Malaysia Airlines Flight 370 is still missing. Before filing any lawsuits, the families of those missing would certainly prefer to know what happened. But with a strict two year statute of limitations set to expire tomorrow, the families have to file suit now or never. So it’s not surprising that a flurry of lawsuits are being filed around the world.
The Montreal Convention controls any lawsuits filed against Malaysia Airlines. It allows suit to be filed against an airline in a U.S. court only if either:
- The passenger's ticket was issued in the United States;
- The passenger's journey was a round trip that started in the United States or was a one-way trip that ended in the United States;
- The airline is incorporated in the United States;
- The airline's principal place of business is in the United States;
- The United States was the passenger's permanent residence.
Most of the passengers were Chinese, so, as expected, a number of families filed suits today in Beijing Court. Many more filed in Malaysia.
But at least 45 plaintiffs joined in a suit filed in California federal court in a case entitled Zhang v. Malaysia Airlines Berhard. At first blush, it wouldn’t appear that the plaintiffs can meet the Montreal Convention’s prerequisites for obtaining jurisdiction in the U.S. For example, the passengers weren’t U.S. residents, nor is the airline’s principal place of business in the U.S. So what’s the justification for filing here?
The plaintiffs allege that jurisdiction is proper in the U.S. because the airline is now legally “dead.” When the person liable is dead, the Montreal Convention allows the family to sue those representing the dead entity’s estate. Plaintiffs allege that, in this case, the entity now representing the dead airline’s estate is its insurer, Allianz Global, and that Allianz maintains offices in the United States.
[A]n action lies against Allianz after [Malaysia Airlines] was rendered defunct and dead and an action lies against those Defendants as would lie against [the airline].. . .. Defendant Allianz maintains its principle places of business in three locations in California and six other locations.
Certainly, a novel argument for access to the U.S. court system. Expect Allianz to challenge U.S. jurisdiction almost immediately.