Introduction
In order to determine in which jurisdiction to commence an action
for damages in claims relating to carriage of persons and cargo by
air, two levels of jurisdiction have to be determined namely: the
Treaty Jurisdiction and the Local or National Jurisdiction.
Treaty Jurisdiction
It is the law that where a domestic or Common Law right has been
enacted into a statutory provision, a passenger must resort to the
statutory provision, not the domestic or Common Law position. The
statutory provision in this case is the Convention for the
Unification of Certain Rules Relating to International Carriage by
Air, Montreal 1999 (the "Montreal Convention"),
domesticated by the Civil Aviation Act, CAP C13, Laws of the
Federation of Nigeria, 2004 (as updated to 2010).
Hence, such passenger's claim for damages must be in accordance with and subject to the terms and conditions of the Montreal Convention and, cannot be pursued under any other law. See Cameroon Airlines v. Abdulkareem [2003] 11 NWLR (Part 830) 1.
Accordingly, a passenger in an action brought pursuant to the
Montreal Convention has the choice of commencing an action in the
territory of a State Party, in one of the 4 jurisdictions stated
below, namely:-
a. The domicile of the carrier, which refers to the place where the
carrier was incorporated.
b. The principal place of business of the carrier. This refers to
the place where the carrier has its headquarters.
c. The place of business through which the contract was made. This
is either where the ticket was purchased or where the
passenger's ticket was issued.
In Berner v. United States Airlines Inc., 157 N.Y.S 884 (1956): 170
N.Y.S. 2d 340, it was held that the establishment by which the
contract was made does not have to be owned by the carrier. It may
be that of a general sales agent who carries on the carrier's
business in the country in question. A contract may also be made by
an establishment, where such establishment has played a part in the
meeting of minds of the parties.
d. The Court at the place of destination. The passenger's ticket determines the place of destination. A one-way ticket holds no difficulty in determining the place of destination as, the place of destination will obviously be the destination of the flight from its take-off point.
In respect of a round-trip ticket, it had been held that the
place of destination is the place of departure of the aircraft. The
United States Appellate Court, stated in Jones v. USA 3000
Airlines. 33 Avi. 17,442 (E.D.Mo. 2009), that the place of
destination in a roundtrip ticket is the same as the place of
origin of the trip. Thus, in a roundtrip ticket, the destination is
the point of origin of the journey.
See also the Ruling in FHC/L/CS/439/17 – Miss Adebukola
Tolulope Ogundokun v. Turkish Airlines (Unreported) delivered on 9
March, 2018 by Idris J.
In Mertens v. Flying Tiger Line Inc., 341 F.2d 851 (2d Cir) 382 U.S. 816 (1965), the United States Court of Appeal defined the word "place" as "State," that is to say, country and not a "place" within a State or a country. For instance, an action can be brought anywhere in Nigeria, where the carrier has a jurisdictional presence in terms of Nigerian law sense.
Conclusion
In order to maintain a competent suit and avoid suing in a wrong
jurisdiction, an action for damages against a carrier must be
commenced by a passenger in one of the above places or
jurisdictions, in line with the applicable law.
It must also be mentioned that the Montreal Convention refers to a
"fifth jurisdiction." The fifth jurisdiction is one of
the most significant provisions birthed by the Montreal Convention.
In this jurisdiction, an action for damages for a passenger's
bodily injury or death may be brought 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.
The fifth jurisdiction, as well as the Local or National
jurisdiction, shall be further discussed in our subsequent
Newsletter.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.