Court rejects plaintiff’s “place of destination” argument in subject matter jurisdiction dispute

Baah v. Virgin Atlantic Airways Limited (S.D.N.Y. Feb. 7, 2007).  An infant traveling on a roundtrip ticket from Heathrow to JFK was burned by a hot beverage during the outbound flight.  The infant’s father brought a personal injury action against the airline on his son’s behalf in a New York court, alleging liability under the Montreal Convention.

Virgin Atlantic moved to dismiss on the grounds that the court lacked subject matter jurisdiction under the Montreal Convention.  Pursuant to Article 33 of the Convention, a plaintiff may bring an action in the U.S under the Convention only when the U.S. is (i) “the domicile of the carrier,” (ii) the “principal place of business” of the carrier, (iii) the place where the carrier has a “place of business through which the contract has been made,” (iv) “the place of destination” or (v) the “principal and permanent residence” of a passenger.  (The fifth jurisdictional basis, which does not exist under the Warsaw Convention, is only available in cases involving the death or injury of a passenger.)  Here, the plaintiff’s only shot was that the U.S. was “the place of destination.”

Under the Warsaw Convention, the Montreal Convention’s predecessor, the courts consistently held that “the place of destination” for jurisdiction purposes was the return city on a round-trip ticket.  In this case, the plaintiff argued that the court should ignore the Warsaw opinions because the Montreal Convention is supposedly more passenger-friendly than its predecessor.  The court did not buy the plaintiff’s argument; like other courts have done, it relied on Warsaw opinions in interpreting a similar Montreal provision.  As a result, the court ruled that London was the infant’s “place of destination” and dismissed the case for lack of subject matter jurisdiction.

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