The opinion of the court was delivered by: EMMET SULLIVAN, District Judge
Plaintiffs Gail I. Auster, Megan S. Auster-Rosen, and
Siddhartha Prakash bring this action under the Warsaw
Convention*fn1 for personal injuries resulting from the
crash of Airlink Flight 200, traveling from Tamale, Ghana, to
Accra, Ghana on June 5, 2000.*fn2 Defendant Airlink and
Defendant Ghana Airways' Second Motion for Summary Judgment is pending before the Court. Upon
consideration of defendants' motion, the responses and replies
thereto, the record in this case, and for the reasons detailed
below, this Court concludes that defendants' motion for summary
judgment should be GRANTED.
Plaintiff Gail Auster's decedent, Paul Rosen, and plaintiffs
Megan S. Auster-Rosen, and Siddhartha Prakash (collectively
"plaintiffs") were passengers on Airlink Flight 200 during
domestic air travel between Tamale, Ghana and Accra, Ghana on
June 5, 2000. See Auster Compl. ¶ 11(4); Prakash Compl. ¶ 10.
Airlink Flight 200 crashed while on the landing approach to
Kotoka International Airport in Accra, Ghana. Id. During the
crash Kenneth Paul Rosen was killed, and Megan S. Auster-Rosen
and Siddhartha Prakash suffered severe injuries. Id.
Siddhartha Prakash, on behalf of himself, Gail I. Auster,
individually and as personal representative of the Estate of
Kenneth Paul Rosen, deceased, and as the natural mother of Seth
E. Auster-Rosen and Rachel K. Auster-Rosen, minors, and Megan S.
Auster-Rosen, filed suit against defendants Ghana Airways Ltd.,
Airlink, and the Republic of Ghana (collectively "defendants"),
alleging willful and wanton misconduct on the part of defendants
in the operation of Airlink Flight 200, and seeking significant
damages totaling upwards of $40,000,000. See Auster Compl. ¶¶
11, 15; Prakash Compl. ¶¶ 8, 11, 13. Plaintiffs' claims are brought pursuant to the Warsaw
Convention, which is the exclusive remedy for personal injuries
suffered in the course of international commercial air travel.
Defendants maintain that they are entitled to summary judgment
because the domestic flight between Tamale, Ghana and Accra,
Ghana was not part of international air travel and the Warsaw
Convention thus does not apply. Plaintiffs insist, however, that
the domestic flight was merely one leg of their respective
international journeys and that therefore their injuries are
covered by the Convention.
Summary judgment should be granted pursuant to Fed.R.Civ.P.
56 only if no genuine issues of material fact exist and the
moving party is entitled to judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v.
District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002).
Although the party opposing the motion may not rely solely on
pleadings or conclusory factual allegations, the court must
resolve ambiguities and draw all reasonable inferences in favor
of the nonmoving party. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986); Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). III. Discussion
A. "International Transportation" and the Warsaw Convention
The Warsaw Convention applies to all international commercial
air travel and is the exclusive remedy for personal injuries
suffered "on board [an] aircraft or in the course of any of the
operations of embarking or disembarking." See El Al Israel
Airlines v. Tseng, 525 U.S. 155, 161 (1999). The issue in the
instant case is whether plaintiffs' travel from Tamale, Ghana to
Accra, Ghana was "international transportation" for purposes of
the Warsaw Convention.
Article 1(1) of the Convention provides that the Convention
applies "to all international transportation of persons, baggage,
or goods performed by aircraft for hire." 49 U.S.C. § 40105 note.
"International transportation" is defined in Article 1(2) 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 . . . within the territories of two High
Contracting Parties . . .
In order for a wholly domestic flight to fall within the Warsaw
Convention's definition of "international transportation," the
domestic flight must be part of one "undivided [international]
transportation." Article 1(3) of the Convention provides:
Transportation to be performed by several successive
air carriers shall be deemed, for the purpose 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 upon under the
form of a single contract or of a series of
contracts, and it does not lose its international
character merely because one contract or a series of
contracts is to be performed entirely within a
territory . . . of the same High Contracting Party.
Thus, plaintiffs are entitled to relief pursuant to the Warsaw
Convention for their injuries resulting from the domestic Airlink
crash only if, according to the agreement between the parties,
that flight was part of "one undivided transportation."
In support of their argument that the Airlink flight was part
of "one undivided [international] transportation," plaintiffs
rely on a number of facts which they claim are material and in
dispute. The Auster plaintiffs note that they were in possession
of round-trip, international tickets on Ghana Airways, with the
United States as their final destination, and that before leaving
the U.S., Mr. Rosen and his daughter had planned the domestic
flight in Ghana but, because Airlink did not sell tickets outside
of Ghana, those tickets had to be purchased separately, once
plaintiffs arrived in Ghana. Auster Pl. Opp. at 3 (citing
The Auster plaintiffs further maintain that once in Accra, they
purchased round-trip tickets on Airlink for travel between Accra
and Tamale, with the return flight scheduled to arrive in Accra
in time for them to catch their return flight to the U.S. Id.
at 3-4. Moreover, plaintiffs state that they showed their passports to the Airlink representative when they purchased the
domestic tickets and advised the representative that they had to
travel back to Accra in time to catch their return flight to the
U.S. Id. at 4. Finally, the Auster plaintiffs contend that they
considered the flight from Tamale to Accra to be part of a single
journey back to the U.S., and that the ticket agent who sold them
the Airlink tickets was advised of their flight to the U.S. and
suggested that plaintiffs take an earlier flight from Tamale in
order to assure that they would make their international
connections. Id. at 4-5.
Plaintiff Siddhartha Prakash was also in possession of
round-trip, international tickets on commercial airline carriers,
including Ghana Airways, with the U.S. as his final destination.
Prakash Opp. at 3 (citing plaintiffs' affidavits). Plaintiff
Prakash also maintains that he considered the flight from Tamale
to Accra to be part of a continuous trip back to the U.S. Id.
at 4. Mr. Prakash posits that the travel agent who ...