Court Rules on “Principal and Permanent Residence” Under MC Article 33
In personal injury or death cases, Article 33 of the Montreal Convention provides five jurisdictions in which an action against the airline can be brought: (1) an air carrier’s place of domicile; (2) an air carrier’s principal place of business; (3) the place of contract; (4) the place of destination; and (5) the passenger's "principal and permanent residence," which is defined as “the one fixed and permanent abode of the passenger at the time of the accident." Art. 33 (3)(b). Courts in the US have interpreted the "fifth jurisdiction" as akin to domicile, requiring an evaluation of the objective facts surrounding the alleged residence and the plaintiff’s subjective intent to remain in that residence.
In Choi v. Asiana Airlines, 2015 WL 394198 (N.D. Cal. Jan. 29, 2015), a California district court analyzed a passenger’s alleged claim of US permanent residence at the time she sustained injuries as a result of severe turbulence during a flight from Hawaii to Korea. Plaintiff contended that, at the time of the incident, she was a US permanent resident, had at one time owned property in Hawaii, and subjectively intended to make the US her official residence. The objective facts revealed a different story. Plaintiff spent, at most, 8 weeks of the year in the US and lived and worked in Korea for the remainder of the time. She maintained a residence in Korea since 2002, and never stayed at a single US address for more than a year or two and, even then, was physically present for only a few weeks. She had been employed in Korea since 2004, and stayed with family and friends during her visits to the US. While she possessed a California driver’s license, a Social Security card and bank accounts in the US, the overwhelming evidence demonstrated that she was not a US resident. Nor could her son’s presence and education in the US or the homes of her friends and family be attributed to her residence.
Unlike Hornsby v. Lufthansa German Airlines, 593 F. Supp. 2d 1132, 1137-39 (C.D. Cal. 2009) and In re Air Crash Over Mid-Atlantic on June 1, 2009, 760 F. Supp. 2d 832 (N.D. Cal. 2010) − cases where courts found that the US citizens had established residences in the US and were temporarily living overseas, the facts in Choi reflected the complete opposite – a Korean national with permanent residence in Korea who temporarily visited the US.