The United States District Court for the Northern District of California recently dismissed the claims of two passengers injured in the crash of Asiana Flight 214 for lack of treaty jurisdiction under Article 33 of the Montreal Convention. Zhang v. Asiana Airlines, Inc. et. al1 presented an issue of first impression under the Montreal Convention.
Article 33 establishes five specific locations in which jurisdiction exists for claims arising under the Convention. Failure to establish that an action was filed in one of the five specified locations requires a dismissal for lack of treaty jurisdiction.
The five locations in which jurisdiction exists under Article 33 are: (1) the domicile of the carrier; (2) the carrier’s principal place of business; (3) where the carrier has a place of business through which the contract was made, i.e. where the ticket was purchased; (4) the place of destination; or (5) where the injured party has his or her principal and permanent residence.
The Zhang plaintiffs’ primary argument was that they were traveling on “open-jaw” tickets, with the result that the place of “destination” was in California where the accident occurred. An “open-jaw” ticket is one in which the point of arrival on the inbound leg of the journey is different from the point of departure on the outbound leg.
Plaintiffs’ inbound ticket provided for transportation from Shanghai, through Seoul, to San Francisco. The return leg was to depart from Los Angeles, through Seoul, to Shanghai. The plaintiffs spent several months in the United States between the date of the accident and their departure from Los Angeles. They argued that Asiana’s conditions of carriage supported their contention that the “open-jaw” ticket actually constituted two tickets and that California was the point of destination when the accident occurred.
Asiana’s position was that an “open-jaw” ticket constitutes a single contract of carriage regardless of the point of arrival and the point of departure on the inbound and outbound legs. (Asiana’s conditions of carriage actually specified that an “open-jaw” ticket was in the nature of a single round-trip ticket.)
Asiana argued, and the court accepted, that plaintiffs purchased a single contract of carriage which provided for transportation by a single carrier issued at the same time. The court noted that the flights were to be carried out within a specific limited period of time and that the sole place of destination for purposes of the Montreal Convention was the ultimate destination, Shanghai. The court ruled that characterizing the ticket as an “open-jaw” ticket was not dispositive because the parties intended the contract to be a single undivided transportation with only Shanghai as the final destination.
The Zhang plaintiffs also argued that they satisfied the Montreal Convention jurisdictional requirement based on residency. They claimed that their extended stay in the United States after the accident was sufficiently long to establish residency. The court rejected that argument summarily based on the plain language of Article 33 which requires that the residence must be “principal and permanent.”
This is a case of first impression under the Montreal Convention because it is the first in which a court has had to decide whether an “open-jaw” ticket constitutes two different contracts or one undivided contract of transportation, ultimately holding that the issuance of an “open-jaw” ticket was not dispositive of the issue.
1 In Re Air Crash at San Francisco, California, on July 6, 2013, 2017 WL 3484643 (N.D. Cal. August 14, 2017).
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