Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
HARRY T. EDWARDS, Circuit Judge:
The appellant, Charles Kapar, initiated an action in District Court seeking damages from Kuwait Airways Corporation ("KAC"), Pan American World Airways, Inc. ("Pan Am") and Middle East Airlines Airliban, S.A.L. ("MEA") for personal injuries he sustained when a KAC flight on which he was a passenger was hijacked. The District Court dismissed Kapar's claims against KAC and Pan Am, ruling that it lacked subject matter jurisdiction over both carriers under Article 28(1) of the Warsaw Convention ("Convention").
We find no error in the District Court's interpretation of Article 28(1). Furthermore, we find no merit in Kapar's alternative construction of this provision or his argument that he is entitled to bring an independent admiralty claim against KAC. We therefore affirm the dismissal of all claims against KAC and Pan Am. We remand the claim against MEA, however, because the District Court erred in dismissing MEA sua sponte for lack of personal jurisdiction.
In 1984, Kapar was employed by the Agency for International Development ("AID"). Although stationed in Karachi, Pakistan, he provided auditing services at AID missions throughout the Middle East and Southeast Asia. After completing an assignment in Sanaa, Yemen Arab Republic, he purchased an airline ticket to Karachi from Marib Travel and Tourism, an authorized Pan Am sales agent.
Kapar's ticket, which was issued on Pan Am ticket stock, was for travel on KAC flight # 782 from Sanaa to Kuwait City, Kuwait, on December 3, 1984, and then on KAC flight # 221 from Kuwait City to Karachi on the same day. This arrangement was not unusual. Most of the world's airlines — including Pan Am and KAC — routinely sell carriage over each other's routes on a commission basis, pursuant to standard interline traffic agreements promulgated by the International Air Transport Association ("IATA"). See Eck v. United Arab Airlines, 360 F.2d 804, 813 & n. 22 (2d Cir.1966). Under the terms of the Pan Am-KAC interline agreement, Kapar's payment was routed to a clearinghouse in New York, where settlement was made.
Kapar's trip on KAC flight # 782 from Sanaa to Kuwait City was uneventful. KAC flight # 221 was hijacked, however, after completing a refueling stop in Dubai, United Arab Emirates. The hijackers apparently
Following his return to the United States, Kapar filed suit in the District Court, raising various tort claims against the aforementioned defendants. KAC moved to dismiss the claims against it, arguing that it was not amenable to suit in the United States under Article 28(1) of the Convention.
Because KAC is based in Kuwait and the ultimate destination of KAC flight # 221 was in Pakistan, the District Court rejected Kapar's contention that the United States could serve as a proper forum under the first, second or fourth clauses of Article 28(1). With respect to the third clause, the court found implausible Kapar's "complicated theory," which was based on the fact that his ticket was electronically confirmed in New York and that as a federal employee he was allegedly obliged to buy his ticket from an American carrier. 663 F.Supp. at 1067. Consequently, the court granted KAC's motion to dismiss.
Having reached this conclusion, the District Court determined that it also lacked subject matter jurisdiction over Pan Am. The court reasoned that Pan Am, as KAC's agent, was fully entitled to KAC's Convention defenses. Id. at 1068.
Furthermore, the court rejected Kapar's contention that he could avoid the Convention's jurisdictional limitations by bringing a separate admiralty cause of action against KAC. The court held that the remedies provided in the Convention provided Kapar's exclusive source of relief.
Kapar seeks review of the District Court's decision pursuant to 28 U.S.C. § 1291 (1982).
A. Jurisdiction Over Pan Am as "Carrier"
At the outset, we emphasize that Kapar no longer claims that KAC is amenable to suit in the United States under Article 28(1).
This contention is without merit. Although the term "carrier" is not defined in the Convention, the manner in which it is employed, particularly in the chapter titled "Liability of the Carrier," makes clear that the Convention's drafters were referring only to those airlines that actually transport passengers or baggage ("actual carriers"). See Air France v. Saks, 470 U.S. 392, 396-97, 105 S.Ct. 1338, 1340-41, 84 L.Ed.2d 286 (1985) ("The analysis must begin ... with the text of the treaty and the context in which the written words are used."). In Article 17, for example, the "carrier" is deemed liable for death or bodily injury "if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking" (emphasis added).
Our understanding of the term "carrier," as utilized in the Convention, comports with the well-settled principle that an airline that issues a ticket for carriage on another airline acts only as the agent for the actual carrier. See, e.g., Block v. Compagnie Nationale Air France, 386 F.2d 323, 332-34 (5th Cir.1967), cert. denied, 392 U.S. 905, 88 S.Ct. 2053, 20 L.Ed.2d 1363 (1968); Eck, 360 F.2d at 814. This precedent reflects the longstanding practice and understanding of the world's international air carriers, whose standard IATA interline agreement provides that an issuing airline "shall be deemed to act only as an Agent of the
Finally, one must bear in mind that, by including Article 28(1), the drafters intended to "restrict the forums in which damage actions may be brought in order to foreclose the possibility of suit in the courts of a nation that has no substantial connection with an accident." Eck, 360 F.2d at 808; see also In re Air Crash Disaster Near New Orleans, La., 821 F.2d 1147, 1161 (5th Cir.1987) (en banc). Because the nexus with the United States in this case can only be described as "slight ... and remote," Kapar, 663 F.Supp. at 1068 n. 3, subjecting Pan Am to suit in the District Court would be inconsistent with the underlying purpose of Article 28(1).
B. Admiralty Jurisdiction Over KAC
Kapar believes that he may avoid the jurisdictional limitations of the Convention by bringing an independent admiralty claim against KAC under 28 U.S.C. § 1333 (1982). The District Court rejected this contention, holding that an admiralty cause of action is "unavailing where the United States is not an appropriate forum under the Warsaw Convention." Kapar, 663 F.Supp. at 1069.
We agree. As a treaty of the United States, the Convention "is equal in stature and force as any other domestic federal law." In re Air Crash Disaster, 821 F.2d at 1161 n. 19. Thus, even assuming that an admiralty claim could be maintained in this instance in the absence of the Convention,
Here, Kapar no longer contends that KAC is subject to "jurisdiction in the international or treaty sense." In re Air Crash Disaster, 821 F.2d at 1161 n. 21. As a result, our inquiry is at an end. We need
C. Personal Jurisdiction Over MEA
On May 7, 1986, MEA filed a motion to dismiss for lack of personal jurisdiction. Three weeks later, MEA voluntarily withdrew this motion and Kapar subsequently subjected MEA to discovery. Nonetheless, the District Court, sua sponte, dismissed Kapar's claim against MEA for want of personal jurisdiction.
This was error. "[B]ecause personal jurisdiction may be conferred by consent of the parties, expressly or by failure to object, a court may not sua sponte dismiss for want of personal jurisdiction, at least where a defendant has entered an appearance...." Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir.1969) (per curiam) (citations omitted); see also Williams v. Life Sav. & Loan, 802 F.2d 1200, 1202 (10th Cir.1986) (per curiam).
On remand, MEA may renew its motion to dismiss for lack of personal jurisdiction, request transfer to another venue or move to dismiss for lack of subject matter jurisdiction. On the record before us, we cannot determine whether the District Court lacked subject matter jurisdiction over MEA. See Reed v. Wiser, 555 F.2d 1079 (2d Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279 (1977).
For the reasons stated above, the District Court's decision is affirmed with respect to KAC and Pan Am. We remand Kapar's claim against MEA for proceedings not inconsistent with this opinion.
Neither Pan Am nor KAC argues that Kapar's injuries were not the product of an "accident," as that term is used in Article 17. See Saks, 470 U.S. at 405, 105 S.Ct. at 1345 ("lower courts in this country have interpreted Article 17 broadly enough to encompass torts committed by terrorists") (citing, inter alia, Evangelinos v. Trans World Airlines, 550 F.2d 152 (3d Cir.1977) (en banc)).