Waterman, Moore and Friendly, Circuit Judges. Moore, Circuit Judge (concurring in the result).
This action was commenced in the United States District Court for the Southern District of New York by appellant Martha Eck, a resident of California, against appellee United Arab Airlines (UAA), an alien corporation organized and existing under the laws of the United Arab Republic. Appellant sought to recover damages for personal injuries that she allegedly suffered when on March 16, 1962 an airplane owned and operated by UAA crashed in the vicinity of Wadi Halfa, Sudanese Republic, Africa. District court jurisdiction was alleged under 28 U.S.C. § 1332(a)(2).
Prior to answer, UAA moved, pursuant to Fed. R. Civ. P. 12(b), to dismiss the complaint on the grounds that: (1) the New York state courts had decided the same claim adversely to appellant and principles of res judicata prohibited the claim's relitigation*fn1 (2) the district court lacked jurisdiction over the subject matter of appellant's claim; (3) the district court lacked jurisdiction over the person of UAA; and (4) venue was improper. UAA also moved for summary judgment pursuant to Fed. R. Civ. P. 56. The court below concluded that it need not pass on the first ground stated in the motion to dismiss, it considered and rejected the second and third grounds, and went on to hold that the action should be dismissed because "in fact no venue exists in this court pursuant to the provisions of Article 28(1) of the Warsaw Convention." Eck v. United Arab Airlines, S.A.A., 241 F. Supp. 804, 807 (S.D.N.Y. 1965). For reasons set forth hereafter we hold that in so ruling the district court erred; therefore we reverse and remand for further proceedings.
The appellant was a member of a group that flew from Los Angeles to Europe on February 23, 1962 on a charter flight operated for the Far West Ski Association by Scandinavian Airlines System (SAS). The contract of carriage called for the group to return to Los Angeles on or about March 26, 1962. All arrangements for this SAS-operated, round-trip flight, were made by the ski association. Appellant apparently decided that she would take full advantage of her presence in Europe during February and March 1962, for, without the assistance of the ski association, she planned a side trip to Southern Europe and the Near East. Before departing for Europe on the charter flight, appellant purchased through the Oakland, California office of SAS a ticket for her separate trip, which named Zurich as both the place of departure and the place of destination. This ticket listed as agreed stopping places the cities of Vienna, Istanbul, Athens, Beirut, Jerusalem, Cairo, Rome, and Naples. Several different airlines were to provide the transportation specified in the tickets;*fn2 only the Jerusalem to Cairo portion of the transportation was to be provided by UAA. As noted earlier, during the Jerusalem to Cairo leg of the Zurich to Zurich flight, UAA's airplane carrying appellant crashed near Wadi Halfa and appellant allegedly suffered serious injuries due to the negligence of UAA.
The manner in which it was agreed that UAA would transport appellant is a well established feature of contemporary air transportation. A quick glance at the relevant schedules told the SAS clerk who waited on appellant that the airplanes of UAA regularly flew between Jerusalem and Cairo. He sold appellant reserved space on an appropriate flight and collected the fare. SAS then contacted the home office of UAA, located in Cairo, in order to confirm this reservation, thereby avoiding the confusion of duplicate or conflicting reservations. Finally, SAS made arrangements to forward to UAA the fare it had collected.
UAA had offices in the United States located at 720 Fifth Avenue in New York City and at 510 W. 6th Street in Los Angeles, but neither was involved in any direct way with the sale of the ticket to appellant. These offices primarily existed and continue to exist in order to service the needs of large metropolitan areas and supervise the promotional activity that resulted in more than $1,000,000 in United States bookings for UAA in 1963.*fn3 Space on a UAA flight need not be purchased at one of these two offices; indeed, it can be purchased at the ticket counter of almost any airline operating in the United States as easily as appellant purchased space on UAA's Jerusalem to Cairo flight at the Oakland, California office of SAS. UAA might have decided to channel all ticket purchases through one of its offices in the United States, but it did not. Instead, all reservations, wherever made in the United States, were cleared through Cairo.
In a case like that presently before us a court must decide in limine whether the Warsaw Convention*fn4 is applicable.*fn5 Frequently resolution of this threshold question poses issues of considerable complexity. See e.g., Mertens v. Flying Tiger Line, Inc., 341 F.2d 851 (2 Cir. 1965). Here, however, the Convention unquestionably applies. No one disputes that appellant's travel was "international transportation" as defined in Article 1(2).*fn6 And this is sufficient to invoke the Convention.
Application of the provisions of the Warsaw Convention means in the first instance that the present suit can be maintained only in one of the four forums enumerated in Article 28(1), an article that restricts 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, or in courts that lack advanced judicial procedures. Mertens v. Flying Tiger Line, Inc., supra at 855; Goodhuis, National Airlegislations and the Warsaw Convention, 287 (1937); McKenry, Judicial Jurisdiction under the Warsaw Convention, 29 J. Air L. & Com. 205 (1963).*fn7 Article 28(1) provides:
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 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.
The United States does not qualify as a "territory"*fn8 in which this suit may be maintained under three of Article 28(1)'s four provisions enumerating permissible forums. UAA is domiciled in Egypt and its principal place of business is also in that country.*fn9 The United States was not the "place of destination" stated in appellant's ticket, and was not mentioned therein. Therefore, even though the United States is a "High Contracting Party," this suit is maintainable in the United States if, but only if, we can conclude that in the United States UAA "has a place of business through which the contract [of carriage between appellant and UAA] has been made." The thrust of most of UAA's arguments advanced to support its motion to dismiss is that the third provision of Article 28(1), from which the foregoing ...