Lin Zhang v. Air China Ltd.

Citations: 866 F. Supp. 2d 1162; 2012 U.S. Dist. LEXIS 54565; 2012 WL 1355676Docket: No. C 11-06724 SI

Court: District Court, N.D. California; April 17, 2012; Federal District Court

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The court denied Air China Limited's motion to dismiss a complaint for wrongful death and survival actions related to the death of Wenpei Zhang, who suffered from severe respiratory conditions requiring continuous oxygen. His death occurred shortly after Air China failed to provide an agreed-upon oxygen device for Flight 1625 from Beijing to Shenyang on October 24, 2009, following a United Airlines flight where he received oxygen service. Lin Zhang, Wenpei's son, had previously paid $70 for oxygen service, which Air China did not reimburse after canceling an earlier flight where service was inadequate. Lin Zhang attempted to book the necessary flights for his father under complicated conditions, ultimately securing tickets through his sister in China. The original complaint was filed in state court in November 2011 and later removed to federal court by Air China, claiming federal jurisdiction. The court found the case suitable for resolution without oral argument, focusing solely on the substantive claims presented.

On February 29, 2012, Air China filed a motion to dismiss the plaintiffs' claims, contending that they are governed by the Montreal Convention, ratified by the U.S. in 2003, which imposes a statute of limitations rendering the claims time-barred. The plaintiffs opposed this motion on March 14, 2012, and simultaneously filed a Second Amended Complaint (SAC). In its reply, Air China argued that if the Montreal Convention does not apply, the case should be dismissed for lack of jurisdiction under the Federal Sovereign Immunities Act (FSIA).

The legal standard requires that under Federal Rule of Civil Procedure 12(b)(6), a complaint must state a plausible claim for relief, which necessitates sufficient factual allegations. The court will assume plaintiffs' allegations are true and favorably interpret them, but will not accept conclusory or unreasonable assertions. Additionally, Rule 12(b)(1) permits challenges to the court's subject matter jurisdiction, with the burden resting on the party invoking jurisdiction.

Air China's arguments include that the claims are subject to the Montreal Convention's limitations, asserting that the flight in question constitutes 'international carriage,' thus falling under the Convention. However, the court found that the SAC does not adequately support this claim regarding the plaintiffs' wrongful death and survival actions.

The Montreal Convention governs international commercial air travel, serving as the exclusive remedy for injuries occurring on aircraft or during boarding and disembarking. It covers all international carriage of persons, baggage, or cargo for reward, including domestic flights that are part of an international journey as agreed by the parties. The determination of whether a domestic flight is included in international carriage hinges on the parties' intent, which is analyzed through objective evidence, primarily focused on the ticket and associated documentation.

In the Ninth Circuit, the courts prioritize objective indications of intent, starting with the ticket's terms. Extrinsic evidence may be used to clarify the intent expressed in the ticket, and courts may examine the circumstances surrounding ticketing. For instance, in Kruger v. United Air Lines, the court ruled that a domestic flight was not part of an international journey due to the purchase of separate tickets, lack of mention of international legs, and a significant layover. The plaintiff's assertions of intent were dismissed as unsupported by evidence indicating the airline's agreement to connect the flights. Similar reasoning was applied in Auster v. Ghana Airways, where summary judgment favored the airline based on the same principles. The courts conducted thorough analyses of the facts to determine the parties' intent, ultimately concluding that Air China likely lacked the intent necessary to establish international carriage under the Montreal Convention.

Air China Flight 1625 from Beijing to Shenyang was purchased independently from United Flight 889, which was bought by Lin Zhang in San Francisco. The Shenyang flight was booked in China by Lin Zhang's sister's co-worker's husband using a China-issued credit card. Consequently, the Court has denied Air China’s motion to dismiss the case under the Montreal Convention, allowing Air China to present its arguments again as the factual record develops.

Regarding the Federal Sovereign Immunities Act (FSIA), Air China introduced a sovereign immunity defense in its reply brief, claiming that should the Montreal Convention not apply, the Court would lack jurisdiction under FSIA. Air China maintains it is an instrumentality of the foreign state of China, arguing that the commercial activity exception to FSIA does not apply. FSIA is the sole source of jurisdiction over foreign states and their entities, establishing a presumption of immunity unless specific exceptions are met.

To trigger this presumption, the defendant must demonstrate it is a foreign state, after which the burden shifts to the plaintiff to show an exception applies. A corporation is deemed an agency or instrumentality of a foreign state if a foreign government holds a controlling interest. Air China asserts its status as a state-owned carrier under FSIA. Since the sovereign immunity argument was first raised in the reply brief, plaintiffs have not had a chance to respond, though Air China anticipates they will invoke the commercial activity exception.

For the commercial activity exception to be applicable, there must be commercial activity and a connection to the United States. FSIA defines "commercial activity" broadly, focusing on the nature of the conduct rather than its purpose, and outlines three potential ways to establish the necessary commercial nexus.

Section 1605(a)(2) of the Foreign Sovereign Immunities Act (FSIA) establishes a commercial exception for actions based on: (1) commercial activities conducted by a foreign state in the U.S.; (2) acts performed in the U.S. related to the foreign state's commercial activities abroad; or (3) acts outside the U.S. that have a direct effect in the U.S. The D.C. Circuit's decision in Kirkham v. Air France confirmed that a plaintiff's negligence claim related to an injury at a foreign airport was sufficiently linked to her purchase of an airline ticket in the U.S., thereby invoking the first commercial exception. The court deemed the ticket sale essential to the negligence claim, establishing a passenger-carrier relationship that imposed a duty of safe passage on the airline.

Similarly, the Second Circuit in Barkanic v. General Administration of Civil Aviation of the People's Republic of China found a commercial connection between tickets purchased in the U.S. and wrongful death claims from a plane crash, emphasizing the airline agency's authorization to operate in the U.S. and its ticketing agreement with Pan American. 

In the current case, if the defendant, Air China, can demonstrate its status as a Chinese instrumentality, the allegations suggest that the first commercial activity exception applies, as Air China conducts business in the U.S. The $70 receipt for oxygen service obtained in the U.S. for a canceled Air China flight is linked to a subsequent flight, establishing the necessary nexus similar to the tickets in Kirkham and Barkanic. The Court finds sufficient jurisdiction under FSIA's commercial exception to hear the plaintiffs' claims and denies the defendant's motion to dismiss concerning this claim.

Plaintiffs possess standing to sue for wrongful death under California law, specifically California Code of Civil Procedure § 377.60(b), which allows the deceased's spouse and children to bring such claims. The defendant's argument, suggesting that only a personal representative can assert a wrongful death claim, is incorrect. The plaintiffs in this case are directly within the statutory categories granted standing, in contrast to the plaintiff in Welch v. Yoell, who lacked the necessary relationship with the decedent. The defendant also incorrectly cites Moreland v. Las Vegas Metro. Police Dep’t, which pertains to Nevada law rather than California law.

Additionally, the defendant claims that the statute of limitations has expired for Ning Zhang's and Xueqin Lin's wrongful death claims, asserting a two-year limit from the date of the decedent's death, which occurred on November 5, 2009. Normally, the deadline would be November 5, 2011; however, since that date fell on a Saturday, California's procedural rules extend the deadline to the next business day, thus allowing for a potential extension of the statute of limitations.

Plaintiffs Ning Zhang and Xueqin Lin timely filed wrongful death actions on November 7, 2011, leading the Court to deny the defendant's motion to dismiss these claims. The defendant contended that all plaintiffs were barred from asserting survival claims due to the statute of limitations. However, the Court clarified that survival causes of action, unlike wrongful death claims, are rooted in the decedent’s rights prior to death and can be pursued by the decedent’s personal representative or successor in interest. California law allows such claims to survive if filed within two years of the decedent's death, which was satisfied in this case with a filing deadline of November 7, 2011. Xueqin Lin is named as the personal representative for these claims, and the Court must accept the allegations in the plaintiffs' favor at this stage, rejecting the defendant's challenge to Lin's status. Consequently, the Court also denied the motion to dismiss the survival claims. 

Regarding the Montreal Convention, the defendant, Air China, argued that the applicable statute of limitations would render the plaintiffs' claims time-barred, as the original complaint was filed after the two-year limit following the flight's scheduled arrival on October 24, 2009. However, the Court did not address standing issues under the Convention, as it rejected the applicability of the Montreal Convention to this case. Overall, the Court denied Air China’s motion to dismiss without prejudice, allowing for further consideration based on a more developed factual record.