convention
has served the airline industry mainly, if not exclusively as
an affirmative defense; one that may, but need not be raised

20 .

and, if raised, may be waived or abandoned. Thus, for
example, where the defendant air carrier has reached a
funding agreement with its codefendant, as occurred recently
in the cases arising out of the crash of Swissair Flight 111,
Article 28 venue requirements may and will be waived as
part of the agreement between defendants and their insurers.°

The notion that Article 28 does not constitute subject
matter jurisdiction is shared by the U.S. Department of
Transportation (DOT) which urged the airline industry to
voluntarily adopt the so called “fifth jurisdiction” by adding
the passenger’s domicile to the plaintiff's choice of venue.
In approving the 1996 IATA Intercarrier Agreement on
Passenger Liability waiving monetary limits, the DOT
expressed the following reservation:

We are disappointed in the absence of a
consensus for carrier submission to the fifth
jurisdiction . . . [I]nclusion of the fifth jurisdiction
would have gone a long way towards meeting the
Department’s guidelines to the extent that
protection of U.S. citizens and permanent
residents would apply wherever the ticket was
purchased, or wherever the flight took place.

[DOT Order 96-11-6 WL 656334 (DOT 11/12/96), quoted
in the Report of the Committee on Aeronautics of the

6. In re Air Crash Near Peggy’s Cove on September 2, 1998 (E.D.
Pa. MDL 1269). At the initial organization meeting held before C.J.
James T. Giles of the Eastern District of Pennsylvania on August 5,
1999, Desmond T. Barry, Esq., as attorney for Swissair, stated, at p. 26
of the hearing transcript: “We are going to waive the Article 28 defense
in respect of American citizen plaintiffs.” Mr. Barry and his firm,
Condon & Forsyth, represented KAL in the consolidated cases arising
out of the 007 disaster during the period between 1983-1992.

21

Association of the Bar of the City of New York, titled
Warsaw Convention Revisited, RECORD OF THE ASSOCIATION,
Vol. 54, No. 3, 319, 326-27 (January, 1999).]’ That the fifth
jurisdiction was under consideration and, indeed, urged upon
the airline industry by the DOT is a clear indication that
Article 28 does not relate to subject matter jurisdiction in
the strict constitutional sense but is, instead, a treaty defense
that may be waived.

Il.

KAL’S WILFUL MISCONDUCT DEPRIVES IT
OF THE TREATY’S PROTECTION

In pertinent part, Article 25 of the Warsaw Convention
states: “The carrier shall not be entitled to avail himself of
the provisions of this convention which exclude or limit his
liability, if the damage is caused by his wilful
misconduct. . . .” The meaning and scope of Article 25 was
left unanswered by this Court in its most recent decision
dealing with the Warsaw Convention, £/ Al Israel Airlines,
Ltd. v. Tseng, 525 U.S. 155 (1999). This because the issue
was not preserved by respondent Tseng. /d. at 167 n.10.
However, as observed by Mr. Justice Stevens in his
dissenting opinion, id. at 178:

The Convention, however, does not preempt
local law in cases arising out of “wilful

7. The 1996 IATA Intercarrier Agreement will be supplanted
when the Montreal Convention is ratified by 32 nations. The
Montreal Convention was signed by 52 countries on May 28, 1999.
When ratified, it will replace the Warsaw Convention, do away with
monetary limits, add the fifth jurisdiction and provide for strict
carrier liability for passenger death or injury up to an amount
equivalent to approximately $135,000 U.S. currency.

22

misconduct”. Article 25 expressly provides that
a carrier shall not be entitled to avail itself of the
provisions of the Convention that “exclude or
limit” its liability if its misconduct is willful.

The foregoing, it is respectfully submitted, accurately states
the intended effect of Article 25 on all treaty defenses in
Chapter III, including Article 28. Lower court rulings to the
contrary are based on the erroneous belief “treaty
jurisdiction” and Article III subject matter jurisdiction are
the same.

IV.

WHERE THE LOCUS AND/OR TERMINI OF THE

CONTRACT OF CARRIAGE ARE AT ISSUE, THE

CARRIER IS NOT ENTITLED TO RELIEF UNDER

ARTICLE 28 WITHOUT PRODUCING A COPY OF
THE PASSENGER’S TICKETS

The party relying upon the provisions of the Warsaw
Convention bears the burden of proving that the treaty applies
to the transportation in question, Alexander v. Pan Am. World
Airways, Inc., 757 F.2d 362; Donkor v. British Airways
Corp., 62 F. Supp. 2d 963 (E.D.N.Y. 1999); Tolson v. Pan
American World Airways, Inc., 399 F. Supp. 335; Notarian
v. Trans World Airlines, Inc., 244 F. Supp. 874. This is
particularly true when the treaty is raised as an affirmative
defense because “[t]he general rule is that the burden of proof
lies where the pleadings place it. . . .”, Welsh v. United States,
844 F.2d 1239, 1245 (6th Cir. 1988). Since the treaty’s
applicability depends upon the termini in “the contract made
by the parties” [Art. 1(2)], Grey v. American Airlines,
95 F. Supp. 756; Block v. Compagnie Nationale Air France,

23

386 F.2d 232; Grein v. Imperial Airways, Ltd. (1937), L KB
50-CA (1936), 2 All Eng Rep 1258, at 1288; Unoff Rptd 1
CCH Avi 622, the issue must be resolved on an individual
rather than a collective basis. The fact that the Treaty
governed the transportation of most or all of the other 007
passengers does not establish its applicability to passenger
Hjalmarsson’s tiansportation “... since the points of
departure and destination must be determined by the
‘stipulations’ made by the parties”, H. Drion, LimiTaTIoNns
OF LIABILITY IN INTERNATIONAL AIR Law, M. Nijhoff, The
Hague (1954), at p. 54.

Where there is an issue of fact as to the locus and/or
termini of the contract of carriage, the tickets are controlling
over the unevinced intent of the parties, Klos v. Lot Polish
Airlines, 133 F.3d 164. When the treaty’s terms are raised
affirmatively, as was done in this case by KAL, the burden
rests with the defendant carrier to establish not only the
treaty’s applicability but also that tickets were delivered in
accordance with the requirements of Article 3(1).

This because, in air disaster litigation:

The airline is in the best position to show delivery,
having access to its own records and copies of
tickets sold and actually used for passenger
travel ... The passenger, in contrast, may have
been severely injured or killed in the accident.
As a practical matter, the passenger’s burden may
be nearly insurmountable. . . .

Manion v. Pan American World Airways, Inc., 55 N.Y.2d
402, 449 N.Y.S.2d 693, 696-97 (1982) (emphasis added).

24

There is no evidence in this case to indicate the tickets,
if any, delivered to and/or used by decedent to board Flight
007 met the requirements of Article 3(1) which, among other
particulars, requires “[a] statement that the transportation is
subject to the rules relating to liability established by [the]
convention” [Art. 3(1)(e)]. As one writer observed:

Normally, after.an air crash, the passenger no
longer has possession of his ticket. The carrier,
having the burden of proving the existence of the
contract as well as delivery of the ticket will
usually resort to producing the coupon that it
pulled just prior to that leg of the flight.

Goldhirsch, supra, at p. 29. It is not known what tickets
decedent used to board Flight 007 because KAL adhered to
the unusual, if not irregular business practice of transmitting
the passenger flight coupons to Seoul on the very same flight
covered by the coupons. Thus, as a consequence of KAL’s
wilful misconduct in the operation of Flight 007, the evidence
of decedent’s contract of carriage was lost together with the
aircraft and its occupants.

Despite its culpability in failing to produce a copy of
the tickets actually used by decedent to board Flight 007,
KAL was permitted to rely instead on a double hearsay
document that it characterized as “...the only and best
evidence of decedent’s contract of transportation... .”.
In fact, the Transcap writing is not evidence of decedent’s
contract or of any contract of carriage. It is, at most,
inadmissible evidence of the issuance of a ticket that decedent
didn’t use to fly to New York and that, on its face, would
not have applied to Flight 007 unless changed in the manner
hypothesized by KAL. Even at that, the ticket transaction

25

hypothesized by KAL would have created a treaty nexus with
the Untied States sufficient for the purposes of Article 28.
This because the alleged use of BCA tickets would have
involved a change in route and carriers and, according to the
Official Airline Guide (OAG), a change in fare in addition
to the need for a refund for the unused portion of the BCA
tickets. The mere change in routing required KAL to issue
new tickets according to the IATA Ticketing Handbook
governing industry and KAL ticketing procedures. In short,
the ticket transaction hypothesized by KAL and accepted by
the lower courts necessarily involved a novation.

In view of the foregoing, and considering particularly
the defendant carrier’s inordinate and unexcused delay in
moving for relief, KAL’s Article 28 motion should not have
been granted in the absence of a copy of the ticket KAL
contends evinced the contract of carriage. .

CONCLUSION

For the reasons stated herein, a writ of certiorari should
issue to review the decision of the United States Court of
Appeals for the District of Columbia and, ultimately, to
vacate and reverse the order below and remand the matter to
the District Court for trial of damages.

Respectfully submitted,

— FRANK H. Graniro, Jr.
Counsel of Record
SPEISER, KRAUSE, NOLAN & GRANITO
Attorneys for Petitioners
140 East 45% Street, 34" Floor
New York, NY 10017
(212) 661-0011

APPENDIX

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APPENDIX A — JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT DATED AND
FILED MARCH 3, 2000

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 99-7105
September Term, 1999

Kimberly Saavedra, as Special Administrator of the Estate
of Juan Ingvar Roland Hjalmarsson, deceased, and as

Personal Representative of Olga Hjalmarsson for Olivia
- Hjalmarsson, a minor, and Alexander Hjalmarsson, a minor,

Appellant
v.
Korean Air Lines Co., Ltd.,
Appellee
Appeal from the United States District Court
for the District of Columbia

(No. 83cv09240)

Before: WILLIAMS, GINSBURG, and RoGers, Circuit
Judges.

JUDGMENT

2a

Appendix A

This cause came on to be heard on appeal from a
judgment of the District Court, and was briefed and argued
by counsel. The Court has determined that the issues
presented occasion no need for a published opinion. See D.C.
Cir. Rule 36(b). It is

Ordered and Adjudged that the judgment of the district _
court is affirmed. Assuming in-appellant’s favor that the
burden of proof was on defendant to show the application of
the Warsaw Convention, and assuming that the district court
erred in admitting the Transcap document, the court is not
in “grave doubt” that (and does not believe that) any such
error had “substantial influence” on the outcome. See
Schneider v. Lockheed Aircraft Corp., 658 F.2d 835, 844
(D.C. Cir. 1981).

The Clerk is directed to withhold issuance of the mandate
herein until seven days after disposition of any timely petition
for rehearing. See D.C. Cir. Rule 41.

FOR THE COURT:
Mark J. Langer, Clerk

BY: s/ Eva Brown
Deputy Clerk

3a
APPENDIX B — MEMORANDUM OPINION AND
ORDER OF THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA DATED AND
FILED MAY 17, 1999

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 83-2940 (AER)
KIMBERLY S. SAAVEDRA, as Administrator
of the Estates of JAN INGVAR ROLAND

HJALMARSSON, Deceased,

Plaintiff,
v.
KOREAN AIR LINES CO., LTD.,

Defendant.

MEMORANDUM OPINION
This action is presently before the Court on Defendant’s
motion to dismiss for lack of subject matter jurisdiction.
Upon consideration of the entire record, and for the reasons
stated below, the Court will grant the motion and dismiss

the action for lack of jurisdiction.

I Background

The parties agree that Jan Ingvar Roland Hjalmarsson
was a passenger on Korean Air Lines (KAL) Flight KE007,

4a
Appendix B

which was shot down by the air force of the former Soviet
Union on September 1, 1983. The parties disagree, and the
record is sparse, as to how Mr. Hjalmarsson came to board
that ill-fated flight. The question of what tickets he used has
some importance because, under the Warsaw Convention,'
it determines where his personal representative can file suit,
and possibly even whether the Warsaw Convention applies
to this case. The Court allowed Plaintiff extensive time for
discovery and held an evidentiary hearing on January 7, 1999
to resolve disputed questions of fact. Having carefully
evaluated the testimony presented at the hearing and given
due weight to the exhibits in evidence, the Court now enters
findings of fact and conclusions of law as to the question of
the subject matter jurisdiction of this Court. See Fed. R. Civ.
P. 52; Herbert v. National Academy of Sciences, 974 F.2d
192, 197-98 (D.C. Cir. 1992).

II. Findings of Fact

1. Jan Ingvar Roland Hjalmarsson (“Hjalmarsson” or
“Decedent”’) purchased airline tickets for extensive
international travel from a Nigerian travel agent, Transcap
Travel Bureaux Nigeria (“Transcap”).

2. At the time he purchased his airline tickets,
Hjalmarsson intended to begin and end his travel in Port
Harcourt, Nigeria, with intermediate stops in the United
States, Great Britain, the Republic of Korea, and other countries.

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 note following 49 U.S.C. § 1502
(1976)).

8 Fea RIAA Re AB ges 9 CSE IN ONE OEN e USE ORRIN

Sa

Appendix B

3. At all relevant times Nigeria was a High Contracting
Party to the Warsaw Convention.

4. Hjalmarsson telephoned KAL Reservations on
August 26, 1983 and indicated he would be traveling on KAL
Flight KE007 and that he was in possession of his ticket.

5. On September 1, 1983, Hjalmarsson was a passenger
on KAL Flight KE007 which was shot down en route to
Seoul, Korea from New York, New York by miltary aircraft
of the Soviet Union.

6. The parties have been unable to locate ticket coupons
used by Hjalmarsson in boarding Flight KE007.

7. Hjalmarsson was traveling on KAL Flight KE007
pursuant to the contract for round trip transportation from
Port Harcourt, Nigeria, which he had entered into when he
bought tickets from Transcap.

8. Specifically, Hjalmarsson exchanged the tickets he
was issued by Transcap for travel from New York to Los
Angeles, and from Los Angeles to Seoul for a boarding pass
for Flight KE007, New York to Seoul non-stop

III. Conclusions of Law

Defendant moves.to dismiss the Complaint for lack of
subject matter jurisdiction. Plaintiff alleges that jurisdiction
exists under the diversity statute, the Death on the High Seas
Act, and the Warsaw Convention. Plaintiff bears the burden
of establishing the subject matter jurisdiction of the Court.

6a

Appendix B

See McNutt v. General Motors Acceptance Corp., 298 U.S.
178, 189 (1936). Furthermore, “no action of the parties can
confer subject-matter jurisdiction upon a federal court. Thus,
the consent of the parties is irrelevant, principles of estoppel
do not apply, and a party does not waive the requirement by
failing to challenge jurisdiction early in the proceedings.”
Insurance Corp. of Ireland v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702 (1982) (citations omitted).

The Warsaw Convention applies to decedent’s travel
aboard Flight KE007 because he was engaged in
“international transportation” within the meaning of the
Convention. Decedent’s place of departure and place of
destination were both within the territory of a High
Contracting Party, Nigeria, and his trip involved several stops
within territories subject to other sovereignties.* See Warsaw
Convention Art. 1(2); see also Art. 1(3) (“Transportation to
be performed by several successive air carriers shall be
deemed, for the purposes of this convention, to be one
undivided transportation, if it has been regarded by the parties
as a single operation, whether it has been agreed on under
the form of a single contract or of a series of contracts . . .”).

The Court finds that it is the agreement of the parties to
transport a passenger by aircraft for hire which invokes the
terms of the Convention. A passenger ticket, while evidence
of a contract for carriage, is not the contract and is not a
necessary prerequisite for application of the Convention. See
Warsaw Convention, Art. 3(2) (“The absence, irregularity,

2. The Court notes that the Convention would apply even under
Plaintiff's theory that Decedent purchased a new ticket in New York.

7a
Appendix B

or loss of the passenger ticket shall not affect the existence
or the validity of the contract of transportation, which shall
nonetheless be subject to the rules of this convention.”); -
Boyar v. Korean Air Lines, 664 F. Supp. 1481, 1485 (D.D.C.
1987) (citing Block v. Compagnie Nationale Air France, 386
F.2d 323 (Sth Cir. 1967)).

The Warsaw Convention constitutes Plaintiff's exclusive
remedy for all causes of action arising out of the downing of
Flight KE007. See Warsaw Convention, Art. 24; E/ Al Israel
Airlines v. Tseng, 119 S. Ct. 662, 668 (1999) (“recovery for
a personal injury [suffered on board an aircraft] if not allowed
under the Convention, is not available at all.”’). Plaintiff's
claims under the Deain on the High Seas Act, and any state
law tort claims, are preempted by the Convention.

It follows that the only possible source for the
jurisdiction of this Court over Plaintiff's claims is the
Convention itself, and in particular Article 28. If the Court
does not have jurisdiction pursuant to Article 28 then the
Court tacks jurisdiction over Plaintiff's claim. See Klos v.
Polskie Linie Lotnicze, 133 F.3d 164, 167 (2d Cir. 1997);
Wyler v. Korean Air Lines, 928 F.2d 1167, 1175. (D.C. Cir.
1991).

Article 28(1) provides that

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

8a
Appendix B

place of business through which the contract has
been made, or before the court at the place of
destination.

It is clear that jurisdiction in the United States will not lie
under three of these possible locales. The domicile and
principal place of business of Korean Air Lines are in Korea,
see Wyler, 928 F.2d at 1175, and the United States was clearly
not Decedent’s place of destination. The only real question
is whether Decedent made a contract for transportation within
the United States.

The Court finds that Decedent made his contract for
travel before he left Nigeria. The fact that the dates of specific
travel were left open, that he may have later changed specific
legs of his journey and that his journey was expected to last
an extended period of time, do not alter the fact that he
purchased round trip transportation originating in Port
Harcourt, Nigeria. See Warsaw Convention Article 1(2);
Haldiman v. Delta Airlines, No. 98-7135, slip op. at 4-5 (D.C.
Cir. March 12, 1999); Boyar, 664 F. Supp. at 1485-87.

It is the Court’s view that Defendant intended to make a
round trip from Nigeria and purchased tickets which enabled
him to make a round trip from Nigeria.’ It was that transaction
which established a contract for international transportation
under the Convention. While the Court finds that it is most
likely that Decedent converted tickets for the N.Y.-L.A. and

3. It is worth noting that the Nigeria Airways tickets, which
Decedent had apparently bought before the Transcap tickets for
travel within the United States and Europe, also reflected round trip
transportation originating in Port Harcourt, Nigeria.

9a
Appendix B

L.A.-Seoul flights into a N.Y.-Seoul boarding pass, the exact
transaction by which he boarded KE007 cannot be
determined with any certainty at this late date. However, the
exact transaction is relatively unimportant for the purposes
of the Convention.

[A]n airline ticket evidences a highly modifiable
contract. .. . Therefore in most situations, where
a passenger enters into a contract for air
transportation but decides to take a flight that is
in some way not represented by the passenger
ticket issued to him or her, the passenger and the
airline merely modify the original contract rather
than enter into a whole new one. Under these
circumstances, the place of business through
which the contract has been made remains
unchanged. Boyar, 664 F. Supp. at 1485-86
(citations and internal quotation marks omitted).

The Court concludes that Decedent merely modified his
contract for transportation in New York, and that he was
still traveling pursuant to the contract he had entered into in
Nigeria. Accordingly, jurisdiction for this action does not
lie in the United States pursuant to Article 28 of the Warsaw
Convention and the case must be dismissed for lack of subject
matter jurisdiction.

IV. Conclusion
Exactly how Jan Hjalmarsson came to be aboard Flight

KE007 will never be known. The Court has made findings
of fact based on the available evidence. The Court finds that

10a
Appendix B

Plaintiff has not been able to establish that Decedent made a
new contract in New York to board KAL Flight KE007.
Rather, the Court concludes that Decedent was on board
pursuant to the contract for transportation which he made in
Nigeria. Accordingly, there is no basis to bring this action
in the United States under the Warsaw Convention and the
action must be dismissed. An appropriate order issues this
same day.

s/ Aubrey E. Robinson, Jr.
Aubrey E. Robinson, Jr.
United States District Court

Dated: May 17, 1999

lla

Appendix B

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 83-2940 (AER)

KIMBERLY S. SAAVEDRA, as Administrator
of the Estates of JAN INGVAR ROLAND
HJALMARSSON, Deceased,

Plaintiff,
v.
KOREAN AIR LINES CO., LTD.,
Defendant.
ORDER

Upon consideration of the pleadings and the evidentiary
record in this case, and for the reasons stated in the
accompanying Memorandum Opinion, it is by the Court this
17th day of May 1999,

ORDERED, that Defendant’s motion to dismiss is
hereby granted; and it is

FURTHER ORDERED, that this action is hereby
DISMISSED for lack of jurisdiction.

s/ Aubrey E. Robinson, Jr.
Aubrey E. Robinson, Jr.
United States District Court

12a

APPENDIX C — PER CURIAM ORDERS OF THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT DENYING
PETITION FOR REHEARING DATED AND
FILED APRIL 17, 2000

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 99-7105
September Term, 1999
83cv02940

Kimberly Saavedra, as Special Administrator of the Estate
of Juan Ingvar Roland Hjalmarsson, deceased, and as
Personal Representative of Olga Hjalmarsson for Olivia
djalmarsson, a minor, and Alexander Hjalmarsson, a minor,

Appellant
v.
Korean Air Lines Co., Ltd.,
Appellee
BEFORE: Williams, Ginsburg, and Rogers, Circuit
Judges.
ORDER

Upon consideration of appellants’ petition for rehearing
filed March 29, 2000, it is

13a

Appendix C

ORDERED that the netition he denied.
Per Curiam

FOR THE COURT:
Mark J. Langer, Clerk

BY: s/ Robert A. Bonner
Robert A. Bonner
Deputy Clerk

l4a

Appendix C

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 99-7105
September Term, 1999
83cv02940

Kimberly Saavedra, as Special Administrator of the Estate
of Juan Ingvar Roland Hjalmarsson, deceased, and as
Personal Representative of Olga Hjalmarsson for Olivia
Hjalmarsson, a minor, and Alexander Hjalmarsson, a minor,

Appellant
Vv.
Korean Air Lines Co., Ltd.,

Appellee

BEFORE: Edwards, Chief Judge; Silberman, Williams,
Ginsburg, Sentelle, Henderson, Randolph,
Rogers, Tatel and Garland, Circuit Judges

ORDER
Upon consideration of appellants’ petition for rehearing

en banc, and the absence of a request by any member of the
court for a vote, it is

ORDERED that the petition be denied.

1Sa

Appendix C

Per Curiam

FOR THE COURT:
Mark J. Langer, Clerk

BY: s/ Robert A. Bonner
Robert A. Bonner
Deputy Clerk

Circuit Judge Henderson did not participate in this
matter.

l6a

APPENDIX D — CONSTITUTIONAL AND
TREATY PROVISIONS INVOLVED

This case involves Article III of the U.S. Constitution
and provisions of the treaty of the United States commonly
called the Warsaw Convention and formally titled
“Convention for the Unification of Certain Rules Relating
to International Transportation by Air”, concluded at
Warsaw, Poland on October 12, 1929 [49 Stat. 3000, T.S.
No. 876, 137 L.N.T.S. 11 (1034)]. In pertinent part, the text
of Article III and the subject treaty provisions are as follows:

U.S. Constitution
Article III

Section. 1. “The judicial Power of the United States,
shall be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and
establish .. .”

Section. 2. “The judicial Power shall extend to all Cases,
in Law and Equity, arising under the Constitution, the Laws
of the United States, and Treaties made .. . to all Cases of
admiralty and maritime Jurisdiction; to Controversies ...
between citizens of different states .. .”

Warsaw Convention
Article 28

(1) 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

17a
Appendix D

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.

(2) Questions of Procedure shall be governed by the law
of the court to which the case is submitted.

Article 32

Any clause contained in the contract and all special
agreements entered into before the damage occurred by
which the parties purport to infringe the rules laid down by
this convention, whether by deciding the law to be applied,
or by altering the rules as to jurisdiction, shall be null and
void. .. . (emphasis added).

Article 25
(1) The carrier shall not be entitled to avail himself of

the provisions of this convention which exclude or limit his
liability, if the damage is caused by his wilful misconduct.

* * * *

18a

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20a

APPENDIX G — GREIN v. IMPERIAL AIRWAYS, LTD..,
COURT OF APPEAL, ENGLAND,
JULY 13, 1936

[Omitted here but submitted separately
as Lodging Appendix]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0923%3A1. Public record. Not legal advice.