JURISDICTION: WHY CHOOSING THE RIGHT FORUM REALLY DOES MATTER

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1 European Air Law Association 11 th Munich Liability Seminar JURISDICTION: WHY CHOOSING THE RIGHT FORUM REALLY DOES MATTER Marc S. Moller April 28, 2017

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3 CONSIDERATIONS Who will represent the client? Cultural issues Choice of law Judge or Jury in U.S. Mediation Proof issues Convenience Duration of Proceedings Likely Outcome

4 Germanwings Flight 9525 March 24, 2015

5 Malaysia Airlines 370 March 8, 2014

6 Asiana Airlines Flight 214 July 6, 2013

7 MONTREAL CONVENTION 1999 Preamble THE STATES PARTIES TO THIS CONVENTION CONVINCED that collective State action for further harmonization and codification of certain rules governing international carriage by air through a new Convention is the most adequate means of achieving an equitable balance of interests;

8 JURISDICTION MC-99 Article 33.1 An action for damages must be brought, at the option of the plaintiff, in the territory of one of the State Parties, either before the court of the domicile of the carrier or of business through which the contract has been made or before the court at the place of destination.

9 Article 33.2 In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.

10 Article 33.3 For the purposes of paragraph 2, a) commercial agreement means an agreement, other than an agency agreement, made between carriers and relating to the provision of their joint services for carriage of passengers by air; b) principal and permanent residence means the one fixed and permanent abode of the passenger at the time of the accident. The nationality of the passenger shall not be the determining factor in this regard.

11 Article 33.4 Questions of procedure shall be governed by the law of the court seised of the case.

12 For Cases Brought In EU Country Courts e.g., Germanwings

13 ROME II JULY 11, 2007 Article 3 Universal application Any law specified by this Regulation shall be applied whether or not it is the law of a Member State.

14 Article 4 Choice of Law General rule 1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.

15 2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply. 3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a preexisting relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.

16 ROME I JUNE 17, 2008 Article 5.1 (Choice of Law) Contracts of carriage 1. To the extent that the law applicable to a contract for the carriage of goods has not been chosen in accordance with Article 3, the law applicable shall be the law of the country of habitual residence of the carrier, provided that the place of receipt or the place of delivery or the habitual residence of the consignor is also situated in that country. If those requirements are not met, the law of the country where the place of delivery as agreed by the parties is situated shall apply.

17 Article To the extent that the law applicable to a contract for the carriage of passengers has not been chosen by the parties in accordance with the second subparagraph, the law applicable shall be the law of the country where the passenger has his habitual residence, provided that either the place of departure or the place of destination is situated in that country. If these requirements are not met, the law of the country where the carrier has his habitual residence shall apply.

18 Article Where it is clear from all the circumstances of the case that the contract, in the absence of a choice of law, is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply.

19 WHAT DIFFERENCE DOES JURISDICTION MAKE?

20 For example, wrongful death damage cases in Germany and The Netherlands allow for recovery of material damages, i.e., pecuniary loss, but essentially no non-pecuniary loss damages.

21 France allows compensation for Material Damage and nonpecuniary loss for grief and sorrow.

22 Malaysia allows recovery in wrongful death cases for pecuniary or material loss, but for all intents essentially nothing (10,000 MYR = $2,500) for non-pecuniary losses. Calculation Methodology: For victims under 30 years, 2/3 of annual income for 16 years For victims 30 years and older 2/3 of annual income to age 55 divided by 2

23 China allows recovery for wrongful death pecuniary losses to a victim s relatives based upon survivors ages. However, the annual income of the decedent used to calculate loss is deemed to be the average annual income of wage earners in the community in which the victim resided. I.E., Shanghai average annual income is +/- $10,000. Calculation Methodology: 2/3 of annual income x years to estimated retirement age; cost of living taken into account.

24 Mexico allows for recovery of both pecuniary and non-pecuniary losses.

25 Australia allows for recovery of damages for pecuniary loss, but not non-pecuniary losses sustained by family members except if medically confirmed mental shock is proved. The state of Victoria caps recoverable damages.