Plaintiffs Lin Yang and Jing Zhang brought a claim against defendant Asiana Airlines, Inc. ("Asiana") to recover damages for personal injuries they allegedly sustained while traveling as passengers on board Asiana Flight 214, which crashed on landing at San Francisco International Airport on July 6, 2013. Asiana moved to dismissed for lack of jurisdiction under Article 33 of the Montreal Convention. Plaintiffs' tickets were issued in Nanjing, China and had the following itinerary:
- Shanghai, People's Republic of China, to Seoul, South Korea on July 6, 2013;
- Seoul to San Francisco, California on July 6, 2013;
- surface travel;
- Los Angeles, California to Seoul on July 20, 2013; and
- Seoul to Shanghai on July 21, 2013.
Plaintiffs did not book a flight from San Francisco to Los Angles because plaintiffs planned to travel to Los Angeles by bus or private car. Pursuant to the Montreal Convention, a passenger must bring a damages action against an air carrier in one of the following five jurisdictions:
- before the court of the domicile of the carrier,
- its principal place of business, or
- where it has a place of business through which the contract has been made, or
- before the court at the place of destination, or
- the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence.
The parties agreed that the "place of destination" for a round-trip flight is the place of origin for the purposes of the Montreal Convention. Plaintiffs argue, however, that they were not traveling on round-trip tickets but rather on "open jaw" itineraries, i.e., one side of the "jaw" being the inbound flight to the United States (Shanghai to Seoul to San Francisco) and the outbound from the United States being the other (Los Angeles to Seoul to Shanghai). Plaintiffs characterized the itinerary as two separate contracts of transportation, the first of which had a "place of destination" in San Francisco for the purposes of the Montreal Convention. Defendant countered that the exclusive "place of destination" for an undivided transportation is the "ultimate destination," which was China. The Court held that, because the plaintiffs purchased a single contract of transportation which provided for transportation by a single carrier issued at the same time and place, with all flights scheduled to occur within a two-week period, it was a "single operation of undivided transportation" and the place of destination was China. The Court found that the fact the scheduled return flight was from Los Angeles and not San Francisco, where the inbound flight arrived, did not necessitate a contrary result.
Plaintiffs also argued that jurisdiction was proper under the "fifth jurisdiction" because the United States became the de facto principal and permanent residence of the plaintiffs following the crash in light of the fact that they remained for three months to receive medical care. The Court rejected this argument noting that plaintiffs cited no authority that residence to receive medical care was sufficient to establish that the United States was the plaintiffs principal and permanent residence. More importantly, the Court found that this residence in the United States was subsequent to the accident. Consequently, the Court granted Asiana's motion to dismiss for lack of treaty jurisdiction.
In re: Air Crash at San Francisco, California, on July 6, 2013, 2017 WL 3484643 (August 14, 2017).
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