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Scully v. American Airlines2/21/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
Patrick J. Scully and Merlyn C. Scully, his wife, appeal from a March 6, 2001, order of the Boone Circuit Court dismissing their personal injury action against the appellee, American Airlines ("American"), a Delaware corporation. The trial court dismissed the case for lack of subject matter jurisdiction. We affirm.
On Monday evening, August 26, 1996, Patrick Scully, and his wife, Merlyn, were passengers on American Eagle flight number 4019 destined for Cincinnati/Northern Kentucky International Airport. Residents of the West Indies, Patrick and Merlyn had arranged to travel that day from Port of Spain, Trinidad, to Northern Kentucky via Miami and Chicago . According to the Scullys, Patrick was severely injured upon his arrival in Kentucky.
In August 1997, the Scullys filed a negligence action in Boone Circuit Court. They alleged that Patrick had fallen directly from the aircraft onto the tarmac when a portable stair railing supporting his weight gave way. They contended that airline employees had negligently assembled the portable stairs causing the railing to collapse. Merlyn alleged that because of the airline's negligence, she had suffered the loss of consortium and services of her husband. American answered the complaint and asserted as a defense that the cause of action was limited by federal law.
In November 2000, American Airlines filed a motion to dismiss for lack of subject matter jurisdiction. It contended that the provisions of the Warsaw Convention applied to this case and preempted claims based on state tort law. Simultaneously, it moved for leave to file an amended answer specifically to include as a partial defense the provisions, defenses, and limitations included in the Warsaw Convention. On March 6, 2001, without addressing the pending motion for leave to amend its answer, the trial court granted American's motion to dismiss. This appeal followed.
CR 12.08 provides that a trial court shall dismiss an action whenever it appears that the court lacks jurisdiction of the subject matter. In January 1999, the United States Supreme Court ruled that the Warsaw Convention precludes a passenger on an international flight from maintaining an action for damages under state tort law. El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 161, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999). Accordingly, the trial court held that it lacked subject matter jurisdiction in this case.
On appeal, the Scullys argue that the trial court erred by concluding that the Warsaw Convention applies to this action since C by its terms C it pertains only to "international transportation." Because the last leg of their flight originated in Chicago , the Scullys contend that their travel should be characterized as domestic rather than international. We disagree.
Article 1(2) of the Convention defines "international transportation" 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...are situated... within the territories of two High Contracting Parties. . . .
Convention for the Unification of Certain Rules Relating to International Transportation by Air.
The domestic portion of international travel qualifies as international flight if both the passenger and air carrier are reasonably aware of the international nature of the transportation. Manion v. American Airlines, Inc., 17 F. Supp. 2d 1 (D.C. 1997). A passenger is bound "by the Warsaw Convention where he was aware of the international character of the flight,
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