United States District Court, D. Columbia
September 21, 2005.
GAIL I. AUSTER, et al., Plaintiffs,
GHANA AIRWAYS, et al., Defendants. SIDDHARTHA PRAKASH Plaintiff, v. GHANA AIRWAYS, et al., Defendants.
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.
II. Standard of Review
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 booked his
flight to Accra was aware that he was a foreigner and would have
been in international travel. Id.
All plaintiffs assert that Airlink and Ghana Airways were
merged or allied entities, that plaintiffs were given boarding
passes from Ghana Airways, not Airlink, and that based on these
boarding passes and what they saw at the airport in Tamale, they
believed that they were on a Ghana Airways flight. See Auster
Opp. at 4; Prakash Opp. at 3. B. Intent of the Parties
Defendants point to a number of cases in which courts,
including this one, have held that it is the unambiguous language
in the contract for transportation between the parties i.e.,
the tickets and the circumstances surrounding the ticketing,
not the subjective intent of the parties, that will determine
whether a domestic flight and international flight constitute a
single operation for purposes of the Warsaw Convention. See
Manion v. Am. Airlines, Inc., 17 F. Supp. 2d 1, 4 ("In order to
determine the terms of a contract, the Court must decide the
intent of the parties based on the objective evidence, rather
than the `after-the-fact professed subjective intent.'")
(citations omitted); see also Coyle v. P.T. Garuda Indonesia,
363 F.3d 979, 987 (9th Cir. 2004); Sopack v. Northern
Mountain Helicopter Serv., 52 F.2d 817, 819 (9th Cir. 1995);
Petrire v. Spantax, S.A., 756 F.2d 263, 265 (2d Cir. 1985).
In this case, defendants argue, the Airlink tickets did not
reference any other flights or a larger itinerary, they were
marked "domestic," and they were purchased in Ghana, at a
different time and place than the international tickets were
purchased. This, defendants contend, constitutes objective
evidence that the parties did not intend the domestic Airlink
flight to be a part of "undivided international travel."
Plaintiffs counter that the only way to purchase Airlink
tickets was to purchase them in Ghana, that there were no representatives authorized to sell Airlink tickets outside of
Ghana, and that Airlink was the only air carrier flying between
Accra and Tamale at the time of the crash. See Auster Pl. Opp.
at 9-10, n. 4, citing defendants' Ex. 2. Plaintiffs further
contend that Airlink was on notice that plaintiffs regarded the
domestic flight as part of a single, undivided international
trip, based on the discussions plaintiffs had with the ticket
agent who sold them the Airlink tickets regarding their need to
return to Accra in time for their flights to the U.S. and because
they identified themselves as foreigners.
In support of their contention that a purely domestic flight
can constitute part of a single international journey for
purposes of the Warsaw Convention, plaintiffs point to Haldimann
v. Delta Airlines, 168 F.3d 1324 (D.C. Cir. 1999). In
Haldimann, the U.S. Court of Appeals for the District of
Columbia Circuit affirmed the district court's determination that
a purely domestic flight was nonetheless part of a single,
international operation. The Court based its decision on the
"documentary indicia," and found that plaintiff's entire
itinerary had been booked through one travel agent, the tickets
were issued and paid for on the same day, and that the tickets
shared a record number in the system so that a Delta agent
looking at the Delta flights on a computer would see the Swissair
portions of the trip, and vice versa. Id. at 1325. In the pending case, however, none of these "documentary
indicia" are present. Instead, the itineraries were booked by
different agents, they were issued and paid for separately, and
there is no evidence that an Airlink agent, looking up the record
of the Tamale-to-Accra flight, would have seen the other,
international, portions of plaintiffs' reservations in the
The recent decision of Robertson v. Am. Airlines, Inc.,
401 F.3d 499 (D.C. Cir. 2005) is somewhat more helpful to plaintiffs.
In that case, after reiterating that the court will look to
objective evidence of intent to determine whether the parties
intended a domestic leg to be part of "one undivided
[international] transportation," the court affirmed the district
court's finding that a domestic flight was covered by the Warsaw
Convention. Id. at 502. Plaintiff Robertson sought to avoid the
Warsaw Convention because the Convention's two-year statute of
limitations would bar her claim against the airline; she argued
that her tickets were purchased on two different airlines, on
different days, and that they were issued in separate booklets.
Id. at 503. The appellate court, however, was unpersuaded,
finding that Robertson clearly intended the domestic portion of
her trip as part of her broader trip from London to Washington.
Id. The court noted that Robertson had only scheduled a three
hour layover hardly time to leave the airport and that when Robertson had changed the date of one part of the trip, she
changed the other legs at the same time. Id.
Next, the Robertson court considered whether the airline
regarded plaintiff's trip as international travel. The court
concluded that although the airline may not have known that
Robertson was traveling internationally when she boarded the
domestic flight, the court applied the "imputation rule,"
imputing the travel agent's knowledge of the plaintiff's
intentions to the airline. Id. at 503-04. Importantly, the
court noted that it applied the imputation rule because the
district court had done so and plaintiff's briefs on appeal did
not dispute the rule's application. Id.
In the instant case, however, the Court is not persuaded that
the objective evidence supports a conclusion that the parties
intended plaintiffs' air travel from Tamale to Accra to be part
of "one undivided [international] travel." First, plaintiffs'
domestic tickets were purchased in different locations, at
different times, and through different agents than were their
international tickets. Whether plaintiffs subjectively intended
the domestic flight to be part of their international
transportation is irrelevant in the face of the objective
evidence. Second, the fact that plaintiffs may have shown their
passports to an Airlink agent or mentioned that they had a future
flight to the U.S. does not provide notice to the defendant in
this case that this was international travel. Foreigners could be living in Ghana, or on an extended stay,
taking a side trip to Tamale or Accra by no means would every
foreign passenger on a domestic flight be necessarily embarking
on international travel. Instead, plaintiffs' own evidence is
more consistent with a domestic side trip than with a trip from
New York to Tamale and back to New York or Washington, D.C. to
Tamale and back to D.C. See, e.g., Affidavit of Megan
Auster-Rosen, Auster Pl. Opp., Ex. C.; Affidavit of Siddhartha
Prakash, Auster Pl. Opp., Ex. D.
Moreover, the conversations with ticket agents relied upon by
the plaintiffs in this case, where plaintiffs allegedly discussed
with the ticketing agents flights to the U.S. that they were to
catch in the days following their arrival in Accra, are different
than the agent's knowledge in Robertson, where one travel agent
booked the domestic and the international tickets and thus, that
agent's knowledge was imputed to the airline. See Robertson,
401 F.3d at 503-04 ("[B]ecause the only evidence in the record
confirms that American (through Gateway [Travel]) knew of the
London-Denver leg of Robertson's trip, we concur in the district
court's conclusion that there is no genuine dispute that the
airline `was aware of [her] international flight plans.'")
(citations omitted) (emphasis in original).*fn3 Finally, as this and other courts have previously held, "[t]he
most significant objective evidence in this case is the ticket
itself." See Manion, 17 F. Supp. at 4 (citing cases and other
authorities). In this case, the Airlink tickets were stamped
"domestic" and were purchased separately from the plaintiffs'
international tickets. There is simply no objective documentary
evidence to support a conclusion that the parties intended
plaintiffs' domestic flight from Tamale to Accra to constitute a
portion of plaintiffs' international journey.
Upon consideration of defendants' second motion for summary
judgment, the responses and replies thereto and the relevant case
and statutory law governing the issues, it is by the Court hereby ORDERED that defendants' motion is GRANTED; it is further
ORDERED that this case be removed from the active calendar of
A separate Order and Judgment accompanies this memorandum
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