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Warsaw Convention, Article 28 Jurisdiction, Reprise
Published in the November 2009 issue of Transportation Notes - View Article
In the last issue of Transportation Notes, we reported on a series of decisions (Strugarova v. Air France) involving several problematic determinations in relation to Article 28 of the Warsaw Convention.
In another recent decision, a judge of the Superior Court of Justice of Ontario declined to follow Strugarova on the issue of “attornment”. The decision we refer to as Strugarova 1 held that the concept of attornment to jurisdiction by the mere filing of a defence is applicable to a defendant served within the jurisdiction. We believe there is no good precedent for this idea and are pleased to report it was not followed in this case of Ahshad v. Lufthansa.
Mustafa Ahshad was ticketed to travel from Tripoli, Libya on a round trip itinerary with stops in Frankfurt, Caracas and Sao Paulo. The return trip from Sao Paulo was modified to include travel to Tripoli via Frankfurt and Geneva. The plaintiff sought damages for an injury sustained on the return flight from Sao Paulo to Frankfurt. The plaintiff alleged he was served a fruit bowl containing pieces of shredded glass that he swallowed during the course of the flight.
Lufthansa maintained that the carriage was governed by the Warsaw Convention as the ticket was from and to Libya and Libya is not a signatory to the Montreal Convention. Canada was not among the jurisdictions specified in Article 28. At no time was the destination Canada and it was undisputed that Lufthansa is ordinarily resident and has its principal place of business in Germany. As well, the plaintiff admitted that he purchased his original ticket at a Lufthansa office in Tripoli.
The plaintiff’s preliminary argument was that there was no “accident” within the meaning of Article 17 of the Warsaw Convention and thus, the action is governed by the common law. The judge applied the U.S. Supreme Court case of Air France v. Saks, 470 U.S. 392 and the Ontario cases that follow it and held that the facts alleged in the claim fall squarely within the construction of the word “accident” as found in Saks. The judge noted that while there are two lines of cases concerning the effect of the Convention remedy, one favouring a theory of “strong exclusivity” and the other favouring a theory of “weak exclusivity”, ultimately both lines of cases support the principle that where the Convention provides a remedy for the harm suffered, the Convention remedy applies exclusively.
The plaintiff also contended that when his return itinerary was amended in Sao Paulo, a new ticket was issued for travel. The accident took place on the Brazil to Germany segment and thus, it was argued, the Montreal Convention applied. Jurisdiction could be found in Canada by reason of Ahshad’s residency in Ontario. The judge held that there was no evidence that the plaintiff was a resident of Ontario at the time of the accident. More importantly, it was held that even if a new ticket was issued in Brazil, and regardless of the place of destination, the Montreal Convention did not apply as Brazil was not a State Party to the Montreal Convention at the time of the accident. The judge relied on the Vienna Convention on the Law of Treaties and the case of Erlich v. American Airlines Inc., 360 F.3d 366 for the principle that the Montreal Convention cannot be applied retroactively.
As previously noted, the judge rejected the plaintiff’s argument that Lufthansa was precluded from disputing jurisdiction on the basis that it had “attorned” to the jurisdiction of Ontario by filing a defence. The plaintiff relied on the Strugarova decisions which the judge declined to follow. In the Strugarova decision, Justice Roberts held that she was bound by the Court of Appeal decision in M.J. Jones Inc. v. Kingsway General Insurance Company, [2004] O.J. No. 3286 (C.A.) which held that filing a statement of defence amounts to attornment. The judge in Ahshad noted that the principle applied in M.J. Jones follows long-standing authority which holds that where a foreign defendant which has been served ex juris litigates the merits of the case by filing a defence, it will be taken to have attorned to the jurisdiction. The judge noted that the Ontario Court of Appeal case of Charron v. Montreal Trust Co., [1958] O.R. 597 (C.A.) established the principle that the concept of attornment does not apply to a defendant served within the jurisdiction. In such a case, the Ontario court already has jurisdiction over that defendant by reason of presence within the jurisdiction. The judge expressed the view that territorial jurisdiction, whether established by reason of presence in the jurisdiction or attornment, would not create jurisdiction over all subject matters that a litigant may wish to bring before the court; parties cannot confer subject matter jurisdiction on the court by filing a defence. The judge agreed with the reasoning adopted in the case of Maijala v. Pan American World Airways, [1992] O.J. No. 4187 which includes the statement that “where jurisdiction is governed by a Treaty enacted into Canadian law, the principles of attornment which apply under private international law cannot prevail over explicit statute law.” Finally, with respect to any waiver of the right to contest jurisdiction by virtue of conduct, the judge concluded that there was no evidence that Lufthansa conducted itself in any way prejudicial to the plaintiff’s position. The judge noted that the plaintiff waited until two days before the expiry of the limitation period to issue an action and that the claim was served after the expiry of the limitation period. Nothing Lufthansa did could have any impact on the limitation issue. The action was stayed and costs of $15,000 were awarded to Lufthansa.
Ahshad v. Lufthansa
08-CV-353033802, 20091120.