Defendants Attempt to Limit U.S. Jurisdiction in International Aviation Cases
Aviation Law columnists Steven R. Pounian and Justin T. Green write: A major goal of the Montreal Convention was to expand the jurisdiction provisions of the Warsaw Convention to provide victims of international aviation disasters up to five jurisdictions in which to bring their lawsuits. Airlines have recently attempted to restrict these choices.
November 15, 2017 at 02:45 PM
10 minute read
A major goal of the Montreal Convention was to expand the jurisdiction provisions of the Warsaw Convention to provide victims of international aviation disasters up to five jurisdictions in which to bring their lawsuits. Airlines have recently attempted to restrict these choices. In a recent decision, a district court rebuffed an attempt by Germanwings, a foreign air carrier, to avoid jurisdiction in the United States even though the carrier had authorized another airline to sell in the United States the Germanwings tickets on which the victims were traveling. A second rising issue is whether the Foreign Sovereign Immunities Act (FSIA) may protect foreign government owned airlines from subject matter jurisdiction in the United States even where subject matter jurisdiction is proper under the Montreal Convention.
Subject Matter Jurisdiction Under the Montreal Convention. The Montreal Convention is the successor to the Warsaw Convention. See Convention for the Unification of Certain Rules for International Carriage by Air Concluded at Montreal, 2242 U.N.T.S. 309, S. Treaty Doc. No. 106-45; Convention for the Unification of Certain Rules Relating to International Transportation By Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876. The Warsaw Convention provided four jurisdiction choices to a plaintiff: where the air carrier was domiciled, where the air carrier has its principal place of business, where the air carrier has a place of business through which the contract for carriage (the ticket) was made, and the passenger's destination. Id., Art. 28. The drafters of the Montreal Convention created a “fifth jurisdiction” as a way to cure the perceived injustice of injured parties not having the ability, under the Warsaw Convention, to bring suit in their own home jurisdiction. Montreal Convention, Art. 33.2. The “fifth jurisdiction” is the passenger's “principal and permanent residence” at the time of the accident if the carrier operates to the jurisdiction and has a physical presence in the jurisdiction. Id.
Defendants have recently attempted to limit the ability of plaintiffs to take advantage of the jurisdiction choices provided by the Montreal Convention by arguing (1) there is no personal jurisdiction in the United States; and (2) that where the carrier is government owned, jurisdiction under the Montreal Convention is meaningless if plaintiff is not able to also satisfy the FSIA subject matter jurisdiction requirements.
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