OAKES, Circuit Judge:
This appeal relates to the Warsaw Convention, Article 28.
The district court denied appellant's motion to dismiss the complaint for lack of subject matter jurisdiction under Article 28(1) of the Warsaw Convention or, in the alternative, for improper venue under the same provision. Judge Ryan's interlocutory order, which was certified for appeal pursuant to 28 U.S. C. § 1292(b), held that the limitations imposed by Article 28(1) relate to venue only and that venue was properly established in this case, because Canadian Pacific has a place of business within the jurisdiction of this court. We disagree with this view of Article 28(1), and we are compelled to reverse the decision accordingly.
The language of many previous federal court decisions under the Convention has not treated these levels of judicial power separately; the cases have divided about evenly into decisions that view Article 28(1) as a clause dealing with subject matter jurisdiction and those that characterize it as a venue provision.
Article 28(1) of the Convention sets forth four clearly delineated forums as the only places in which suit may be brought. The Article mandates that
The language of the Article itself does not refer to jurisdiction, international or domestic, or to venue. Thus, we must look outside the Article to ascertain the intention of the drafters. Of little help to us are the unofficial and contradictory labels put on Article 28 in various reprints of the Convention.
There has not been unanimity on whether the forums of Article 28(1) refer to nations or to judicial subdivisions within nations. Compare, e. g., Dunning v. Pan American World Airways, Inc., 4 Av.Cas. 17,394 (D.D.C.1954) (judicial subdivision approach), with Mertens v. Flying Tiger Line, Inc., 341 F.2d 851 (2d Cir.), cert. denied, 382 U.S. 816, 86 S.Ct. 38, 15 L.Ed.2d 64 (1965) (national approach). The view that Article 28(1) speaks only on the national plane has nevertheless become the predominant view in the case law
Discussions by the delegates who drafted the Warsaw Convention as to the nature of Article 28 do not assist us, since there is no indication that use of the word "jurisdiction" was made in the technical sense with which we are ordinarily concerned.
We agree, however, that Article 28(1) ". . . must be considered as absolute and mandatory, on the national level, in the jurisdictional sense, and be given [its] proper status as a treaty obligation of our nation without equivocation."
We therefore look to the Convention to determine its applicability here. Only if it does apply so as to permit of treaty jurisdiction need we answer domestic jurisdiction and venue questions. If treaty jurisdiction under the Convention does not lie, federal jurisdiction under 28 U.S.C. § 1331(a), which permits cases arising under United States treaties, clearly cannot be established. Similarly, if the Convention precludes suit, our inquiry ceases without an examination of diversity jurisdiction under 28 U.S.C. § 1332(a) (2); in other words, treaty provisions, being of equal constitutional status, may operate under article VI of the Federal Constitution as limitations on diversity jurisdiction, just as the requirements of jurisdictional amount may so operate.
It is evident that this case does not fall within any of the categories of Article 28(1) and that the complaint must therefore be dismissed for lack of treaty jurisdiction. While defendant's motion for dismissal under Fed.R.Civ.P. 12(b) (1) and (3) was not based on our formulation of lack of treaty jurisdiction, we treat it as governed by Fed.R.Civ.P. 12(h) (3), requiring that the court must dismiss the action "whenever" it appears, by information of the parties "or otherwise," that the court lacks basic jurisdiction.
The domicile of Canadian Pacific Airways is in Canada, where it is incorporated, a fact not disputed by appellee. Similarly, Canadian Pacific's principal place of business is in Canada. In his complaint, appellee alleges that Canadian Pacific has "an office and principal place of business in the Borough of Manhattan, City and State of New York." On appeal, appellee has not pursued his contention that suit should be allowed on the basis that New York was the carrier's "principal place of business" within Article 28(1); instead, he relies upon his assertion that appellant maintains in New York City "a place of business through which the contract has been made," as that phrase was construed by this court in Eck v. United Arab Airlines, Inc., 360 F.2d 804 (2d Cir. 1966). We conclude that the principal place of business of Canadian Pacific within the Warsaw Convention's narrow meaning is in Canada.
Article 28(1) also provides for suit "before the court at the place of destination," a location that is clearly inapplicable to this case. The flight on which appellee was allegedly injured originated in Canada and was bound for Japan, which would be the only proper location for a suit under this provision of Article 28(1).
Finally, we come to appellee's assertion that the Article 28(1) provision for suit where the carrier "has a place of business through which the contract has been made" is sufficient to allow suit in
In Eck, the ticket for an international flight was purchased in Oakland, California, for a Switzerland-Sudanese Republic trip. Relying on the purchase of the ticket at a site within the United States, through an agency of the carrier, plus the existence of a regular ticketing and booking office within the United States, this court concluded that Article 28(1) was satisfied. 360 F.2d at 814-815. Eck quite clearly did not hold that suit in the United States would be proper where the ticket was purchased outside the United States and no United States contacts, including but not limited to interline or intraline ticketing arrangements, existed beyond the presence of a ticketing and booking office of the carrier-defendant.
Accordingly, we reverse because we are constrained to do so by the Treaty. Therefore, we need not deal with the domestic law questions of jurisdiction and venue.
Cases that have lent themselves to a venue characterization include Eck v. United Arab Airlines, Inc., 360 F.2d 804 (2d Cir. 1966); Pardonnet v. Flying Tiger Line, Inc., 233 F.Supp. 683 (N.D. Ill.1964); Spencer v. Northwest Orient Airlines, Inc., 201 F.Supp. 504 (S.D.N.Y. 1962); Mason v. British Overseas Airways Corp., 5 Av.Cas. 17,121 (S.D.N.Y. 1956). We recognize the fact that a number of cases in this circuit have been considered, by courts and commentators, as venue decisions.