JurisdictionUnited States
Publication year2021

§ 2A.03 Jurisdiction and Other Procedural Problems [1] "International Transportation by Aircraft

for Hire" Defined

Litigation to which the Warsaw and Montreal Conventions apply generally comes under the headings of physical injury, flight delays, and baggage claims within the context of "international transportation" or "international carriage." The Warsaw Convention provides:

". . . any transportation in which, according to the contract made by the parties, the place of departure and the place of destination . . . 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 . . . authority of another power, even though that power is not a party to this convention." 170

The Montreal Convention provides:

". . . the expression international carriage means any carriage in which according to the agreement between the parties, the place of departure and the place of destination . . . are situated either within the territories of two State parties, or within the territory of a single State party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of an State is not international carriage for the purposes of this Convention . . . Carriage to be performed by several successive carriers is deemed, for the purposes of this Convection, to be one undivided carriage if it has been regarded by the parties as a single operation. . . ." 171

These two provisions have been interpreted as "substantially similar."172

Determining whether a particular case falls within the confines of the Warsaw and Montreal Conventions is dependent on these definitions. Accordingly, both the air carrier and the passenger must intend that the air transportation be international in nature.173 Thus, a named plaintiff in a class action may not bootstrap a claim under the Montreal Convention based on the claims of uncertified, potential class members.174 Notwithstanding that passengers may contract directly with a tour operator for travel on a third party airline, it has been held that the Warsaw Convention applies to charter air transportation and charter tours.175

[2] Preemption

Even if the Warsaw and Montreal Conventions are applicable to a given case, a plaintiff may institute an action in either federal or state court under appropriate domestic law.176 Depending on the nature of the case, the defendant airline would be categorized as a common carrier if personal injuries are being alleged, or a bailee if the nature of the suit had to do with cargo or baggage.177 There is no requirement that the Warsaw or Montreal Convention be alleged, and the carrier, if it so desires, may choose to defend on the basis of common law and statutory defenses, such as contributory neg- ligence,178 assumption of the risk,179 and contractual disclaimers.180

However, the likely reaction of an international air carrier sued in state court would be either to remove the case to federal court on the grounds of federal question juris- diction,181 or continue to litigate the action in state court but assert federal law in the guise of the Warsaw or Montreal Convention.182 In either situation, the air carrier may properly assert that the Warsaw or Montreal Convention183 preempts common or statutory law regarding the rights, responsibilities and liabilities of the parties.184

Although most courts agree on the preemption of the Warsaw Convention over local law, there was some disagreement over whether the Warsaw and Montreal Conventions provide the exclusive and only remedy for injured passengers with some courts so holding185 while others do not.186 The U.S. Supreme Court in El Al Israel Airlines, Ltd. v. Tseng,187 a case involving personal injuries arising from an air carrier's security search of a passenger prior to boarding an international flight, seemed to resolve this dispute on the side of exclusivity.

"So read, Article 24 precludes a passenger from asserting any air transit personal injury claims under local law, including claims that fail to satisfy Article 17's liability conditions, notably, because the injury did not result from an 'accident.' "

It is not only an air carrier that can claim the protection of the Warsaw or Montreal Convention, for it may be advantageous for an injured plaintiff to initially bring the action on the basis of the Conventions. The federal courts are open to passengers asserting rights under the Conventions who are seeking redress for claims involving physical injuries,188 lost, destroyed or stolen baggage,189 or flight delays.190

Whether the Warsaw or Montreal Convention is asserted as a defense or asserted as a basis for liability, once invoked, it preempts all other law defining the rights, responsibilities and liabilities of the parties unless, and to the extent that, the Convention itself provides for the application of local law. For example, the Conventions provide that issues of contributory negligence191 and willful misconduct192 are to be governed by local law. Similarly, the Conventions allow local law to govern courtroom procedure,193 provide that time limitations concerning the action be controlled by local law,194 and, to the extent the kind and amount of damages are limited by the Conventions, permit the nature and quality of recoverable damages to be determined pursuant to local law.195 At least one court has held that common law alter ego and joint venture liability theories may be pursued under the Montreal Convention.196

The comparison between United States common or statutory law and the rules under the Warsaw or Montreal Convention reveals two separate and different frameworks for resolving liability and damage issues in cases involving "international transportation . . . by aircraft for hire." If either the plaintiff or defendant invokes the Warsaw or Montreal Convention, then regardless of whether the action is being heard in state or federal court, the court must apply the Convention as the sole and exclusive authority defining the rights, responsibilities and liabilities of the parties.197

[3] Jurisdiction, Venue and Forum Non Conveniens Determining the proper forum in which a plaintiff may bring an action under the Warsaw or Montreal Convention involves issues of venue, subject matter and in personam jurisdiction, and whether there may be a more appropriate forum in which the case should be heard. 198

The Conventions identify the places where an action may be brought as (1) the carrier's domicile,199 (2) the carrier's place of business, (3) the place of business where the contract of carriage was entered into,200 and (4) the place of destination.201 The Montreal Convention "provides that a fifth basis for jurisdiction is, in certain situations, the state of principal and permanent residence of the passenger."202 It has been held, however, that "contribution and indemnification claims between manufacturers and carriers" are not covered by the Warsaw Convention.203 Once it has been established that an action can be brought within a given nation,204 local rules govern as to what constitutes a proper forum for the purpose of in personam jurisdiction. Within the United States, the in personam jurisdiction of a given court will depend on the nature and extent of the contacts of the air carrier with the selected forum.205 However, to the extent a forum selection clause would limit plaintiff's venue choices, it is null and void.206

Aside from issue of jurisdiction, there is also the question of whether the forum and venue207 chosen by the plaintiff is a "convenient" one to hear the action. The doctrine of forum non conveniens is frequently raised in international travel litigation208 due to the many points of contact, not only from the flight itself, but from factors like ticketing arrangements, place of contract, and domicile and place of business of the parties.

In determining whether an action should be dismissed for forum non conveniens, the courts have applied a balance of hardship test, weighing the burden to the defendant and to the court in hearing the action against such possibilities as the plaintiff having no other forum in which to bring the action and plaintiff's interest in selecting the original forum.209 In addition, several lawsuits arising from air accidents may be centralized in one court by the Judicial Panel on Multidistrict Litigation.210

[4] Application to Employees, Agents and Tour Operators

The Warsaw Convention expressly limits the liability of a "carrier," but nowhere in the treaty is that term defined. This gave rise to the argument as to whether servants or agents of a carrier, sued as individuals, could invoke the liability limits of the Convention when sued as individuals. The courts have held that the liability limitations of the Warsaw Convention nevertheless apply to the servants and agents, including independent contractors, and, perhaps alter egos and joint ventures211 of an air carrier,212 but may not apply to successive carriers.213 The Montreal Convention specifically applies to carriers, servants214 and tour operators.215

It also appears that tour operators which act as air carriers are covered by the Warsaw Convention.216 However, if the tour operator is an independent entity, there may be a basis for circumventing the Warsaw Convention by focusing on the tour operator. Federal regulations governing tour operator charters217 appear to permit the tour operator to disclaim liability for personal injury or property damage caused by an air carrier.218 This would, no doubt, allow the air carrier to rely on the liability limitations of the Warsaw Convention.219 However, this provision does not allow the tour operator to escape...

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