Rinck v. Deutsche Lufthansa A.G. , 57 A.D.2d 370 ( 1977 )

Lupiano, J.

Plaintiffs purchased air transportation tickets in Nuremberg, Germany for round-trip transportation between Nuremberg and New York, with additional agreed stops on both legs of the journey at Frankfurt, Germany. The tickets listed Nuremberg as the place of both origin and destination. Missing from the ticket was the actual return flight reservation for the reason that the return flight was "open.” Plaintiff Alexandra Rinck allegedly sustained personal injuries while disembarking at New York. It is undisputed that this action is governed by the Warsaw Convention which provides, inter alia, that an action for damages "must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties * * * before the court at the place of destination” (49 US Stat 3000, 3020 [art 28, subd [1]).

The dictionary definition of "destination” is variously set forth as "[t]he place set for the end of the journey”; "the predetermined end of a journey.” Plaintiffs in contending that their destination was New York, rely on Aanestad v Air Canada (390 F Supp 1165). In Aanestad it was noted (p 1168) that the "place of destination” as used in the Warsaw Convention does not state "final” or "ultimate” destination and that the phrase connotes, under certain circumstances, the place of origin and, in addition, where open fares are involved, the "outward destination.” The court concluded that as the return leg of the round-trip air transportation ticket (routing Montreal-Los Angeles-Montreal) was left open, the place of destination within the Warsaw Convention was Los Angeles, because the flight ended when the airplane crashed in Canada while en route from Montreal to Los Angeles.

A journey or trip entails travel from one place to another. The ultimate end of plaintiffs’ round trip is undoubtedly Nuremberg. Indeed, they paid the fare to return them to Nuremberg. In Butz v British Airways (421 F Supp 127) the District Court disagreed with the Aanestad holding. There, the passenger ticket of the plaintiff designated London as the place of departure as well as destination, with an intermediate stopping place in the United States at New York City. Plaintiff alleged injury sustained as the aircraft descended to land in New York. The critical issue was whether New York or London was plaintiff’s "place of destination” within the meaning of subdivision (1) of article 28 of the Warsaw Convention. It was observed that "[although the authorities which addressed this precise issue are not extensive, both the cases and the commentators are almost unanimous in concluding that the 'place of destination’ referred to in the Warsaw Convention 'in a trip consisting of several parts * * * is the ultimate destination that is accorded treaty jurisdiction’. Vergara v. Aeroflot 'Soviet Airlines’ 390 F Supp at 1269; accord, Parkinson v. Canadian Pacific Airlines, 10 Av.Cas. 17,967 (S.D.N.Y. 1968); Burdell v. Canadien Pacific Airways, Ltd., 17 Av.Cas. 17,356 (Ill. Cir. Ct. 1969); Felsenfeld v. Societe Anonyme Belge D’Exploitation de la Navigation Aerienne, 234 N.Y.S.2d 351 (City Civ. Ct. 1962); Bowen v. Port of N. Y. Authority, 8 Av.Cas. 18,043 (Sup. Ct. Queens County 1964); cf. 1 L. Kriendler, Aviation Accident Law § 11.05 n. 25; Lowenfeld and Mendelsohn, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497, 523 (1967); Note, Article 28 of the Warsaw Convention: A Suggested Analysis, 50 Minn. L. Rev. 697, 702 (1966) * * * [I]n Aanestad the ticket did not specify the origin and destination whereas in the case sub judice the ticket designates London as the point of origin and the destination. But apart from that distinguishing feature, I cannot agree with the Court’s analysis in Aanestad. Whether the return portion of the ticket is characterized as an option or a contract, the carrier was legally bound to transport the passenger back to the place of origin within the prescribed time and the passenger for her part agreed to pay the fare and, in fact, did pay the fare. Thus, there was mutuality of obligation and a binding contract of carriage. The fact that the passenger could forego her rights under the contract does not make it any less a binding contract. Certainly, if the parties did not contemplate the return leg of the journey, the passenger would not have paid for it and the carrier would not have issued a round trip ticket. It is my conclusion that there is only one place of destination for Warsaw Convention purposes which in this case was London. I cannot accept plaintiffs contention that each place where a particular flight terminated is a 'place of destination’ since the application of the convention would vary with each segment of the entire journey. This, of course, would defeat a major goal of the High Contracting Parties for there would be no uniformity with respect to a single ticket” (Butz v British Airways, 421 F Supp 127, 130-131).

As noted in Galli v Re-Al Brazilian Int. Airlines (29 Misc 2d 499, 501) (which case is cited with approval in Lowenfeld and Mendelsohn, The United States and the Warsaw Convention, 80 Harv L Rev 497, 523): "Plaintiffs rights under the Warsaw Convention are determined not by the flight which makes up part of the trip, but by the entire contract of carriage. (Wyman v. Pan Amer. Airways [181 Misc 963, affd 267 App Div 947, affd 293 NY 878, cert den 324 US 882].) Nor is this rule vitiated in any way by the fact that plaintiff did not intend to return to Brazil and had purchased a round-trip ticket merely to satisfy American immigration rules” (see Garcia v Pan Amer. Airways, 269 App Div 287, affd 295 NY 852, cert den 329 US 741).

The views expressed in Butz (supra) and Galli (supra) effectuate the sense and purpose of the convention by preventing a passenger from profiting by resort to the simple expedient of leaving "open” the return passage, and comport with common sense. On this record, the critical issue as to the "place of destination” within the meaning of subdivision (1) of article 28 of the Warsaw Convention must be resolved in favor of Nuremberg, Germany. Relevant to the dissent, it may be noted that in his peregrinations, Ulysses was not governed by the Warsaw Convention, nor was he bound by the strictures and refinements of the law of contracts.

The order of the Supreme Court, New York County (Asch, J.), entered November 8, 1976, granting defendant’s motion for summary judgment dismissing the complaint on the ground of lack of subject matter jurisdiction, should be affirmed, with costs and disbursements.