Lloyd's Maritime and Commercial Law Quarterly
THE PEOPLE EX RET. AIR FRANCE V. LOUIS J. GILIBERTO
Neil R. McGilchrist
M.A. (Oxon.), Barrister.
In the November, 1978, issue of this journal consideration was given to the relative ease with which foreign plaintiffs might obtain jurisdiction before courts in the United States for the hearing of actions arising out of international aircraft accidents.
Particular reference was made to a case before the State Courts of Illinois in which the claimants were attempting to extend yet further the boundaries of the governing procedural principles. The facts concerned the hijacking to Entebbe in June, 1976, of an Air France Airbus flying from Tel Aviv to Paris via Athens. Suits alleging personal injury and emotional distress had been brought before the courts of Cook County against Air France, Singapore Airlines and Gulf Air by passengers, none of whom were U.S. citizens.
The Supreme Court of Illinois, per Ward, C.J., has now delivered its opinion on the various questions at issue, and, since access to Cook County jurisdiction has been finally denied to the passengers, the reasons for the decision are of especial interest.
By way of background it is important to recognise that while Air France was the actual carrier of the passengers under contracts of carriage governed by the Warsaw Convention, the two other defendant airlines were only involved by virtue of having carried the hijackers to Athens where they boarded the Airbus. Thus, the actions against Air France arose under the contracts of carriage but the claims against Singapore Airlines and Gulf Air were founded upon allegations of negligence in tort. Air France had moved the dismissal of itself from the case on the grounds that the Warsaw Convention at art. 28 (1) clearly provided that:
“An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination”.
The plaintiffs asserted that Air France was effectively domiciled in Cook County, Illinois, in view of the very substantial amount of business which it conducted within the jurisdiction. In the alternative it was pleaded that Air France could not in any event rely on art. 28 since the attention of the passengers had not been specifically drawn in their tickets to the limitations placed by the Warsaw Convention on fora for the litigation of claims.
The first argument was swiftly disposed of by the court.
“The meaning of domicile cannot be so extended”
declared Ward, C.J.
“The domicile of a corporation is customarily regarded as the place where it was incorporated, and the courts have given that meaning to the term as it is used in Article 28 (1) of the Convention … The plaintiff’s theory would at a minimum blur … carefully drawn distinctions by creating a third intermediate category. It would obviously introduce uncertainty into litigation under the article because of the necessity of having to determine, and without standards or criteria, whether the amount of business done by a carrier in a particular country was ‘regular’ and ‘substantial’. The plaintiff’s request to adopt this basis of jurisdiction is in effect a request to create a new jurisdictional basis for the Convention”.
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