The opinion of the court was delivered by: SULLIVAN
MEMORANDUM OPINION AND ORDER
This matter is before the Court on defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, or in the alternative, for change of venue pursuant to 28 U.S.C. § 1404(a). Upon consideration of the pleadings and arguments of counsel, defendant's motion for summary judgment is GRANTED in part and DENIED in part for the following reasons.
Plaintiff claims that in anticipation of a honeymoon in June of 1995, he arranged to travel from Boston, Massachusetts to Shannon, Ireland with Aer Lingus, an airline company. These arrangements included a rental car and various overnight accommodations. After making these initial arrangements, plaintiff decided to leave for his honeymoon from Chicago, Illinois and scheduled a flight from Chicago to Boston. Plaintiff was issued one ticket booklet from Blue Horizons travel agency. The booklet contained coupons for the Chicago to Boston flight, and for the Boston to Ireland flight, as well as return coupons for the Shannon to New York flight, and from New York to Washington, D.C. The ticket also listed one Visa payment in the amount of $ 853.95. Attach. 1 Def. Mem. P. & A. and Ex. A.
On June 4, 1995, plaintiff and his wife arrived at the airport twenty minutes before their Chicago to Boston flight was scheduled to depart. Apparently, they arrived too late to go to the check-in at the ticket counter and went to the boarding gate where they checked their bags to Boston. Plaintiff and his wife were seated in Row 33 of MD-80 aircraft, in the last available seats on the plane. Plaintiff alleges that he and his wife noticed unusual, excessive noise from the engine before takeoff. Plaintiff maintains that he requested ear plugs from the flight attendant, but was told that there were none available on domestic flights. Plaintiff claims that during the flight, he unsuccessfully attempted to mute the engine noise by placing pillows and a blanket between himself and the window. Plaintiff alleges that he attempted to change his seat, but that there were no empty seats available on the plane. However, in plaintiff's deposition he stated that he had not asked the flight attendant to change seats. Def.'s Depo. at 37.
A few hours after deplaning in Boston, plaintiff and his wife flew to Ireland on an Aer Lingus flight. Two days later, plaintiff alleges that he noticed a sharp ringing in his ear. Plaintiff did not seek medical treatment during his honeymoon trip. Upon his return to the United States, plaintiff was diagnosed by Dr. Douglas Feldman, an ear, nose, and throat specialist, with Tinnitus. Tinnitus is a chronic condition which results in a continuous ringing in the ears and is symptomatic of other ear problems such as the overproduction of wax, ear infections, and acoustic tumors. The most common cause of Tinnitus is excessive exposure to loud noise on the job (musicians, carpenters) or recreation noise (shooting, loud music). Pl.'s Mem. Opp'n Summ. J. Ex. A. Dr. Feldman referred plaintiff to the University of Maryland School of Medicine, Tinnitus Clinic, where he remains a patient.
The Court should not grant a motion for summary judgment unless "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56. The evidence should be reviewed in a manner most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). When a motion for summary judgment is supported by affidavits or further testimony, the nonmoving party "may not rest upon the mere allegations or denials of the adverse party's pleading." Fed. R. Civ. P. 56. The nonmoving party must present affidavits setting forth specific facts showing that there is no genuine issue for trial. Id.; see Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
Plaintiff alleges that he suffered a hearing injury during a domestic flight from Chicago to Boston on defendant's carrier due to excessive engine noise. Plaintiff claims that the excessive engine noise was caused by the negligent maintenance and operation of the aircraft. Defendant maintains that the aircraft engines operated normally.
Defendant argues that plaintiff's Chicago to Boston flight qualifies as international travel and that as a result plaintiff may only bring an action under the Warsaw Convention.
The Warsaw Convention limits the monetary award for international passengers on airlines to $ 75,000 for bodily injury or death caused by an accident during international travel except in cases of failure of notice and willful misconduct. Plaintiff maintains that the Chicago to Boston flight does not qualify as international travel and has filed an action under state tort law
as opposed to the Warsaw Convention.
To determine whether the Warsaw Convention governs this action, the Court must first decide whether American Flight 294 from Chicago to Boston qualifies as international transportation. Article 1(2) of the Convention defines international transportation as "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 transhipment, are situated either within the territories of two High Contracting Parties . . . . " Convention for the Unification of Certain Rules Relating to International Transportation by Air, supra note 1, at P 27,012.
The domestic portion of international travel qualifies as international flight if both the passenger and air carrier are reasonably aware of the international nature of the transportation. See Stratis v. Eastern Airlines, Inc., 682 F.2d 406 (2d Cir. 1982); Lemly v. Trans World Airlines, Inc., 807 F.2d 26, 28 (2d Cir. 1986). A passenger is bound "by the Warsaw Convention where he was aware of the international character of the flight, even though he was injured on the domestic portion of the flight . . . ." Lemly, 807 F.2d at 27; see Stratis, 682 F.2d 406.
Plaintiff contends that the language of Article 1(2) of the Convention indicates that both parties must have contemplated international travel. Plaintiff directs the Court's attention to the language of the Convention which states, "according to the contract made by the parties." Convention for the Unification of Certain Rules Relating to International Transportation by Air, supra note 1, at P27,012 (emphasis added). Plaintiff maintains that this language suggest that the determination of international transportation is based on the parties' subjective, rather than objective, intent. In support of his claim that he did not contemplate or subjectively intend the Chicago to Boston flight to be "international" transportation, plaintiff notes that he made his travel arrangements on different days. Plaintiff further notes that he only checked his baggage from ...