JURISDICTION UNDER ARTICLE 28
OF THE WARSAW CONVENTION
Charles E. Robbins*
An action for damages must be brought, at the option of the plaintiff, in the tcrritory
of one of the High Contracting Parties, either before the court of the domicile of the carrier
or of his principal place of business, or where he has a place of business through which the
contract has been made, or before the court at the place of destination.1
In Spencer v. Northwest Orient Airlines, Inc.,2 the plaintiff, a citizen of the
United States, was injured on a flight from Okinawa to Manila via defendant’s
airline. Suit was commenced in the United States District Court for the Southern
District of New York. The Court had in personam jurisdiction over the parties
and subject matter jurisdiction was expressly conferred on the Court by 28
United States Code s.1332. Defendant, after filing an answer to the complaint,
maintained that since it is domiciled and has its principal place of business in
Minnesota, and since Hong Kong was the destination of the flight and the place
where the contract of carriage was made, the Federal Court in New York is
not one of the court s before which the action for damages could be brought
against the carrier under the terms of Article 28(1) of the Warsaw Convention
and that, consequently, the Court was without jurisdiction over the subject
matter of the suit.
The Court noted that ‘Much of the case law on this subject is confused
and not well reasoned …
there appears to be no consistent or logical pattern
of decisional law.” 3 The conflict in the decisions has centered on whether
Article 28(1) is to be regarded as jurisdictional or as relating merely to venue.4
*LL.B. George Washington University; of the Washington, D.C. Bar.
‘Article 28(1), Warsaw Convention, 49 Star. 3000, 3020. The Convention, governing the treat-
ment of cases arising out of accidents occurring in international air transportation was drawn up
in Warsaw, Poland, in 1929, and was adhered to by the United States by presidential proclamation
dated October 29, 1934. A protocol to the Convention which was opened for signature at The Hague
on September 28, 1955, leaves the language of Article 28(1) unchanged. Aeronautical Statutes and
Related Material, U.S. Government Printing Office, p. 312. The United States has not, as yet, ratified
the protocol.
2(1962) 201 F. Supp. 504 (S.D.l&Y.).
3Ibid., at p. 506.
4The following cases have referred to Article 28(1) as “jurisdictional”: Berner v. United Airlines
Inc. (1956) 5 Avi. 17, 169 (Sup. Ct., N.Y. County); aff’d, 3 App. Div. 2d 9, (1956) 157 N.Y.S. 2d 884
3 N.Y.S. 2d 1003, 147 N.E. 2d 732, (1957) 170 N.Y.S. 2d 340; Ndo v. Sahena Belgian World Airlines
(1962)207 F. Supp. 191 (E.D. Pa.); Winsorv. UnitedAirlines Inc. (1957) 153 F. Supp. 244 (E.D.N.Y.);
Galli v. Re-al Brazilian International Airlines (1961) 7 Avi. 17,614 (N.Y. Sup. Ct., Queens County);
In the Matter of the Estate of Waldrep (1957) 5 Avi. 17,267 (Sup. Ct. Wash.); Tumarkin v. Pan American
World Airways Inc. (1956) 4 Avi. 18,152 (N.J. Super.); Rotterdamsche Bank v. British Overseas Airways
Corp. and Aden Airways Ltd. [1953] U.S. and Can. Av. R. 163 (Q.B.); Woolf v. Aerovias Guest
[1954] U.S. and Can. Av. R. 399 (N.Y. Mun. Ct.,); Martino v. Trans World Airlines Inc. (1961]
U.S. and Can. Av. R. 651 (D.C.N.D. Ill.). Other cases have referred to Article 28(1) as relating
to “venue”: Mason v. British Overseas Airways Corp. (1956) 5 Avi. 17,121 (S.D.N.Y.); Dunning v.
Pan A nerican World Airways, Inc. (1954) 4 Avi. 17,394 (D.C. Dist. Col.); Scarf v. Trans World Airlines
Inc. (1955) 4 Avi. 17,795 (S.D.N.Y.).
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ARTICLE 28 OF THE WARSAW CONVENTION
This distinction has proved important mainly in the respect that objections to
venue, the place of the trial designated for the convenience of the litigants, 5
are personal to the defendant and are waived if not timely raised,6 whereas
lack of jurisdiction over the subject matter, relating to the competency or
power of the court, may be raised at any time. 7
In retaining the case, the Court used some strong language:
In any event, in so far as Article 28 would operate as a plea in bar to the maintenance of
an action for damages against an air carrier, it seems to me to be concerned only with the
question of the circumstances under which resort may be had to the national court system of
one of the high contracting parties as a forum available to a claimant in which to pursue his
remedies. Viewed in this light, once one of the requirements of Article 28 is met, e.g., that
the domicile or place of business of the carrier is in the territory of one of the high contracting
parties, then a plaintiff seeking damages against a carrier may bring an action in the courts
of that high contracting parry as permitted by its laws. Since the defendant carrier here has
both its domicile and principal place of business in the United States, the action may be brought
in the district courts of the United States upon which jurisdiction has been conferred by Con-
gress to hear and determine actions of this nature, i.e., actions for more than $10,000 between
citizens of different states. This view of Article 28 brings it into harmony with the federal
udiial system while giving it the full meaning and effect which must have been intended
y the high contracting parties to the Convention. Cf. Art. 32.8
Much of the force of the opinion, however, is beclouded by a final paragraph:
The question remains as to whether Article 28 as a practical matter should also be viewed
as a special venue provision governing actions coming under the Warsaw Convention and
requiring that venue in such actions be laid in the judicial district where one of the four re-
quirements of the Article is complied with. It is unnecessary here to decide that question…
defendant by serving its answer has waived its right to object to venue…
Previously, two other courts have had analogous factual situations before
them and arrived at conflicting conclusions. In Dunning v. Pan American World
Airways Inc.,’ 0 the routing of the ticket issued to plaintiff was from Lisbon,
Portugal, and return with various stopping places in Africa. The ticket was
issued by Pan American in Paris. Suit was commenced in federal court in the
District of Columbia where Pan American maintained offices. It was held,
without opinion: venue had been improperly laid in the District of Columbia
under Article 28; the case was ordered transferred”‘ to the United States District
Court for the Southern District of New York where Pan American alleged it
was domiciled and had its principal place of business. Plaintiff had argued that
the terms “domicile” and “principal place of business,” as used in Article 28
of the Convention, must be construed “in the international sense to mean the
5Olberding v. Illinois Cent. Ry. (1953) 346 U.S. 338.
ORule 12(b) Federal Rules of Civil Procedure.
7Rule 12(h) Federal Rules of Civil Procedure. This discussion deals with the federal court system;
however, it is clear that state courts may take jurisdiction of Warsaw cases since Article 28 does
not grant exclusive jurisdiction to federal courts. Cf. Freeman v. Bee Machine Co. Inc. (1942) 319 U.S.
448.
8Supra, note 2, at p. 507.
9Tbid., at p. 507.
1″Supra, note 4.
“Pursuant to 28 U.S.C. s.1406 (a).
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nation of domicile or pr-‘ncipal place business.”12 In Winsor v. United Airlines
Inc.,” plaintiff’s intestate had purchased air transportation from Gander,
Newfoundland, to Seattle, Washington, and return. The accident occurred in
Colorado. Suit was commenced in the United States District Court for the
Eastern District of New York. It appeared that the defendant was a Delaware
corporation and that its principal executive offices were located in Chicago.
The question of “jurisdiction,”
the Court said, was whether defendant main-
tains “a principal place of business” in New York. The Court, citing Berner v.
United Airlines, Inc.,’ 4 concluded that “not too fine a distinction” should be
drawn between the New York and Chicago offices, since defendant did a large
volume of business in New York.
The problem under discussion was recognized as early as 1937 by Professor
D. Goedhuis and the paucity of authority on the subject at this much later
time is somewhat surprising. Professor Goedhuis then stated:”
Whereas in the official British translation the words “tribunal du domicile du transpor-
teur” have been translated by “Court having jurisdiction where the carrier is ordinarily
resident,” the translation given by the U.S.A. Department of State used the words: “Court
of the domicile of the carrier.”
M. Sullivan observes that in any High Contracting Party which is composed of federated
States the question must arise whether the domicile referred to in art. 28 extends to the whole
territory of the contracting party, or means the component state in which the carrier has his
residence, if an individual, or is incorporated if a corporation. This difficulty could be solved
if in the American translation the same wording was used as that of the British translation.
The French writer, de Villeneuve,” has also noted that differences between
the English and American translations”7 of Article 28 have posed difficulties.
He states (this writer’s translation): “Actually, the concept of domicile in
Anglo-Saxon Law is different from the French concept. The closest-but not
exact-translation of the French domicile is ordinary residence which is the ex-
pression used in the English text. The term domicile is much stricter in the
United States.” That author concludes, by reference to English and French
law, that, while fuzzy, it would seem that under Article 28 the idea of the court
of the domicile of the carrier, or of the main office of its business, is a divisible
notion which recurs in each country where the enterprise has important business,
Sece “Statement Prepared by Counsel” 4 Avi. 17,395.
“Supra, note 4.
I4Supra, note 4.
“D. Goedhuis, National Airlegislations and the Warsaw Convention, The Hague, 1937, p. 292-293.
The text of the British translation of Article 28 is as follows: “1. An action for damages must be
brought, at the option of the plaintiff, in the Territory of one of the High Contracting Parties, either
before the court having jurisdicti6n where the carrier is ordinarily resident, or has his principal
place of business, or has an establishment by which the contract has been made or before the court
having jurisdiction at the place of destination.” Goedhuis, p. 286.
16de Villeneuve, Jacques G., “Comptence Juridictionnelle et LDx Fori dans ]a Convention de
Varsovie” (1961-62) 8 McGill L. J. 285 et seq.
‘?The Convention is drawn up in French. No provision is made for any other language. Article
36, 49 Stat. 3022. The French text of Article 28 appears at 49 Star. 3007.
No. 4]
ARTICLE 28 OF THE WARSAW CONVENTION
a concept going far beyond any interpretation given Article 28 by an American
court. However that may be, it is submitted that the result in Dunning v. Pan
American World Airways Inc.,”‘ is incorrect and unjustified by any “‘practical
considerations.”
Firstly, where the text of a treaty is in one language only, that text is con-
trolling. 19 If we are to assumd that the French-and English-concept of domi-
cile is much broader than tfie American concept, as de Villeneuve suggests it
is, it may be argued that the American courts are obliged to accord their inter-
pretation of the term “domicile” as closely as possible to the French concept.
Secondly, the Supreme Court has said that the courts, in construing treaties,
should ascertain and give effect to the intention of the parties and that a treaty
should be construed in the light of circumstances existing at the time it was
made. 20 Viewed from this requirement, it would seem that American courts
have not accorded proper weight to the discussion of the delegates to the
Warsaw Convention on Article 28.21 No evidence can be found anywhere that
the drafters of the Convention intended to alter the judicial system of any
country. The British delegate had fears that carriers might be subjected to
the courts of Persia or Mesopotamia and other “far off” countries where courts
1’really are not well organized.” There are frequent references to “jurisdiction”
is used not at all.
in the discussion of the delegates, but the term “venue”
Thirdly, there is no evidence that, by advising adherence, the Senate had
any intention of circumscribing the jurisdiction of the Federal courts. 22
Finally, in construing words used in a treaty, too great weight should not
be given to the local definition and use of particular words, 23 as seems to be
the case in the interpretation of “domicile” and “principal place of business”
in Dunning. Treaties should be construed to tend toward placing contracting
parties on an equality.24 And where a treaty admits to two constructions, one
restrictive as to the rights which may be claimed under it, and the other favor-
able to such rights, the latter is preferred.25
Admittedly difficult to resolve, it is suggested that the question of whether
Warsaw actions must be laid in the judicial district (or some other subdivision?)
where one of the four requirements of Article 28(1) is met deserves more atten-
1 Supra, note 4.
19Todok v. Union State Bank (1929) 281 U.S. 449.
“5United States v. Texas (1895) 162 U.S. 1; Goefroy v. Riggs (1899) 133 U.S. 258.
21H1 Confirence Internationale do Droit Privi Alrien, 4-12 Octobre 1929, Varsovie, ICAO Doe. 7838,
pp. 77-79; translated (1959) 26 J. Air Law and Commerce, pp. 229-230. The United States did not
send a delegate to the Convention, but had an observer there.
22(1934) 78 Cong. Rec., p. 11,577 e sel.
2 5Wyers v. Arnold 147 S.W. 2d 644, cert. denied, (1941) 313 U.S. 589; Ittre Zalewski’s Estate (1944)
55 N.E. 2d 184.
2’Factor v. Laubenheimer (1933) 290 U.S. 276.
t’Baccardi Corporation v. Domenech (1940) 311 U.S. 150, 163.
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[Vol. 9
tion than it has received in the courts. It is submitted that there is no justi-
fication for the result in Dunning when we consider that it is at odds with the
general jurisdiction 26 and venue2 7 provisions of the United States Code and with
the apparent intentions of the drafters of the Warsaw Convention.
It is suggested that Article 28(1) should, in minimum terms of liberality,
be construed to mean that where the domicile or an important place of business
of the carrier is within the territory of one of the high contracting parties,
then suit may be brought by a plaintiff in that country as permitted by its laws.
This rule is subject to uniform application and is logical in all respects. And
Federal courts in the United States would not be burdened with suits brought
in inappropriate districts if this construction is followed. Provision is made
in the Code that, for the convenience of parties and witnesses, in the interest
of justice, a district court may transfer any civil action to any other district
or division where it might have been brought, 28 and defendant carrier is en-
titled to such transfer upon a proper showing.
U28 U.S.C. s.1332.
2728 U.S.C. s.1391(c) provides: “A corporation may be sued in any district in which it is incor-
porated or licensed to do business or is doing business, and such judicial district shall be regarded
as the residence of such corporations for venue purposes.”
2828 U.S.C. s.1404(a).
CASE and COMMENT
