Air China Wrongful Death Case to Go to Trial

     SAN FRANCISCO (CN) – A Chinese airline has failed it its bid to quash a lawsuit filed by a man who claims his father died after he was deprived of supplemental oxygen on one of the carrier’s flights.



     Lin Zhang and his father Wenpei boarded Air China flight 1625 from San Francisco to Beijing to Shenyang on October 24, 2009, expecting to be provided with an oxygen device they paid $70 for in advance. The device, however, was never provided.
     After Wenpei on died November 5, 2009 his son Lin filed a lawsuit in a California state court, claiming the death was due to the lack of oxygen his father experienced during the flight. Air China subsequently had the case removed to federal court.
     The airline sought dismissal under the (Montreal) Convention for Unification of Certain Rules for International Carriage by Air, a treaty ratified by the U.S. in 2003 that time-bars Zhang’s claims under the Convention’s statute of limitations.
     The airline also said that, “if the ‘Montreal Convention’ does not apply, then the court must dismiss the case for lack of jurisdiction under the Federal Sovereign Immunities Act (FSIA) of 1976.”
     The court disagreed, holding that Air China was disqualified from consideration under the Montreal Convention statutes.
     “The court finds that is a reasonable conclusion that Air China did not have the requisite intent to establish international carriage under the Montréal Convention,” wrote federal judge Susan Illston. “Air China Flight 1625 from Beijing to Shenyang was purchased separately from the United Flight 899 from SFO to Beijing. Unlike the United Flight, which was purchased by Lin Zhang in San Francisco, the Shenyang flight was purchased in China, using the Chinese issued credit card of Lin Zhang’s sister’s co-worker’s husband.”
     Illston did, however, note that Air China could raise the Montreal Convention argument again if it could add to its factual timeline.
     As for the FSIA, Air China said it is not subject to the act because it is an “instrumentality” of a foreign state; that it is owned by the Chinese government, which means the commercial activity exception within the act does not apply to it.
     Again, the court disagreed with the airline’s position, saying a receipt for the oxygen, which was bought in the U.S., is sufficient to make Air China subject to the FSIA.
     It concluded that, “on the state of the current record, plaintiffs have demonstrated a sufficient nexus between Air China’s failure to provide oxygen services and the $70 receipt, which was issued in the U.S.” Illston added that like the Montreal Convention, Air China may raise the FSIA argument again in light of any new factual evidence.
     Finally, Air China argued that California’s two-year wrongful death statute of limitations had run its course, but Illston said that argument is defeated due to specific calculations of time under California state statute.
     “Wenpei Zhang died on November 5, 2009,” she said. “Under normal circumstances, the statute of limitations for filing a wrongful death action based on his death was November 5, 2011. However, November 5, 2011 fell on a Saturday. Saturdays and Sundays are holidays for the purposes of statute of limitations computations. Under California procedural rules for computing the time during which an action may be brought, ‘if the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is . . . extended to and includes the next day that is not a holiday.’ Plaintiffs there filed timely wrongful death actions, because the FAC which named them as plaintiffs and which alleged wrongful death causes of action was filed on Monday, November 7, 2011.”
     Illston denied Air China’s motion to dismiss without prejudice “to further consideration on a more fully developed factual record.”

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