Asiana Accident Highlights Passenger Rights And Limitations To Recovery

Although Asiana Airlines Flight 214 crashed while landing at the San Francisco International Airport, contrary to simple logic, lex loci delicti may not be applicable and the United States may not be a forum for all passengers to bring a case against the airline. In cases wherein a claim may not be brought against the carrier in the United States under the provisions of the Montreal Convention, a passenger may wish to consider other avenues of recovery. Historically, these have included claims against aircraft and aircraft component manufacturers, airport operators and pilot training facilities. In each of the foregoing, it should be proven that adequate ties exist which points to the United States courts as the most convenient forum where the case may be filed and heard.

Under the Montreal Convention for the Unification of Certain Rules for International Carriage by Air (the “Montreal Convention”), a treaty superseding the Warsaw Convention, which the United States ratified on July 31, 2003, any one of the following basis for jurisdiction should be present before jurisdiction may be acquired by the US court, namely: (1) domicile of the carrier; (2) the “principal place of the business” of the carrier; (3) the place where the carrier has a “place of business through which the contract has been made; (4) “the place of destination”; or (5) the “principal and permanent residence” of the passenger.” Art. 33, Montreal Convention, as quoted in Baah v. Virgin Atlantic Airways Ltd., 473 F.Supp.2d 591 (2007).

Thus, as held by the Adjoyi, et. al. v. Federal Air (Pty) Ltd., 137 F. Supp.2d 498 (2001), federal district courts have no jurisdiction over Warsaw Convention (now Montreal Convention) claim unless air carrier’s domicile or principal of business is in the United States, the carrier has place of business through which contract for passage was made in the United States, or that the United States is the place of destination of flights. Applying the foregoing to the recent crash, it is clear that only the third, fourth or fifth basis (added by the Montreal Convention) would allow a claim to be filed in the United States, to wit, where the ticket was purchased in the United States, or that the United States was indicated as the ticket’s final destination or where the passenger is a resident of the United States, regardless of where the ticket was purchased or its destination is. Otherwise, a case filed with the US courts may be dismissed for want of jurisdiction.

In addition to the foregoing, Article 17 of the Montreal Convention provides that a carrier is liable only when death or injury took place on board the aircraft or in the course of the operations of embarking or disembarking. It likewise provides that for death or bodily injury claims, the carrier cannot exclude or limit its liability if damages do not exceed 100,000 special drawing rights. Article 21 of the Montreal Convention. Furthermore, a carrier may not be liable for any claims in excess of the said amount, should the carrier prove that damage was not due to the negligence or wrongful act or omission of the carrier or its agents and employees, or that the damage was due to negligence or wrongful act or omission of a third party. Id.