UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-2897

Summary Calendar

RENTON SWAMINATHAN,

Plaintiff-Appellant,

versus

SWISS AIR TRANSPORT

COMPANY, LTD.,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

(May 13, 1992)

Before POLITZ, Chief Judge, KING and EMILIO M. GARZA, Circuit

Judges.

POLITZ, Chief Judge:

Renton Swaminathan appeals the district court's dismissal of

his lawsuit for lack of subject matter jurisdiction. We affirm.

Background

Swaminathan purchased a roundtrip ticket from Swiss Air

Transport Co., Ltd., which routed him from Dakar, Senegal to Geneva
 

1 Official Title: "Convention for the Unification of

Certain Rules Relating to International Transportation by Air,

October 12, 1929." 49 Stat. 3000 (1934), T.S. No. 876, 137

L.N.T.S. 11 reprinted in 49 U.S.C. § 1502 note (l976).

 

2 Article 1(2) of the Warsaw 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 or a transshipment, are situated either

within the territories of two High Contracting Parties,

or within the territory of a single High Contracting

Party, if there is an agreed stopping place within a

territory subject to the sovereignty, suzerainty, mandate

or authority of another power, even though that power is

not a party to this convention.

2

to New York to Geneva and back to Dakar. The flight departed Dakar

on October 29, 1988 and arrived in New York the next day. No

specific return date or return flights are listed on the ticket

which simply reflected a purchase of an open return. Dakar is

listed as both the origin and ultimate destination of the flights.

Upon his arrival in New York, Swaminathan allegedly sustained

injuries when a metal box fell out of an overhead compartment and

struck him. He filed suit in state court in Texas and Swiss Air

removed to federal court, invoking the provisions of the Warsaw

Convention.1 The district court granted Swiss Air's motion to

dismiss for lack of subject matter jurisdiction, Rule 12(b)(1) of

the Federal Rules of Civil Procedure. Swaminathan timely appealed.

Analysis

Swaminathan's roundtrip flight clearly falls within the

provisions2 of the Warsaw Convention. Article 28(1) prescribes
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where an action must be brought. It states:

An action for damages must be brought, at the option

of the plaintiff, in the territory of one of the High

Contracting Parties, either [1] before the court of the

domicile of the carrier or [2] of his principal place of

business, or [3] where he has a place of business through

which the contract has been made, or [4] before the court

at the place of destination.

I. Place of Destination

Swaminathan contends that New York City was the place of

destination under Article 28 because he left the specific flight

numbers and dates for his return to Dakar open, citing Aenestad v.

Air Canada, Inc., 390 F.Supp. 1165 (C.D.Cal. 1975), in support of

his argument that when the flight number, time, and class on a

return trip from the United States are left open, the place of

destination is the city in the United States. He misperceives the

law. Aenestad was squarely rejected 12 years later by the same

court in Lee v. China Airlines, 669 F.Supp. 979 (C.D.Cal. 1987),

which adopted the reasoning of Butz v. British Airways, 421 F.Supp.

127 (E.D.Pa. 1976). We agree with Lee. When a person purchases a

roundtrip ticket, there can be but one destination, where the trip

originated. Lee; In re Alleged Food Poisoning, 770 F.2d 3 (2d Cir.

1985). This is true even when the flight number, time, and date on

a return trip are left open.

Swaminathan contends that New York City should be the place of

destination under Article 28 because it was his intention at the

time he purchased the ticket to make New York his final destination
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and that the only reason he purchased a roundtrip ticket was

because it was less expensive. The court in In Re Air Crash

Disaster Near Warsaw, Poland, 760 F.Supp. 30 (E.D.N.Y. 1991),

accepted the proposition that it is the intent of the passenger

alone, "and not the intention of the parties as expressed in the

contract or otherwise," which determines the "final destination."

Id. at 32. We reject that absolute proposition as unworkable.

Necessarily a passenger's intent deserves considerable weight

when ascertaining the final destination; but this alone cannot be

the sole determining factor. Swaminathan entered into a contract

with Swiss Air when he purchased the roundtrip ticket. When

interpreting the meaning of a contract it is the objective, and not

the subjective intent of the parties which controls. When a

contract is unambiguous, the instrument alone is taken to express

the intent of the parties. Fuller v. Phillips Petroleum Co., 872

F.2d 655 (5th Cir. 1989); Shelton v. Exxon Corp., 921 F.2d 595 (5th

Cir. 1991).

The contract before us is unambiguous as to the destination.

The ticket clearly has Dakar listed as both the point of origin and

the destination. Under the terms of the ticket New York City is

merely an intermediate stopping point. The only uncertainty in the

ticket is the exact time, date, and flight number of the return to

Dakar. We look at the ticket and retain no doubt that Dakar,

Senegal is the final destination. In Re Korean Air Lines Disaster

of September 1, 1983, 664 F.Supp. 1478 (D.C.Cir. 1986); Lee;

Petrire v. Spantax, S.A. 756 F.2d 263 (2d Cir.), cert. denied, 474
5

U.S. 846 (1985).

II. Principal Place of Business

Next Swaminathan contends that because Swiss Air has an office

in New York City that New York City must therefore be its principal

place of business. This argument is without merit. Under

Article 28 there can be only one principal place of business for an

air carrier and this is normally where the air carrier is

incorporated. Wyler v. Korean Air Lines Co., Ltd., 928 F.2d 1167

(D.C.Cir. 1991); Smith v. Canadian Pacific Airways, Ltd., 452 F.2d

798 (2d Cir. 1971); Re Air Disaster Near Cove Neck, 774 F.Supp. 718

(E.D.N.Y. 1991). Swiss Air is incorporated in Zurich, Switzerland

and that is its principal place of business.

III. Constitutional Arguments

Finally, Swaminathan contends that Article 28(1) of the Warsaw

Convention deprives him of his constitutional rights to due process

and travel. We are not persuaded. The Warsaw Convention is a

treaty entered into by the United States and is the supreme law of

the land. U.S. Const. art. VI, cl.2; Boehringer-Mannheim

Diagnostics v. Pan Am World, 737 F.2d 456 (5th Cir. 1984). The

terms of Article 28 consistently have been upheld by our courts.

Lee; Smith; Duff v. Varig Airlines, Inc., 185 Ill.App.3d 992, 542

N.E.2d 69 (lst Dist. 1989); McCarthy v. East African Airways Corp.,

13 Av. Cas. (CCH) 17,385 (S.D.N.Y. 1974), aff'd sub nom. Fay v.

East African Airways Corp., 517 F.2d 1395 (2d Cir. 1975); Compagnie
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Nationale Air France v. Giliberto, 74 Ill.2d 90, 383 N.E.2d 977

(Ill. 1978), cert. denied, 441 U.S. 932 (1979).

A. Substantive Due Process

Swaminathan contends that Article 28(1) of the Warsaw

Convention violates his right to travel. It is manifest that the

limitations imposed by Article 28(1) are not wholly irrational.

The primary goal of the Warsaw Convention was to create uniformity

in the law regarding international air travel. Lee; Duff. The

treaty furthers this goal and, assuming that we would presume to

apply a constitutional test, it passes muster.

B. Procedural Due Process

The final argument is that Article 28(1) of the Warsaw

Convention violates Swaminathan's right to due process because he

would have no other recourse in this country if jurisdiction is not

found under the treaty. We need say no more than the United States

is not the proper forum for this suit. Article 28(1) informs of

the places where suit must be brought -- Senegal and Switzerland.

AFFIRMED.