April 30, 2019

Court Finds MC’s “Fifth Jurisdiction” Requires Physical Presence by Airline in Forum State

Holland & Knight Aviation Law Blog
Judy R. Nemsick

In Erwin-Simpson v. AirAsia Berhad, __ F. Supp. 3d __, No. 18-cv-00083 (CRC), 2019 WL 1317337 (D.D.C. Mar. 22, 2019), the court dismissed personal injury claims by a passenger and her husband arising from spilled boiling water during a flight from Malaysia to Cambodia operated by Malaysian-based airline AirAsia Berhad (AirAsia). The airline challenged both the court's subject matter jurisdiction under Article 33(2) of the Montreal Convention (MC), known as "the fifth jurisdiction," and personal jurisdiction because the airline had no U.S. presence, did not operate flights to the US.., and did not maintain offices or employees in the U.S.

No Subject Matter Jurisdiction Under Article 33(2)

Under MC Article 33(2), a passenger may bring a personal injury or death action in a forum state where (i) at the time of the accident, the passenger has his or her principal and permanent residence, (ii) the air carrier operates flights on its own aircraft or indirectly on another carrier's aircraft pursuant to a commercial agreement (e.g., code-share agreement), and (iii) the air carrier "conducts its business of carriage of passenger by air from premises leased or owned by the carrier itself or by another carrier with which it has commercial agreements."

Interpreting the second and third prongs, the court agreed with the airline that it must not only operate service to or from the U.S. on its own or indirectly through another carrier, but also must conduct business from some physical location leased or owned by the carrier itself or one through which it has an agreement. Recognizing the dearth of case law on the issue, the Court first examined the text of the MC and concluded that Article 33(2)'s language strongly indicates that there must be a physical presence - either directly or through an agreement with another carrier. Even if another carrier leases or owns the premises, the text still requires that the carrier being sued operate some aspect of its business from those premises. Commentators similarly interpret Article 33(2) as requiring a physical presence.1

The court confirmed its interpretation by examining the ratification history of this provision, which was designed to fill a gap by allowing Americans injured abroad to sue in the U.S. And, while Article 33(2) was designed to "sweep broadly," it is limited by the language requiring a business presence in the forum state. Many developing countries had objected to their carriers being subject to jurisdiction in the U.S. despite conducting no operations to or from the U.S. As held by the court, the "'presence' requirement reflects a compromise between the United States interest in allowing American citizens injured on international flights to sue in the U.S., on the one hand, with other countries' concerns about too broad a jurisdictional reach, on the other."

The court rejected plaintiffs' reliance on an affiliated airline's flight operations to and from Hawaii, finding it was not the "carrier" that operated plaintiffs' flight2 and, in any event, it did not change the fact that AirAsia lacked a business presence in the U.S. Plaintiffs' misreading of Article 33(2) would collapse the second and third prongs, and improperly allow lawsuits against one carrier based on another carrier's business activities in the forum state.

Lastly, the court dismissed the argument that Article 33(2) should be broad enough to treat the carrier's website as "virtual premises" in the U.S. Relying on the treaty's text and negotiation history, the court found that the treaty drafters intended traditional physical premises for the "fifth jurisdiction." The court concluded that "[e]mbracing the theory that a website accessible to Americans suffices for subject matter jurisdiction would stretch the fifth jurisdiction too far." Virtually every airline has a website accessible in the U.S. where tickets may be purchased and to allow such a broad interpretation of premises would "upset the careful political balance" the treaty strikes.

No General Jurisdiction Based on Interactive Website

The court separately determined that it could not exercise personal jurisdiction over the airline because, under Daimler AG v. Bauman's general jurisdiction analysis,3 the use of an interactive website does not make a "corporation's affiliations with the State [] so continuous and systematic as to render [it] essentially at home in the forum State."4 Such a website is accessible throughout the world and there is no basis to presume that the air carrier is more at home in the District of Columbia than elsewhere.5 Although the lack of subject matter jurisdiction alone would have resulted in dismissal, the court nevertheless chose to address the airline's alternative jurisdictional ground of dismissal. As acknowledged by the court, the personal jurisdiction analysis was more "straightforward" than the fifth-jurisdiction analysis given the restrictions imposed by Daimler and the lack of case law interpreting the third prong of Article 33(2) of the MC.


1 See, e.g., 1 Kreindler, Aviation Accident Law § 10.09 (2018) (noting that injured passenger can bring lawsuit in her "place of domicile, assuming the airline operates flights to that jurisdiction and has a physical presence there, either directly or through a code-share partner"); George N. Tomkins, Jr., Liability Rules Applicable to International Air Transportation Developed by the Courts in the United States: From Warsaw 1929 to Montreal 1999 245 (2010) (for Article 33(2) to confer jurisdiction, the carrier must "ha[ve] a specified business presence" in the forum state).

2 Plaintiff also sued AirAsia X, an independent affiliate of Air Asia that operates long haul fights throughout Asia, Australia, New Zealand and the Middle East, and post-accident, to and from Hawaii. Because AirAsia X was a distinct corporate entity and not the "carrier" that operated plaintiff's flight, it could not be liable under the treaty and, therefore, the court dismissed claims against it for lack of subject matter jurisdiction.  

3 Plaintiffs failed to make any specific jurisdiction arguments connecting the airline's activities in the District of Columbia to plaintiffs' injury.

4 571 U.S. 117, 139 (2014). Other facts that would support finding a carrier "at home" in the forum state clearly were not met because the foreign air carrier was incorporated in and had its principal place of business outside the US.

5 The court denied plaintiffs' request for further website discovery to see whether defendant was "at home" in the jurisdiction.

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