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Sopcak v. Northern Mountain Helicopter Services (10/11/96), 924 P 2d 1006
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska, 99501, phone (907) 264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
CHRISTEL GISELA SOPCAK; )
ESTATE OF MILAN SOPCAK, by and) Supreme Court Nos. S-5914/5934
through its administratrix, )
Christel Gisela Sopcak; SARAH ) Superior Court No.
JUNE MARYSKA, a minor, by and ) 1JU-90-1632 Civil
through her guardian ad litem,)
WENDY JUNE McMURCHY; LIBUSE )
MLOCH; ESTATE OF LUTZ JARALAV ) O P I N I O N
MARYSKA, by and through its )
administratrix, Wendy June ) [No. 4411- October 11, 1996]
McMurchy; LAJOS GAL; DOREEN P.)
HUBACEK; JIRI HUBACEK; ROSLYN )
CHANGE; and ESTATE OF ERIC R. )
BUDGELL, by and through its )
administratrix, Doreen P. )
NORTHERN MOUNTAIN HELICOPTER )
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
Larry R. Weeks, Judge.
Appearances: Dennis R. Lods, Sterns, Walker &
Lods, San Francisco, California, and Deborah
Holbrook, Juneau, for Appellants/Cross-
Appellees. Edward C. Devivo, Dombroff &
Gilmore, New York City, New York, and Gregory
W. Lessmeier, Lessmeier & Winters, Juneau, for
Appellee/Cross-Appellant Northern Mountain
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
The superior court dismissed the wrongful death and
personal injury claims of Christel Gisela Sopcak, and others
(collectively, Sopcak) against Northern Mountain Helicopter
Services, finding that it lacked subject matter jurisdiction over
those claims. Sopcak appeals, arguing that the superior court
improperly applied the doctrine of collateral estoppel and that
jurisdiction was proper under the Convention for Unification of
Certain Rules Relating to International Transportation by Air,
opened for signature Oct. 12, 1929, 49 Stat. 3000, T.S. 876,
reprinted at 49 U.S.C. sec. 40105 note (1994) (hereinafter "Warsaw
Convention"). Northern Mountain cross-appeals, arguing that the
superior court erred by not applying Canadian law and by failing to
dismiss the case under the doctrine of forum non conveniens. We
affirm the superior court's decision to dismiss the case for lack
of subject matter jurisdiction.
II. FACTS AND PROCEEDINGS
On February 7, 1990, a helicopter carrying miners from
the Johnny Mountain gold mine in British Columbia, Canada, crashed
in Alaska near Shakes Glacier on the frozen Stikine River. The
helicopter was being operated by Northern Mountain, a Canadian
corporation. The pilot and one passenger suffered serious
injuries. The remaining five passengers and the flight engineer
The helicopter was en route from the Johnny Mountain gold
mine to Wrangell, Alaska. The passengers were scheduled to board
a fixed-wing aircraft in Wrangell for transport to Vancouver,
British Columbia. These operations were part of a routine crew
change, shuttling miners back and forth between Vancouver and the
Johnny Mountain mine. When inclement weather prevented fixed-wing
aircraft from landing at the mine, the miners used helicopters to
fly to Wrangell where they would board a flight to Vancouver. The
mine operator, Skyline Gold Corporation, chartered helicopters from
Northern Mountain to provide this and other services.
In 1990 and 1991 the surviving passenger and the
representatives of several of the deceased passengers filed
personal injury and wrongful death suits against Northern Mountain
in the Alaska Superior Court. The suits were consolidated.
In February 1992 the Sopcak parties filed a complaint
against Northern Mountain in the U.S. District Court for the
District of Alaska. In November 1992 that court granted Northern
Mountain's motion to dismiss the federal case for lack of subject
matter jurisdiction. Sopcak v. Northern Mountain Helicopter
Servs., 859 F. Supp. 1270 (D. Alaska 1992). The court held that
under Article 28 of the Warsaw Convention, to which the United
States is a signatory, Alaska was not an available forum. Id. at
1272. Article 28 only allows subject matter jurisdiction in the
United States if the United States is the domicile of the carrier,
the carrier's principal place of business, the place of business
through which the contract has been made, or the place of
destination of the flight. Id. at 1271-72. The district court
found that the flight destination was Vancouver, Canada, not
Wrangell, Alaska, and that none of the other prerequisites listed
in Article 28 was met; it consequently concluded that it lacked
subject matter jurisdiction. Id.
Sopcak appealed this decision to the U.S. Court of
Appeals for the Ninth Circuit. The Ninth Circuit affirmed. Sopcak
v. Northern Mountain Helicopter Serv., 52 F.3d 817 (9th Cir. 1995).
It held that "the intention of the parties as expressed in the
contract of transportation, i.e., the ticket or other instrument,
determines the final destination. Such contracts should be
interpreted according to the objective, rather than the subjective,
intent of the parties." Id. at 819.
The Ninth Circuit went on to affirm the district court's
dismissal because the contracts of transportation between Skyline
and Northern Mountain were not in the record. Id. It rejected
Sopcak's argument that the district court had erred by not allowing
Sopcak to conduct the necessary discovery to obtain those
contracts, stating that "the Appellants failed to conduct discovery
during the nine-month period between the filing of their complaint
and the court's dismissal order. Therefore, Appellants can not now
complain that the court erred by not allowing them to conduct
eleventh-hour discovery upon an adverse ruling." Id. (citation
After the district court issued its decision, but before
Sopcak's federal appeal was decided, Northern Mountain moved to
dismiss Sopcak's state court lawsuit. The superior court granted
the motion in May 1993, holding that under the doctrine of
collateral estoppel Alaska lacked subject matter jurisdiction over
Sopcak's case. Sopcak timely filed the appeal now before us. (EN1)
After the Ninth Circuit issued its decision, and during
the pendency of the state court appeal, Sopcak filed a Civil Rule
60(b) motion in the superior court requesting reinstatement of the
state court suit. The superior court denied the motion, finding
that "regardless of the reasoning, the Court of Appeals affirmed
the federal court dismissal of the case."
A. Standard of Review
"The applicability of collateral estoppel to a particular
set of facts is a question of law subject to independent review."
State v. United Cook Inlet Drift Ass'n, 895 P.2d 947, 950 (Alaska
1995) (citing Rapoport v. Tesoro Alaska Petroleum Co., 794 P.2d
949, 951 (Alaska 1990)). "[W]e will adopt the rule of law that is
most persuasive in light of precedent, reason, and policy." United
Cook Inlet Drift Ass'n, 895 P.2d at 950 (citing Ford v.
Municipality of Anchorage, 813 P.2d 654, 655 (Alaska 1991)).
B. Collateral Estoppel and Subject Matter Jurisdiction under
Article 28 of the Warsaw Convention
Collateral estoppel precludes relitigation of a
previously determined issue where the first action is brought in a
federal court and a second action is brought in state court.
Campion v. State, Dep't of Community and Regional Affairs, 876 P.2d
1096, 1098 (Alaska 1994). The federal court rendered its decision
before Sopcak's state court lawsuit concluded. "The Restatement
(Second) of Judgments states that, in such cases 'the Full Faith
and Credit Clause or the Supremacy Clause of the United States
Constitution, or federal statutes or rules of decision, may require
that preclusive effect be given to the first decision.'" Id.
(quoting Restatement (Second) of Judgments sec. 28 cmt. e (1982)).
These considerations are even weightier when, as here, the matter
in question is one of federal law. See Ricotta v. Iberia Lineas
Aereas de Espana, 482 F. Supp. 497, 499 (E.D.N.Y. 1979) ("The scope
of the [Warsaw] Convention is a matter of federal law and federal
treaty interpretation."), aff'd, 633 F.2d 206 (2d Cir. 1980).
We have applied collateral estoppel to jurisdictional
issues. E.g., Campion, 876 P.2d at 1101 (applying collateral
estoppel to find absence of personal jurisdiction in Alaska).
Collateral estoppel requires the following:
1. The plea of collateral estoppel must be
asserted against a party or one in privity
with a party to the first action;
2. The issue to be precluded from
relitigation by operation of the doctrine must
be identical to that decided in the first
3. The issue in the first action must have
been resolved by a final judgment on the
Id. at 1098-99 (citation omitted). There is no dispute that the
parties in this case are identical to those in the previously
decided prior federal lawsuit.
1. Issue given preclusive effect
Sopcak argues that the issue of subject matter
jurisdiction in federal court is different from that in the state
superior court and that collateral estoppel therefore cannot be
applied. We disagree.
The Warsaw Convention is a multilateral treaty, ratified
by the U.S. Congress in 1934, intended to make uniform and
establish limits upon the potential liability of international air
carriers. In re Korean Air Lines Disaster on Sept. 1, 1983, 814 F.
Supp. 592, 596 (E.D. Mich. 1993); see generally Andreas F.
Lowenfeld & Allen I. Mendelsohn, The United States and the Warsaw
Convention, 80 Harv. L. Rev. 497, 498-99 (1967). The Convention
"constitutes the supreme law of the land in the matters upon which
it touches." In re Korean Air Lines Disaster, 814 F. Supp. at 596.
As both parties recognize, the flight giving rise to this
litigation falls under the Convention. See Warsaw Convention art.
Article 28 of the Warsaw Convention specifies four
locations where a suit can be brought. Article 28's restrictions
are jurisdictional in nature. See Gayda v. LOT Polish Airlines,
702 F.2d 424, 425 (2d Cir. 1983) ("Because Article 28 speaks to
subject matter jurisdiction, it operates as an absolute bar to
federal jurisdiction in cases falling outside its terms."
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.
Warsaw Convention art. 28(1). Unless the United States is the
domicile or principal place of business of the carrier, the site of
contracting, or the place of destination, U.S. courts lack subject
matter jurisdiction. See Mertens v. Flying Tiger Line, Inc., 341
F.2d 851, 855 (2d Cir.) (discussing jurisdictional requirements of
Article 28), cert. denied, 382 U.S. 816 (1965).
Both federal and state jurisdiction are limited by
Article 28. As a federal treaty, the Warsaw Convention has the
force of federal law and preempts inconsistent state law. See In
re Air Crash Disaster Near Honolulu, Hawaii on Feb. 24, 1989, 792
F. Supp 1541, 1548-49 (N.D. Cal. 1990) (holding that the Warsaw
Convention preempts conflicting local law); Floyd v. Eastern
Airlines, Inc., 872 F.2d 1462, 1480 (11th Cir. 1989) ("Any state
law in conflict with a treaty of the United States is invalid.
Therefore the Warsaw Convention preempts any state law which is
inconsistent with it."(citations omitted)), rev'd on other grounds
499 U.S. 530 (1991); Ricotta, 482 F. Supp. at 499 (holding that the
Warsaw Convention's statute of limitations "being a treaty
provision takes precedence over anything inconsistent in the state
statute of limitations."(citations omitted)).
Therefore, while Sopcak correctly points out that state
courts may have broader jurisdiction than their federal
counterparts, in this case Article 28 applies to divest both state
and federal courts of subject matter jurisdiction where the United
States is not one of the four specified fora. See Adesina v.
Swissair, 143 Misc. 2d 406, 544 N.Y.S.2d 409, 410 (App. Term. 1988)
(giving preclusive effect to federal determination of no subject
matter jurisdiction in Adesina v. Swissair, 648 F. Supp. 997, 998
(E.D.N.Y. 1986)). Alaska can only assert jurisdiction if Article
28 can be satisfied.
This issue has been decided. Sopcak, 52 F.3d at 819.
The federal courts determined that the place of destination was
Vancouver, British Columbia, not Wrangell, Alaska, and that Article
28(1) prevented jurisdiction from lying in the United States. 859
F. Supp. at 1272; 52 F.3d at 819. Given this fact, Alaska lacks
subject matter jurisdiction. The issue being precluded is
identical to that resolved in the previous decision.
2. Final judgment on the merits
Sopcak additionally argues that the federal decision was
not a final judgment on the merits. Sopcak argues that this is so
because the Ninth Circuit's reasoning differed from that of the
district court. According to the Restatement (Second) of Judgments
sec. 27, cmt. d (1982), however,
[w]hen an issue is properly raised, by the
pleadings or otherwise, and is submitted for
determination, and is determined, the issue is
actually litigated within the meaning of this
Section. . . . A determination may be based
on a failure of pleading or of proof as well
as on the sustaining of the burden of proof.
The Ninth Circuit based its decision on Sopcak's failure of proof.
Sopcak, 52 F.3d at 819. As such, its ruling constitutes a final
decision on the merits for the purposes of collateral estoppel.
See Nichols & Co. v. United States, 586 F.2d 826, 829 (C.C.P.A.
1978) (applying collateral estoppel where in prior decision
appellate court affirmed decision below on alternative grounds,
based upon a failure of proof).
As reflected in the Ninth Circuit's decision, Sopcak
raised the issue of whether the United States was the final
destination and had a full and fair opportunity to litigate that
issue. (EN2) 52 F.3d at 819. While the Ninth Circuit may have
applied a standard different from that employed by the federal
district court, it followed long-established federal precedent.
See, e.g., Petrire v. Spantax, 756 F.2d 263, 265 (2d Cir.), cert.
denied, 474 U.S. 864 (1985); Swaminathan v. Swiss Air Transp. Co.,
962 F.2d 387, 389 (5th Cir. 1992); Lee v. China Airlines Ltd., 669
F. Supp. 979, 981 (C.D. Cal. 1987); Kapar v. Kuwait Airways Corp.,
663 F. Supp. 1065, 1067 (D.D.C. 1987), rev'd in part on other
grounds, 845 F.2d 1100 (D.C. Cir. 1988). Sopcak could therefore
reasonably be expected to have anticipated the necessity of
discovery of the contracts of carriage in opposing Northern
Mountain's federal motion to dismiss, even before the Ninth Circuit
addressed the issue. (EN3)
While we have stated that in an extreme case "the lack of
an opportunity to fully and fairly litigate an issue might preclude
the application of collateral estoppel,"Rapoport, 794 P.2d at 952
(citing Murray v. Feight, 741 P.2d 1148, 1153-56 (Alaska 1987)), we
find no reason to refuse to apply collateral estoppel here. Nor
has there been "an intervening change in the applicable legal
context or otherwise"requiring a new determination. Restatement
(Second) of Judgments sec. 28 (1982) (discussing exceptions to
issue preclusion). See also State v. Baker, 393 P.2d 893, 900-01
& n.35 (Alaska 1964) (discussing analogous exception stated in
Restatement of Judgments sec. 70 (1942)).
The federal litigation ended in entry of judgment on the
merits. The decision of the Ninth Circuit is entitled to full
faith and credit in our courts. We hold that Alaska lacks subject
matter jurisdiction over Sopcak's claims. We consequently do not
reach the issues raised in Northern Mountain's cross-appeal. (EN4)
We AFFIRM the superior court decision dismissing Sopcak's
claims for lack of subject matter jurisdiction.
1. Northern Mountain had twice previously moved to dismiss
Sopcak's state court claims. In its cross-appeal, Northern
Mountain challenges the superior court's refusal to dismiss the
case, arguing that British Columbia law precludes Sopcak from
stating a claim. In the alternative Northern Mountain contends
that the case should be dismissed under the doctrine of forum non
conveniens. Because we affirm the superior court's dismissal for
lack of subject matter jurisdiction, we do not reach the issues
raised in Northern Mountain's cross-appeal.
2. The Ninth Circuit noted:
Four months after [Sopcak et al.] filed their
complaint, [Northern Mountain] raised the
jurisdictional issue. An additional two
months passed before [Northern Mountain] filed
a motion to dismiss for lack of subject matter
jurisdiction. Nearly two months later, rather
than moving for an extension of time to oppose
the dismissal motion, [Sopcak] filed an
opposition which stated in part: "[h]owever,
if the court believes that there is not
sufficient evidence to support plaintiffs'
jurisdictional allegation, plaintiffs
respectfully request an opportunity to conduct
52 F.3d at 819 (last alteration in original).
3. Indeed, Sopcak's memorandum opposing dismissal in the district
court cited cases from the Second Circuit for the proposition that
"[a] long line of cases supports determination of the place of
destination by the contract of carriage."
Moreover, Sopcak's Reply Brief asserts that as of May 1993
Sopcak had, through state court discovery practice, obtained
evidence that no contract of carriage existed between Northern
Mountain and Skyline Gold Corporation. This evidence would have
inferentially supported Sopcak's claim that Wrangell, rather than
Vancouver, was the place of destination. Nonetheless Sopcak did
not attempt to use that information in a Rule 60(b) motion in the
district court or in a request to the Ninth Circuit to remand to
allow a Rule 60(b) motion.
4. Sopcak also contends that collateral estoppel should not apply
because the federal decision was incorrect. We reject that
argument. As we have previously held,
[t]o disregard an out-of-state judgment based
on the conclusion that the sister state court
was incorrect would eviscerate all meaning
from the full faith and credit clause and the
doctrine of collateral estoppel, at least
where the out-of-state judgment is not clearly
in error. To hold otherwise would require a
court to address the merits of the underlying
dispute when deciding the threshold issue of
whether collateral estoppel applies, thereby
defeating the very purpose of the doctrine.
Campion v. State, Dep't of Community and Regional Affairs, 876 P.2d
1096, 1100-01 (Alaska 1994).