DAMAGES IN CARRIAGE BY AIR: HOW TO AVOID SUING IN THE
By Allen Ikumawoyi
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.
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  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.
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.