United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 6, 2007 Decided February 1, 2008

No. 05-7141

GAIL I. AUSTER, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OFKENNETH PAUL ROSEN,

DECEASED, AND NATURAL MOTHER OF SETH E.

AUSTER-ROSEN AND RACHEL K. AUSTER-ROSEN, MINORS, ET

AL.,

APPELLANTS

v.

GHANA AIRWAYS LTD., ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 02cv00733)

Nicholas Gilman argued the cause for appellants. With him

on the briefs was John M. Green.

Andrew J. Harakas argued the cause for appellees. With

him on the brief were Diane Westwood Wilson and Michael B.

MacWilliams.

Before: GINSBURG, Chief Judge, and RANDOLPH and

GRIFFITH, Circuit Judges.
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1

Convention for the Unification of Certain Rules Relating to

International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 137

L.N.T.S. 11, reprinted in 49 U.S.C. § 40105 note.

RANDOLPH, Circuit Judge: On June 5, 2000, Airlink Flight

200, traveling from Tamale, Ghana, crashed on its approach to

the airport in Accra, Ghana. On board were Kenneth Paul

Rosen, his daughter Megan Auster-Rosen, and Siddhartha

Prakash. Rosen was killed; Auster-Rosen and Prakash were

injured. Gail I. Auster (representing Rosen’s estate), AusterRosen, and Prakash brought this action against Ghana Airways

Ltd., Airlink, and the Republic of Ghana. They sought damages

under Article 17 of the Warsaw Convention,1

 which makes an

air carrier liable for an injury or death occurring in international

transportation aboard its aircraft. The district court held that the

Convention did not apply to Airlink Flight 200. We agree.

The Convention, to which the United States and Ghana are

signatories, is the exclusive remedy for an individual who is

injured aboard an aircraft in international transportation. El Al

Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 161 (1999).

The Convention provides that a domestic flight constitutes

international transportation if it is part of an international

itinerary “regarded by the parties[, i.e., the passenger and the

carriers,] as a single operation.” Art. 1(2)-(3); see also

Robertson v. Am. Airlines, Inc., 401 F.3d 499, 502 (D.C. Cir.

2005); Haldimann v. Delta Airlines, Inc., 168 F.3d 1324, 1325

(D.C. Cir. 1999).

Rosen and his daughter had tickets to fly out of Accra on

Ghana Airways three days after the Airlink flight. Prakash

claims that he was scheduled to leave on Ghana Airways one

day later. The defendants dispute Prakash’s claim, but we will

assume it to be true. Plaintiffs argued that the district court had
3

jurisdiction to hear their claim under Article 28 of the

Convention, which permits a person to sue for damages “in the

territory of one of the High Contracting Parties . . . before the

court at the place of destination.” For a round-trip journey, the

destination is the same as the point of origin. Haldimann, 168

F.3d at 1325. Here, all three passengers began round-trip

journeys in the United States.

All three defendants are “foreign states” within the meaning

of the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-

1611. Under the Act, a “foreign state” includes an “agency or

instrumentality of a foreign state,” which must be “a separate

legal person, corporate or otherwise” that is “an organ of a

foreign state . . ., or a majority of whose shares . . . is owned by

a foreign state.” Id. § 1603(b)(1)-(2). Ghana’s status as a

foreign state is obvious. Airlink, which was the name given to

the commercial operations of the Ghana Air Force, was an

agency or instrumentality of a foreign state. Transaero, Inc. v.

La Fuerza Aerea Boliviana, 30 F.3d 148, 151-52 (D.C. Cir.

1994). Ghana Airways was incorporated under the laws of

Ghana and wholly owned by Ghana.

Because they are foreign states, the defendants are immune

from suit in federal court absent a statutory or treaty-based

exception to the grant of immunity. 28 U.S.C. §§ 1330(a), 1604.

Plaintiffs claim that this case presents two such exceptions.

First, the Foreign Sovereign Immunities Act grants immunity

“[s]ubject to existing international agreements to which the

United States is a party at the time of enactment of this Act.” 28

U.S.C. § 1604. Because the United States was a party to the

Convention when the Act became law, plaintiffs assert that the

Act does not preclude their suit. Second, plaintiffs argue that

Article 17 of the Convention, which establishes a carrier’s

liability for “the death or wounding of a passenger,” abrogates

the defendants’ sovereign immunity because 28 U.S.C.
4

§ 1605(a)(1) recognizes an exception if “the foreign state has

waived its immunity either explicitly or by implication.” Under

either theory, the defendants are immune if the Convention does

not apply to the Airlink flight. Plaintiffs do not argue that any

statute or treaty other than the Convention abrogates the

defendants’ immunity.

We will assume for the sake of plaintiffs’ argument that the

Convention constitutes a waiver of immunity, although this

proposition is not obvious. See Argentine Republic v. Amerada

Hess Shipping Corp., 488 U.S. 428, 442-43 (1989) (finding no

waiver under § 1605(a)(1) when an international agreement did

not mention “a waiver of immunity to suit in United States

courts”); World Wide Minerals, Ltd. v. Republic of Kazakhstan,

296 F.3d 1154, 1162 (D.C. Cir. 2002) (“A foreign sovereign will

not be found to have waived its immunity unless it has clearly

and unambiguously done so.”). But see IAN BROWNLIE,

PRINCIPLES OF PUBLIC INTERNATIONAL LAW 339 (6th ed. 2003)

(the Convention “waive[s] . . . jurisdictional immunities”).

Nevertheless, no reasonable juror could conclude that the

Convention applies to Airlink Flight 200.

As we mentioned above, Article 1(3) of the Convention

provides that a domestic flight constitutes international

transportation if it is part of an international itinerary “regarded

by the parties as a single operation.” Although plaintiffs claim

that the three passengers intended their flight from Tamale to

Accra to be international transportation, what matters is the

objective evidence, not subjective evidence, of the parties’

intent. Robertson, 401 F.3d at 502, 504 n.3; Haldimann, 168

F.3d at 1325.

In February and April 2000, Rosen and Auster-Rosen

bought round-trip tickets on Ghana Airways from New York to

Accra. Prakash states that his employer bought him a one-way
5

ticket from Accra to Ouagadougou, Burkina Faso, before May

15, 2000. Plaintiffs have never alleged that these tickets referred

to any domestic flight within Ghana. While in Accra, Rosen and

Auster-Rosen bought round-trip Airlink tickets from a travel

agent called M&J Travel & Tours. These tickets for the trip

from Accra to Tamale were labeled “DOMESTIC.” They

neither listed a date for the flight from Tamale to Accra nor

referred to any international flight. Before Prakash arrived in

Accra, his employer bought him a one-way ticket on Airlink

from Tamale to Accra. This ticket was also labeled

“DOMESTIC,” it was issued by M&J Travel & Tours, it listed

the date of the flight as “OPEN,” and it did not refer to any

international flight. None of the three passengers’ tickets

support the claim that Airlink Flight 200 constituted

international transportation.

Despite this lack of documentary support, Auster-Rosen and

Prakash say they believed Airlink Flight 200 was operated by

Ghana Airways. Their objective evidence for this belief is that

Ghana Airways issued their boarding passes for that flight. We

will assume that the passengers intended their flight on Airlink

to be international transportation under the Convention. Even

so, the Convention will not apply unless Ghana Airways and

Airlink also regarded the passengers’ itineraries “as a single

operation.” Convention art. 1(3); Pimentel v. Polskie Linie

Lotnicze (In re Air Crash Disaster at Warsaw, Poland, on

March 14, 1980), 748 F.2d 94, 96 (2d Cir. 1984); see Robertson,

401 F.3d at 502-04.

There is no proof that Airlink intended to provide anything

but a ticket for domestic transportation. Airlink operated only

domestic flights and had no operations outside Ghana. In fact,

there was no reason for Airlink to know of the passengers’

international itinerary. Auster-Rosen claims that she and Rosen

informed an Airlink representative that they needed to return
6

from Tamale to Accra in time to catch their flight from Accra to

New York. Prakash claims that the travel agent who booked his

ticket knew that Prakash was a foreigner in international travel

because his employer, the World Bank, purchased the ticket.

However, M&J Travel & Tours, not Airlink, dealt with Rosen,

his daughter, and Prakash’s employer. Even if we were to

impute the travel agent’s knowledge to Airlink, as plaintiffs

urge, we would still agree that to “hold [an air carrier] to

Warsaw convention liability for supposed comments made in

passing to a single employee is wholly unreasonable. Stray

remarks do not alert an airline of its duties and liabilities. The

convention requires notice, not clairvoyance.” Santleben v.

Continental Airlines, Inc., 178 F. Supp. 2d 752, 757 (S.D. Tex.

2001) (quoted with approval in Coyle v. P.T. Garuda Indon.,

363 F.3d 979, 993 (9th Cir. 2004)). Under these circumstances,

Airlink did not have the knowledge necessary to intend the

passengers’ flight to be international transportation under the

Convention. See Haldimann, 168 F.3d at 1325 (“[I]n the rare

case where there has been evidence of the traveler's subjective

intent, and it contradicted the court's inference from specific

documentary indicia, courts have held that the indicia trump

subjective evidence.”)

Article 23 of the Convention, which prohibits a carrier from

limiting its liability, does not nullify Airlink’s policy of selling

tickets only in Ghana. Airlink did no business and operated no

flights outside Ghana. As a result, it might be difficult for any

plaintiff to recover from Airlink under the Convention.

Nevertheless, a carrier may decline to offer international flights

without violating the Convention. Article 33 of the Convention

provides that “nothing in this Convention shall prevent the

carrier . . . from refusing to enter into any contract of carriage.”

Additional Protocol No. 4 to Amend the Convention for the

Unification of Certain Rules Relating to International Carriage

by Air, Sept. 25, 1975, S. EXEC. REP. NO. 105-20 (1998), 2145
7

U.N.T.S. 36, available at http://www.jurisint.org/doc/html/

ins/en/2000/2000jiinsen17.html. In this case, Airlink simply

exercised its freedom not to offer international transportation.

The doctrine of equitable estoppel also cannot overcome the

objective evidence in this case. Equitable estoppel means that

“he who by his language or conduct leads another to do what he

would not otherwise have done, shall not subject such person to

loss or injury by disappointing the expectations upon which he

acted.” Dickerson v. Colgrove, 100 U.S. 578, 580 (1879).

Among the requirements for equitable estoppel is false

representation. Int’l Org. of Masters v. Brown, 698 F.2d 536,

551 (D.C. Cir. 1983). According to plaintiffs, Airlink’s refusal

to do business outside Ghana somehow misled the passengers

into believing that their flight from Tamale to Accra would

constitute international transportation. But plaintiffs have

identified no false representation by any defendant. Equitable

estoppel does not apply.

The district court correctly concluded that the Convention

did not apply to the passengers’ flight. As a result, the court

granted summary judgment to Airlink and Ghana Airways, and

dismissed the suit against Ghana for lack of personal

jurisdiction. The court should have dismissed the entire case for

lack of subject matter jurisdiction. Because the defendants have

sovereign immunity, the federal courts lack subject matter

jurisdiction in this case. 28 U.S.C. § 1330(a); Verlinden B.V. v.

Cent. Bank of Nigeria, 461 U.S. 480, 493-94 (1983). When a

court lacks subject matter jurisdiction, it must dismiss the case

and not grant summary judgment. FED. R. CIV. P. 12(h)(3);

United Transp. Serv. Employees ex rel. Washington v. Nat’l

Mediation Bd., 179 F.2d 446, 453-54 (D.C. Cir. 1949); 10A

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

Federal Practice and Procedure § 2713 (3d ed. 1998). The
8

district court’s orders are vacated and the case is remanded with

instructions to dismiss for lack of subject matter jurisdiction.

So ordered.