Jurisdiction under Warsaw Convention: Ontario Superior Court of Justice stays an action arising out of the international carriage by air

Written on September 11, 2011.

In a recent decision, Ashad v. Deutsche Lufthansa Aktiengesllschaft, the Ontario Superior Court of Justice allowed the airline’s motion to stay the passenger’s action on the grounds that Ontario Courts did not have jurisdiction under the Warsaw Convention.

The plaintiff passenger alleged that he suffered personal injuries when he unintentionally swallowed pieces of shredded glass from a fruit bowl served to him on board the defendant’s flight from Sao Paulo, Brazil to Frankfurt, Germany.

The plaintiff purchased his round trip ticket from Tripoli to Sao Paolo from the defendant’s office in Tripoli, Libya. The return flight to Tripoli was rerouted and a new ticket was issued in Sao Paulo for travel to Tripoli via Frankfurt and Geneva.

The defendant airline was incorporated under German laws with its corporate headquarters located in Cologne. It was served with the plaintiff’s Claim at its Toronto office.

The Court found that Germany was where Lufthansa had its principal place of business and where it was ordinarily resident.  It also found that Lufthansa’s establishment by which the contract was made was either in Brazil or Libya.

Accordingly, the Court held that the only options available to the plaintiff in these circumstances were to bring his action in Germany, Brazil, or Libya.

The Court found no evidence that the plaintiff’s principal and permanent place of residence was Canada at the date of the accident. More significantly, the Court held that the Montreal Convention did not apply because Brazil was not a State Party to this Convention at the date of the accident (note that as of today, Libya is also not a Party to the Montreal Convention). The applicable treaty in this case was the Warsaw Convention.