“This court would be reluctant to hold that a citizen of the United States must go to a foreign country to seek redress for an alleged wrong”.

This candid assertion on the part of Levett, D.J., in the U.S. District Court for the Southern District of New York (Anderson v. BOAC, 1956 144 F. Supp. 543) clearly reflects the judicial philosophy which underlies the approach of the U.S. courts to the question whether jurisdiction can be exercised over foreign residents in suits arising out of aviation tort claims. Indeed, an uncharitable observer might on occasion be tempted to speculate that this assertion was itself a statement of the governing rule of law.

In this article it is proposed to illustrate in outline some of the practical consequences of the evolving attitudes of the courts to this issue and to the associated but distinct question of venue—whether a court with power to exercise jurisdiction will in fact choose to invoke that power.

As indicated in previous articles, the U.S. courts represent a preferred forum within which to litigate personal injury or wrongful death actions arising out of carriage by air. American juries have an uninhibited approach to the calculation of damages, and the availability of doctrines such as that of strict liability for product defects provide useful aids to the establishment of responsibility. In addition, procedural rules relating to discovery of documents and burden of proof generally offer substantial advantages to the injured plaintiff. It is also worthy of note that the American judiciary tends to display an irreverent and unsympathetic attitude in applying the hallowed Warsaw Convention which will in many cases govern the liability of the air carrier engaged in the international carriage of passengers or cargo.

The corpus of jurisprudence on the subject of the power to exercise jurisdiction is rendered complex not least by the continuing inter-reaction between the Federal and State legal systems as to what principles are to be adopted in any given State in determining whether the local Federal Court may try the action in question. (It being the Federal Courts and not the State Courts which have exclusive jurisdiction in diversity suits—actions in which plaintiff and defendant are not citizens of the same U.S. State). Hence the illustrations that follow are intended as general guidance only on the pitfalls awaiting the out-of-State or overseas defendant.

The point of departure for the modern law is the decision in 1945 of the Supreme Court in International Shoe Co. v. Washington (326 U.S. 310). In this case it was declared that in order to establish jurisdiction over a non resident defendant it was necessary to show that the non resident had such contacts with the State in which the suit was filed