Journal of Air Law and Commerce


The rapid growth of global air travel in the mid-20th century gave rise to the problem of the “wandering American”—American residents whose air travel injury claims could not be heard in United States courts under the Warsaw Convention’s Article 28. Prominent cases prompted adoption of a “fifth jurisdiction” in the Montreal Convention’s Article 33, allowing injury suits in the Contracting State where an injured passenger had her “principal and permanent residence” so long as the international carrier served the forum. U.S. officials toasted their success in providing Americans with a domestic forum, but the adoption of the fifth jurisdiction did not finish the job. Even if an American plaintiff meets Article 33’s requirements, personal jurisdiction problems can bar the courthouse door. This article re-examines the problem of the “wandering American” and the fierce debates over the fifth jurisdiction at the 1999 International Conference on Air Law in Montreal through the lens of personal jurisdiction. It argues that the Montreal Convention would likely not have changed the results of prominent “wandering American” cases such as the shoot-down of Korean Air 007 or the hijacking of Air France 139. It comments on how the law is rapidly evolving as federal courts wrestle with whether Federal Rule of Civil Procedure 4(k)(2) can better address the lack of “minimum contacts” carriers have with most U.S. states and the lack of causal connections between forum and claims. Finally, it considers how Congress or American aviation authorities can better align Montreal’s promise of a “fifth jurisdiction” with American jurisdictional law.



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