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AUSTER v. GHANA AIRWAYS

September 21, 2005.

GAIL I. AUSTER, et al., Plaintiffs,
v.
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

MEMORANDUM OPINION

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.

I. Background

  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 plaintiffs' affidavits).

  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 ...


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