[00:00:00] Speaker 02:
Case number 19-7034, Mary Irwin Simpson and Kevin Simpson, Appellants, versus Air Asia Burhardt and Air Asia X Burhardt.

[00:00:09] Speaker 02:
Ms.

[00:00:10] Speaker 02:
Durie for the appellants, Ms.

[00:00:11] Speaker 02:
Robertson for the appellees.

[00:00:14] Speaker 00:
Good morning, counsel.

[00:00:15] Speaker 00:
Ms.

[00:00:15] Speaker 00:
Durie, please proceed when you're ready.

[00:00:18] Speaker 04:
Good morning.

[00:00:19] Speaker 04:
May it please the court.

[00:00:20] Speaker 04:
My name is Amanda Durie, and I represent the appellants, Mary Irwin Simpson and Kevin Simpson, in this appeal against Air Asia Burhardt.

[00:00:28] Speaker 04:
Ms.

[00:00:29] Speaker 04:
Simpson was traveling on an international AirAsia Burhard flight in May of 2016 from Malaysia to Cambodia when a flight attendant spilled hot water on her.

[00:00:39] Speaker 04:
The pain from the burns was so intense that she fainted in the bathroom.

[00:00:43] Speaker 04:
AirAsia flight attendants then continuously dropped her as they attempted to move her around the aircraft.

[00:00:48] Speaker 04:
She spent 10 days in a Cambodian hospital and later sought treatment in the United States, her principal and permanent place of residence, after being forced to cancel the remainder of her trip.

[00:00:59] Speaker 04:
AirAsia Burhard is an air carrier based out of Malaysia.

[00:01:02] Speaker 04:
AirAsia X Burhard is an affiliate of AirAsia, who is also based out of Malaysia, but who is domestically incorporated in the United States in Hawaii.

[00:01:11] Speaker 04:
They do share the same booking website, and they operate connecting flights from the United States to Southeast Asia.

[00:01:17] Speaker 04:
Now, the appeal today is concerned with the Montreal Convention, which is a self-executing air carriage treaty that exclusively governs Miss Simpson's rights against AirAsia,

[00:01:27] Speaker 04:
because their injuries occurred on board an aircraft during international carriage.

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It creates a private right of action in United States courts and the exclusive cause of action in this case.

[00:01:39] Speaker 04:
Article 33 of the Montreal Convention is where we're looking at today.

[00:01:43] Speaker 04:
And that is concerned with- Can I ask you- Yes.

[00:01:46] Speaker 00:
Could I ask you, I know that you have your subject matter jurisdiction issue too, but there's also a personal jurisdiction issue in the case.

[00:01:53] Speaker 00:
Would you mind focusing on the personal jurisdiction question at the outset and just explaining how it is under the Daimler test, which now governs the maintenance of a website, would be enough to give rise to personal jurisdiction?

[00:02:06] Speaker 04:
Yes, Your Honor.

[00:02:08] Speaker 04:
And I do actually want to spend a bit of time on this issue because I know that this issue must be reached even if the court accepts the appellant's interpretation of Article 33, Section 2.

[00:02:21] Speaker 04:
So forgive me if it's slightly long-winded until I get to my point, but I do want to address your question.

[00:02:29] Speaker 04:
The United States was an influential drafter of the Montreal Convention, so it's easy to see how personal jurisdictional ideas are already baked into Article 33.

[00:02:39] Speaker 04:
So the first two bases in Article 33, Section 1, are where an action can be brought are the domicile of the carrier,

[00:02:48] Speaker 04:
and the principal place of business of the carrier, which for Air Asia bear harder both Malaysia and these echo general all purpose jurisdiction.

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The other two jurisdictional locations are the place where the carrier has a place of business where the contract of air carriage was made and the court at the place of destination.

[00:03:05] Speaker 04:
And those kind of call specific jurisdiction into mind because they arise out of or are related to the defendant's case specific contacts with the forum.

[00:03:16] Speaker 04:
Article 33 section two exists with regard to personal jurisdiction.

[00:03:23] Speaker 04:
There's two ways to see it.

[00:03:25] Speaker 04:
And one of the ways is through this element of consent within the Montreal Convention.

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Because Article 33 section two sweeps quite broadly.

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And it is invoked when a carrier does business in the passenger's domicile, either directly or indirectly.

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And when an air carrier undertakes international carriage of persons,

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baggage or cargo in a signatory state party to the Montreal Convention, it consents to the Montreal Convention as controlling law for the accidents that occur during these international flights.

[00:03:57] Speaker 04:
So for example, the Montreal Convention requires state parties to have their carriers maintain liability insurance for accidents arising out of the convention.

[00:04:07] Speaker 04:
So Article 33, Section 2.

[00:04:09] Speaker 01:
Mr. Dre, are you making a consent-based personal jurisdiction argument?

[00:04:13] Speaker 01:
Because I understood on the record in this case that the personal jurisdiction argument was based on contacts.

[00:04:22] Speaker 04:
I am making a consent argument, and I'm also making an argument through the lens of general jurisdiction.

[00:04:30] Speaker 04:
To go back to the consent, Article 33, Section 2 actually tells us

[00:04:35] Speaker 04:
what it is requiring as far as contacts of the carrier to be held liable.

[00:04:42] Speaker 04:
And what it really boils down to is some sort of purposeful available that the air carrier operates services for carriage by passengers or for carriage of passengers by air, either on its own aircraft or on another carrier's aircraft and so on within 33 section two.

[00:04:59] Speaker 04:
But under Daimler,

[00:05:02] Speaker 04:
You know, it, of course, is a very, very exacting standard of general jurisdiction.

[00:05:06] Speaker 04:
But in Daimler, the court did not foreclose the possibility that in an exceptional case that a corporation's operations in a forum other than its principal place of business or incorporated domicile could be of such a nature as to render it at home and

[00:05:26] Speaker 01:
So your argument is that the contacts with DC render Air Asia at home in DC.

[00:05:33] Speaker 01:
At least that's how I understand the case to have been teed up.

[00:05:36] Speaker 01:
Is that correct?

[00:05:39] Speaker 04:
Your Honor, that is, I would say, almost correct.

[00:05:43] Speaker 04:
But what we're really saying here is that it is the nature of the foreign air carriers, international air carriage of passengers, and that carriers binding strict liability under the Montreal Convention

[00:05:55] Speaker 04:
that brings them into jurisdiction within the United States.

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And there needs to exist this other jurisdiction, which can be viewed through the lens of consent or through another space of all purpose general jurisdiction, because the Montreal Convention already provides for these bases for jurisdiction that we generally see, such as place of incorporation, place of domicile.

[00:06:24] Speaker 04:
and then as well as specific jurisdiction.

[00:06:26] Speaker 04:
So this was meant to sweep broadly.

[00:06:29] Speaker 04:
And I do think that the way to understand it is through consent, but it can also be viewed as this exceptional case.

[00:06:38] Speaker 00:
I also think- Did you brief the consent, because as I'm looking at your brief, on page 29 of your opening brief, in the present case, only the District of Columbia's general jurisdiction over foreign corporations is at issue.

[00:06:50] Speaker 04:
Meaning?

[00:06:51] Speaker 04:
Yes.

[00:06:52] Speaker 04:
Yes, Your Honor.

[00:06:53] Speaker 04:
And I don't think that consent was briefed explicitly.

[00:06:57] Speaker 01:
I don't think the word even appears in the briefing, if I'm not mistaken.

[00:07:02] Speaker 01:
I mean, it's an interesting theory, but I have to say it comes as a surprise.

[00:07:07] Speaker 01:
The way I understood the discovery that was sought and the briefing that was made was that it was all going to the volume and frequency of AirAsia's contacts with the forum and that those contacts were through the website.

[00:07:20] Speaker 01:
And there's no other allegation of any other context, is there?

[00:07:24] Speaker 01:
or any actual material showing other contacts in DC?

[00:07:30] Speaker 04:
In the District of Columbia, no.

[00:07:32] Speaker 01:
And so the question is whether this is the exceptional case under Daimler or even could be when the only contacts that have been identified and into which discovery was sought were through AirAsia's website.

[00:07:46] Speaker 01:
Is that right?

[00:07:48] Speaker 04:
Yes, Your Honor.

[00:07:49] Speaker 04:
And I think one thing that we have to consider when

[00:07:53] Speaker 04:
discussing a Montreal Convention case is that, you know, the Montreal Convention talks about jurisdiction, I would say, with a big J and overarching jurisdiction as a state party, meaning a country.

[00:08:08] Speaker 04:
And then we're also looking at jurisdiction within our own

[00:08:12] Speaker 04:
states of the United States.

[00:08:14] Speaker 01:
Because the constitutional analysis is a context analysis.

[00:08:18] Speaker 01:
And I mean, you make an interesting suggestion that consent is adequate under the Constitution.

[00:08:26] Speaker 01:
But it's not an argument that I've seen developed in this case.

[00:08:30] Speaker 04:
Yes, Your Honor.

[00:08:31] Speaker 04:
I would ask that the court consider this argument that I am putting forth on at oral argument.

[00:08:42] Speaker 04:
as there really is not much case law as you, this is an issue of first impression on Article 33, Section 2.

[00:08:49] Speaker 04:
And while the general jurisdiction argument for Daimler would be an exceptional case, I understand that may be something that would be difficult for the court to hold.

[00:09:03] Speaker 04:
And I do think that consent is really how this needs to be viewed.

[00:09:11] Speaker 04:
So I actually wanted to discuss, since we are discussing jurisdiction, a little bit about how this 33 Section 2 works in practice, because I think that is really the best way to see how this article functions.

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And as I mentioned, there's really very little case law on Article 33 Section 2.

[00:09:34] Speaker 04:
And I was able to find one case where Article 33 Section 2 was invoked.

[00:09:41] Speaker 04:
It was Javier V. Philippines Air, which was cited too in the plaintiff's brief.

[00:09:46] Speaker 04:
And in this case, the court noted that there was personal jurisdiction for a flight from a Philippines-based airline who operated flights out of America.

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But the flight itself was from Canada to the Philippines.

[00:10:02] Speaker 04:
And one of the plaintiffs was an American.

[00:10:05] Speaker 04:
And here, there was not even a suggestion that this was not

[00:10:09] Speaker 04:
improper under Article 33, Section 2.

[00:10:13] Speaker 04:
And the presence of Philippines Air in the United States just by operating passengers, by air on its aircraft, and by conducting businesses, and I see I'm out of time as of right now, Your Honor.

[00:10:25] Speaker 00:
You can finish this thought if you want, but then we'll give you a little bit of time to rebuttal, too.

[00:10:30] Speaker 04:
Certainly.

[00:10:30] Speaker 00:
If you could do it briefly.

[00:10:32] Speaker 04:
Thanks.

[00:10:33] Speaker 04:
Yes.

[00:10:33] Speaker 04:
So the Philippines Air was operating passengers by air on its aircraft.

[00:10:38] Speaker 04:
It was conducting business through its California offices.

[00:10:41] Speaker 04:
And that suffice for the elements in Article 33, Section 2.

[00:10:47] Speaker 04:
And so the situation on appeal today will be just one step further.

[00:10:51] Speaker 04:
And that is provided for by Article 33, Section 2.

[00:10:54] Speaker 04:
And I'll go back to that in my rebuttal.

[00:10:55] Speaker 04:
Thank you.

[00:10:57] Speaker 00:
OK.

[00:10:57] Speaker 00:
Thank you.

[00:10:57] Speaker 00:
I want to make sure that neither of my colleagues have further questions for you in your opening argument.

[00:11:01] Speaker 03:
No.

[00:11:02] Speaker 00:
OK, thanks.

[00:11:04] Speaker 00:
Ms.

[00:11:04] Speaker 00:
Robertson.

[00:11:07] Speaker 03:
Good morning, Your Honors.

[00:11:09] Speaker 03:
May it please the Court, I'm Cynthia Robertson, appearing for the appellees Air Asia-Berhad and Air Asia-Ex-Berhad.

[00:11:18] Speaker 03:
To go to the consent argument here, I don't believe that counsel is arguing

[00:11:26] Speaker 03:
that there's been consent to personal jurisdiction procedurally.

[00:11:31] Speaker 03:
I think, and she can elaborate on this, but I believe what she's arguing is that the consent comes from doing business in the United States.

[00:11:43] Speaker 01:
But under the convention, my understanding is that she's saying that under the convention, that one is deemed to be a consenting party for purposes of litigation in a member state.

[00:11:56] Speaker 01:
That's what I understand her argument to be.

[00:11:59] Speaker 03:
Yes.

[00:12:00] Speaker 03:
And I guess I need to separate the two arguments here.

[00:12:03] Speaker 03:
So under the convention, you need to both conduct passenger flights to or from the jurisdiction

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And you need to conduct business operations in that jurisdiction.

[00:12:17] Speaker 03:
And AirAsia Berhad doesn't do either of those two things.

[00:12:22] Speaker 01:
Well, if the jurisdiction is the United States, for purposes of federal court and for purposes of the convention, that AirAsia X does fly into Hawaii?

[00:12:36] Speaker 03:
Yes.

[00:12:36] Speaker 03:
But AirAsia X is a separate carrier and a separate company.

[00:12:40] Speaker 03:
It's listed separately from AirAsia Berhad on the Malaysian Stock Exchange that different corporate owners and they operate independently.

[00:12:50] Speaker 03:
I realize they have similar names, but they are entirely separate companies.

[00:12:55] Speaker 01:
They operate as a joint website?

[00:12:59] Speaker 03:
They do market themselves on a website that you can access to both airlines together and similar to

[00:13:10] Speaker 03:
other airlines that have alliances with separate carriers.

[00:13:16] Speaker 03:
So yes, you can purchase connecting flights, but AirAsia Burhad doesn't offer any flights to the United States.

[00:13:29] Speaker 03:
It has no flight numbers in the United States.

[00:13:33] Speaker 03:
So you can't take an AirAsia Burhad flight

[00:13:38] Speaker 03:
within the United States or to or from the United States.

[00:13:41] Speaker 03:
You can take an AirAsia X flight, but that's under a separate carrier flight number and a separate carrier.

[00:13:49] Speaker 01:
We have been mentioning Daimler, and the briefing addresses it.

[00:13:54] Speaker 01:
But our circuit precedent, Gorman, for example, and FC Investment Group versus IFX Markets, suggest that contacts through a website could suffice for purposes of general jurisdiction.

[00:14:10] Speaker 01:
In fact, we did remand for further discovery, at least in Gorman, on that premise.

[00:14:16] Speaker 01:
Do we have to?

[00:14:20] Speaker 01:
overrule those cases in order to rule for you?

[00:14:22] Speaker 03:
I think rather than overruling, it would be more abrogating under the Daimler standard, because you need to have something.

[00:14:34] Speaker 03:
The Daimler standard and Goodyear standard say that you need something akin to a principal place of business in the jurisdiction.

[00:14:42] Speaker 03:
So they have to be essentially at home here.

[00:14:44] Speaker 03:
The Fifth Circuit, for example, recently held that a website, a general access website wasn't enough for general personal jurisdiction.

[00:14:54] Speaker 03:
It's probably dicta, but what it said was, well, what you really need is something that's akin to a physical location in the jurisdiction.

[00:15:09] Speaker 01:
Whatever at home means, you're saying that the pre-Daimler cases just can't stand.

[00:15:13] Speaker 01:
You can't distinguish them on their facts somehow.

[00:15:15] Speaker 01:
They've just been overtaken by Daimler, so we would have to abrogate them.

[00:15:22] Speaker 03:
Yeah.

[00:15:23] Speaker 03:
I mean, in that sense, yes.

[00:15:25] Speaker 03:
I mean, to make the explicit ruling that Daimler overrules them.

[00:15:30] Speaker 03:
To the extent that the door is probably open to some sort of website providing for general jurisdiction,

[00:15:38] Speaker 03:
I think that it would have to be something closer to, as the Fifth Circuit put it, something akin to a principal place of business via the web.

[00:15:49] Speaker 03:
And I would argue that that would be something like a web-based product rather than what's more of a marketing device for a company that provides very much, forgive the term, bricks and mortar services.

[00:16:06] Speaker 01:
It's interesting, though, because I think most customers' interaction at a buy and sell level with airlines is exclusively online.

[00:16:16] Speaker 01:
I think it's been decades since I've been to an airline office actually purchase a ticket.

[00:16:20] Speaker 03:
So in that sense... That's fair, although not necessarily from the airline website.

[00:16:33] Speaker 03:
themselves.

[00:16:33] Speaker 03:
I mean, there are certainly the orbits and hotwires and other, the airlines websites aren't the exclusive place to purchase tickets and not necessarily the primary place to do that.

[00:16:50] Speaker 03:
And, you know, to the extent that areas of Berhad, which is the sole carrier here,

[00:16:57] Speaker 03:
And the only carrier that could be subject to subject matter jurisdiction under the Montreal Convention does not offer any flights to or from the United States.

[00:17:11] Speaker 03:
You can take a connecting flight

[00:17:14] Speaker 03:
on AirAsiaX or any other airline.

[00:17:16] Speaker 01:
Tell us again about AirAsiaX.

[00:17:18] Speaker 01:
In order to decide to grant the relief you seek, which is to dismiss the case, not to transfer it, what would we have to find about the lack of relationship between AirAsia-Berhad and AirAsiaX?

[00:17:32] Speaker 01:
Just pin down for us why transfer to Hawaii is not the right result here.

[00:17:40] Speaker 03:
Um, it's not the right result here because, um, first of all, the Montreal convention is seeking a specific, um, type of carrier relationship there.

[00:17:52] Speaker 01:
So although flight services can be provided, the treaty, um, the treaty provision- Putting aside the treaty, cause if we don't have personal jurisdiction, we don't have to reach subject matter jurisdiction questions, right?

[00:18:04] Speaker 01:
So we could just say, we don't have personal jurisdiction.

[00:18:06] Speaker 01:
We'll let the district of Hawaii figure out anything else.

[00:18:09] Speaker 01:
And so I'm asking you, I think, in terms of personal jurisdiction, why should we also think that there's no personal jurisdiction in Hawaii?

[00:18:22] Speaker 01:
Maybe I'm mischaracterizing where you were going.

[00:18:26] Speaker 03:
But if we were to adjust to this time... I'm sorry, I didn't mean to over-talk you there.

[00:18:32] Speaker 03:
A little bit of a delay.

[00:18:34] Speaker 03:
The Asia X's connections with the US also wouldn't meet the Daimler standard for general jurisdiction either.

[00:18:46] Speaker 03:
It offers a single route to and from Kuala Lumpur to Honolulu, Hawaii,

[00:18:55] Speaker 03:
It's sole business operations in the US are in support of that single route.

[00:19:02] Speaker 03:
It's a tiny fraction of AirAsiaX's entire business.

[00:19:08] Speaker 03:
And so, well, there is a website that's available anywhere in the US or, frankly, anywhere in the world.

[00:19:15] Speaker 03:
That website isn't specific to the US.

[00:19:22] Speaker 03:
While there's some marketing to the US,

[00:19:24] Speaker 03:
reached the level of general jurisdiction that Daimler demands, even taken altogether.

[00:19:32] Speaker 03:
So that's the answer to that, is that AirAsiaX really doesn't solve the appellant's jurisdictional problems here, is the answer to that.

[00:19:42] Speaker 03:
So ultimately, similarly under the treaty, AirAsiaX

[00:19:51] Speaker 03:
can't, the fact that AirAsiaX provides flight services to and from the US doesn't fulfill the requirement because the treaty actually specifically requires that the carrier, and there's no dispute that the carrier in this case is AirAsia Berhad, must conduct flight services to and from the US.

[00:20:13] Speaker 03:
And that doesn't mean, even Appellants' Council classifies what happens

[00:20:20] Speaker 03:
Air Asia's flight relationship with Air Asia acts as connecting flights and the treaty isn't referring to connecting flights that happen outside of the US.

[00:20:32] Speaker 03:
It's talking about flights that are

[00:20:36] Speaker 03:
flight numbers within the U.S.

[00:20:38] Speaker 03:
and actual flight services provided to and from the U.S.

[00:20:43] Speaker 03:
by the specific carrier.

[00:20:44] Speaker 01:
Ms.

[00:20:44] Speaker 01:
Robertson, you had said that there might be the exceptional case in which web alone could support personal jurisdiction.

[00:20:51] Speaker 01:
So why shouldn't we, under our circuit's liberal standard of remanding for discovery,

[00:20:59] Speaker 01:
relating to personal jurisdiction, why shouldn't we just remand and at least allow appellants to find out what the facts are?

[00:21:07] Speaker 03:
I mean, besides the fact that the appellants haven't pled specific facts that would actually establish general personal jurisdiction via the web, also there simply isn't any theory under which AirAsia's website

[00:21:29] Speaker 03:
being available in the United States can establish anything like a principal place of business in the United States.

[00:21:39] Speaker 03:
It doesn't make AirAsia Berhad essentially at home here.

[00:21:45] Speaker 03:
Just because it accepts passengers from the United States doesn't mean that it has

[00:21:53] Speaker 03:
established itself as a business here, it doesn't offer flight services here, and it hasn't chosen to set up business operations here.

[00:22:02] Speaker 03:
It simply has a website from which you can see its flight services, but it's not even specifically directed at the United States, much less creating a principal place of business here.

[00:22:22] Speaker 00:
Thank you.

[00:22:23] Speaker 00:
Unless my colleagues have further questions, we'll go back to rebuttal for Ms.

[00:22:28] Speaker 00:
Durie.

[00:22:29] Speaker 00:
Ms.

[00:22:29] Speaker 00:
Durie, we'll give you your two minutes of rebuttal.

[00:22:33] Speaker 04:
Thank you, Your Honor.

[00:22:34] Speaker 04:
I wanted to go back actually to the Javier case because this will address Daimler again a little bit.

[00:22:42] Speaker 04:
So in Javier, you had a situation.

[00:22:44] Speaker 01:
Personal jurisdiction wasn't addressed as such, was it?

[00:22:48] Speaker 01:
There was no personal jurisdiction claim made there.

[00:22:51] Speaker 01:
And so it's what we sometimes refer to as a drive-by jurisdictional determination or hidden in the record.

[00:23:00] Speaker 01:
And we don't generally credit those.

[00:23:04] Speaker 04:
Yes, Your Honor.

[00:23:05] Speaker 04:
And in that case,

[00:23:07] Speaker 04:
There was the other plaintiff was dismissed, however, for lack of personal jurisdiction because he was a resident of Canada and tried to bring suit in the United States, which is really what the Montreal Convention was trying to prevent in Article 33 section two was not so much bringing carriers to

[00:23:28] Speaker 04:
lawsuit, but to prevent foreign plaintiffs from forum shopping.

[00:23:34] Speaker 04:
And I did want to go back to how the record stands now as far as AirAsia and AirAsiaX.

[00:23:41] Speaker 04:
And any reasonable consumer would believe that they are the same air carrier.

[00:23:47] Speaker 04:
You know, most consumers don't think of affiliates, they think of this is an AirAsia flight.

[00:23:54] Speaker 04:
And when you go to the booking website, that is precisely what you get.

[00:23:58] Speaker 01:
and I reference this in standard because one of the things that that the Supreme Court has emphasized is I'm sorry go ahead and pick it up if you want you should be able to hear

[00:24:14] Speaker 01:
Who would have thought we would have such issues in oral argument?

[00:24:20] Speaker 01:
No, I was just saying that one of the points of emphasis of the Supreme Court's doctrine on personal jurisdiction is whether the firm can predict and structure its activities so that it knows where it's exposing itself to suit and where it's not.

[00:24:38] Speaker 01:
And so I'm just

[00:24:41] Speaker 01:
questioning why the consumers, those reasonable consumers' perception would be controlling.

[00:24:50] Speaker 04:
And Your Honor, I am out of time, but if I could respond to your question.

[00:24:53] Speaker 01:
Yes.

[00:24:58] Speaker 04:
It is important because AirAsia is setting forth this, I guess it would be a fiction that

[00:25:08] Speaker 04:
AirAsia and AirAsiaX are in fact the same company.

[00:25:12] Speaker 04:
And so it's going back to 33 Section 2 of being in this commercial agreement that the drafters of the Montreal Convention really predicted was going to happen.

[00:25:26] Speaker 04:
And it's not code sharing.

[00:25:28] Speaker 04:
It's not an interline agreement.

[00:25:30] Speaker 04:
But it's, as the drafters of the Montreal Convention said,

[00:25:34] Speaker 04:
some form of joint provision or marketing of services as yet I'm dreamt of.

[00:25:39] Speaker 04:
And I think that's what we have here.

[00:25:41] Speaker 04:
And I don't think that the record is developed enough for us to understand fully what those commercial arrangements are.

[00:25:50] Speaker 04:
Thank you.

[00:25:51] Speaker 00:
Thank you, counsel.

[00:25:52] Speaker 00:
Thank you to both counsel.

[00:25:53] Speaker 00:
We'll take this case under submission.