Air Claims

The Montreal Convention provides five jurisdictional bases where a claimant/plaintiff can bring a court case, these are:

1. The domicile of the carrier (The country/state where the airline is based, or operates from, such as the airport of departure).
2. The country/state where the passenger’s permanent residence is, or was, at the time of the incident.
3. The country/state where the carrier has its principal place of business (the airline’s head office, or registered office).
4. Where the contract was made (for example, where the passenger bought their ticket). If bought on the internet this could be where the ticket agent is based, USA for example!).
5. The place of destination (where the flight was going to).

This information can be viewed in it’s original wording under Article 33 of the Montreal Convention – Jurisdiction.

Why is it more advantageous for a passenger to sue an airline in the USA?

In the unfortunate event of injury or death of a passenger, it is more advantageous to sue in the American courts as the US legal system offers wider options to a claimant/plaintiff than most other countries. This includes the opportunity to have the damages awarded by a judge and a jury, and as a jury is made up of ordinary citizens, they are more likely to sympathise with the claimant’s/plaintiff’s situation. This substantially improves the chances of the claimant/plaintiff being awarded a high value verdict if their claim is successful.

The US court system is known to award much higher amounts of compensation than most other countries. Damages awarded in the US are likely to also include medical expenses, loss of earnings, compensation for past, present and future pain and suffering, including mental injury flowing from the injury, not the actual incident.

If the answer to any of the five points within Article 33, is the USA, then it is best to bring a court case in the USA. In the event of death, then a relative can bring a court case against the airline, this could be a parent, grandparent, brother, sister, aunt, uncle, cousin, in-law etc, etc., the first choice should be a family member who is a US citizen, or who has residency in the USA.

For obvious reasons of monetary risk, the airline will attempt to have the case moved to another jurisdiction other than the USA, on the grounds of forum non conveniens. They can try but the fact remains that the choice of jurisdiction is the absolute right of the claimant/plaintiff under Article 33 of the Montreal Convention, see Hosaka v. United Airlines. Your attorney will usually be able to express additional good reasons to the USA court why the case should remain in that territory. Excellent reasons include the fact that access to important documents and information held by the airline is usually easier to obtain in the USA than in many other countries. An additional reason, but not the sole reason, to have the case heard in the USA could also be that the aircraft manufacturer is based there and your attorney may wish to name the manufacturer as a second defendant, especially in the case of a major accident.

MontrealConvention.org is currently in the process of compiling a list of “contingency fee”/ “no win, no fee” lawyers in the USA who specialise in air claims on behalf of the public.

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