A common misconception among practitioners is that the Montreal Convention, in addressing the issue of where lawsuits may be filed against air carriers, confers personal jurisdiction over carriers. In actuality, a plaintiff must establish an independent basis for personal jurisdiction before a case can proceed against a carrier in a U.S. court. Recently, the U.S. District Court for the District of New Jersey confirmed this principle and dismissed a personal injury claim brought by a U.S. resident against a foreign air carrier for lack of personal jurisdiction, holding that the Montreal Convention “does not determine the existence of personal jurisdiction.”1
The plaintiff sought damages for a personal injury he sustained when he fell down the stairs of an aircraft while disembarking a flight which originated in Sweden and landed in Estonia. With regard to jurisdiction, the plaintiff argued that the Court could exercise personal jurisdiction pursuant to Article 33(2) of the Montreal Convention, which permits passengers who are injured in the course of international transportation to litigate in the country where “the passenger has his or her principal and permanent residence.”
In her decision, U.S. District Judge Madeline Cox Arleo determined that Article 33(2) (commonly known as the “Fifth Jurisdiction”) “affords subject matter jurisdiction, not personal jurisdiction.” As such, the plaintiff’s residence in the United States had no bearing on whether the court had personal jurisdiction over the air carrier. Though the Third Circuit Court of Appeals had not previously addressed the scope of Article 33(2) as it pertains to personal jurisdiction, Judge Arleo’s decision aligns with the majority of relevant cases from other circuits, which hold that neither Article 33 of the Montreal Convention, nor the parallel provision from Article 28 of the Warsaw Convention, provide grounds for personal jurisdiction.
The Court rejected the plaintiff’s argument that the more recent Montreal Convention’s inclusion of the Fifth Jurisdiction was meant to create a basis for personal jurisdiction, since none of the numerous legislative documents which stressed the import of Article 33 mentioned personal jurisdiction. Having determined that personal jurisdiction in Montreal Convention cases is derived not from the Convention itself, but from state law, the Court went on to consider whether personal jurisdiction was proper.
The plaintiff argued that the Court had specific personal jurisdiction over the air carrier – that is, limited jurisdiction which requires the defendant to have “purposefully directed” its activities at the forum, and that these activities bore some connection to the plaintiff’s alleged injuries. Judge Arleo found that the second factor was lacking in the instant case, as the plaintiff’s interactions with the carrier occurred “entirely overseas.” Indeed, the subject flight was booked through a foreign travel agency using foreign currency and “carried [the plaintiff] from Sweden to Estonia, where he suffered his alleged injuries.” Further, although the plaintiff contended that jurisdiction was proper based on the carrier’s advertising activities and operation of flights to and from New Jersey, he did not allege that his injury arose from such advertisements or flight operations. Therefore, the Court reasoned, specific jurisdiction did not exist.
Notably, air carriers and other corporations may soon receive additional guidance on key issues surrounding specific jurisdiction – including the degree of business contacts that may give rise to personal jurisdiction, and the requisite causal link between a defendant’s forum contacts and a plaintiff’s claims – once the U.S. Supreme Court reaches a decision in a product liability case currently pending in the Court, Ford Motor Company v. Bandemer.2 One of the primary questions at issue in that case is whether specific jurisdiction may be properly exercised based on a defendant’s advertising and sales activities if the plaintiff’s claims do not arise from those activities.
At present, Judge Arleo’s decision from the District of New Jersey confirms the fact that with regard to air carriers in particular, a plaintiff’s bald allegations concerning a carrier’s operation of flights to and from a forum do not suffice to confer specific personal jurisdiction over the carrier. Moreover, the decision is notable for establishing – for the first time in the Third Circuit – that the Montreal Convention alone does not create personal jurisdiction. As Judge Arleo noted, “[t]he mere existence of the Montreal Convention cannot short-circuit the [personal] jurisdiction analysis and establish constitutionally sufficient contacts in all U.S. courts.”
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1 Davydov v. Scandinavian Airlines System, No. 2:19 Civ. 17628 (MCA) (JAD) (D.N.J. Oct. 5, 2020).
2 Ford Motor Company v. Bandemer, No. 19-369.