Introduction

An international aircraft accident may involve several countries at the same time: the country of the passenger’s residence, the airline’s home State, the State where the ticket was purchased, the country of destination and the country in which the accident actually occurred.

Consequently, one of the first questions following an international aviation accident is not merely who is liable, but also:

Where can the claim be brought?

The principal international instrument governing this issue is the Convention for the Unification of Certain Rules for International Carriage by Air of 1999 — the Montreal Convention.

Türkiye signed the Convention on 28 May 1999, deposited its instrument of ratification on 25 January 2011, and the Convention entered into force for Türkiye on 26 March 2011.

Article 33 of the Convention establishes a special jurisdictional system for claims against international air carriers and, in cases involving passenger death or bodily injury, introduces the highly significant concept commonly known as the “fifth jurisdiction.”

1. When Does the Montreal Convention Apply?

Article 1 provides that the Convention applies to international carriage of passengers, baggage and cargo by aircraft for reward, as well as certain gratuitous carriage performed by an air transport undertaking.

In general terms, carriage is international where, according to the agreement between the parties, the place of departure and the place of destination are situated in the territories of two States Parties.

International character may also exist where departure and destination are situated within a single State Party if an agreed stopping place is located in another State.

The nationality of the passenger is therefore not what makes the Montreal Convention applicable. The crucial issue is the legal structure and itinerary of the international carriage.

2. The Four Traditional Jurisdictions Under Article 33(1)

Article 33(1) gives the claimant a choice between several jurisdictions.

An action for damages may generally be brought in the territory of a State Party before the court of:

1. the domicile of the carrier;
2. the carrier’s principal place of business;
3. the place where the carrier has a place of business through which the contract was made; or
4. the place of destination.

These jurisdictional grounds largely reflect the traditional Warsaw Convention system.

The Montreal Convention, however, introduced an additional and particularly passenger-friendly forum for death and bodily injury claims.

This is the so-called fifth jurisdiction.

3. What Is the Fifth Jurisdiction?

Article 33(2) provides an additional forum for claims arising from the death or bodily injury of a passenger.

Subject to the conditions laid down by the Convention, the claimant may bring proceedings in the State Party where the passenger had his or her principal and permanent residence at the time of the accident.

However, residence alone is insufficient.

The carrier must also operate passenger services to or from that State, whether:

• using its own aircraft, or
• using another carrier’s aircraft pursuant to a qualifying commercial agreement.

Furthermore, the carrier must conduct its passenger air carriage business in that State from premises owned or leased either by itself or by another carrier with which it has the relevant commercial agreement.

ICAO materials describe this additional basis as the fifth jurisdiction, emphasizing that it was one of the important innovations of the Montreal Convention.

4. Turkish Citizenship Does Not Automatically Create Jurisdiction in Türkiye

Article 33 contains an extremely important qualification.

For the purposes of the fifth jurisdiction, “principal and permanent residence” means the passenger’s one fixed and permanent abode at the time of the accident.

The Convention expressly provides that the passenger’s nationality is not the determining factor.

Consider a Turkish citizen who has permanently lived and worked in Germany for many years.

The fact that this passenger holds a Turkish passport does not by itself mean that Türkiye becomes the fifth jurisdiction.

Conversely, a passenger whose principal and permanent residence is in Istanbul may potentially rely on Article 33(2) against a foreign airline even though the aircraft accident occurred abroad, provided that the remaining requirements concerning the carrier’s operations and commercial presence in Türkiye are satisfied.

This distinction between nationality and principal and permanent residence is crucial in cross-border aviation litigation.

5. Does the Country Where the Aircraft Crashes Automatically Have Jurisdiction?

Not necessarily.

This is one of the most important misconceptions concerning international aviation accidents.

Article 33(1) does not list the physical location of the accident as an independent jurisdictional ground.

The Convention instead focuses on the carrier’s domicile, principal place of business, the relevant place through which the carriage contract was made and the place of destination. Death and bodily injury cases may additionally benefit from Article 33(2).

Accordingly, the mere fact that an aircraft crashes in State X does not automatically mean that the courts of State X have Montreal Convention jurisdiction.

They may nevertheless have jurisdiction if another Article 33 connecting factor exists.

This distinction can dramatically alter litigation strategy following an international accident.

6. Can a Turkish Resident Sue a Foreign Airline in Türkiye?

Potentially, yes.

Assume that a passenger:

• lives permanently in Istanbul;
• purchases an international ticket from a foreign airline;
• suffers serious bodily injuries in an aircraft accident abroad;
• and the foreign carrier operates passenger services to or from Türkiye while satisfying the commercial presence requirements of Article 33(2).

In such circumstances, Türkiye may constitute the fifth jurisdiction.

The fact that the accident itself occurred in France, the United States, Asia or another jurisdiction does not necessarily prevent proceedings from being brought before Turkish courts.

However, the analysis must go beyond simply establishing that the airline’s aircraft occasionally flies to Türkiye.

A proper jurisdictional investigation should examine matters including:

the airline’s Turkish operations, ticketing structure, code-share arrangements, commercial agreements, business premises and the relationship between the contracting and operating carriers.

7. Code-Share Flights and the Actual Carrier

Modern aviation frequently separates the airline that sells the ticket from the airline that actually performs the flight.

A passenger may purchase a ticket from Carrier A, while the flight is physically operated by Carrier B under a code-share or similar arrangement.

The Montreal Convention contains specific provisions addressing this situation.

Under Article 45, where carriage is performed by an actual carrier, an action may, subject to the Convention, be brought against the actual carrier, the contracting carrier, or both.

Article 46 also provides an additional jurisdictional rule concerning claims involving an actual carrier, including the courts where that carrier has its domicile or principal place of business.

Consequently, identifying the correct defendant in an international aviation accident requires more than reading the airline name appearing on the passenger’s booking confirmation.

The distinction between:

contracting carrier
and
actual carrier

may materially affect both liability and jurisdiction.

8. Is the Fifth Jurisdiction Available for All Passenger Claims?

No.

Article 33(2) is specifically directed to damage resulting from passenger death or bodily injury.

It does not provide a general residence-based forum for every dispute between a passenger and an airline.

For example, ICAO materials expressly note that passengers cannot rely on the Article 33 fifth jurisdiction merely to pursue baggage claims.

Accordingly, jurisdiction for:

• death or bodily injury,
• baggage loss,
• baggage damage,
• delay,

must not automatically be analysed in exactly the same manner.

9. Jurisdiction and Applicable Law Are Different Questions

Another important distinction is between:

which court may hear the case, and
which law governs the dispute.

The fact that a Turkish court has jurisdiction does not automatically mean that every substantive question is governed exclusively by Turkish domestic law.

The Montreal Convention itself provides the international liability framework.

Article 33(4) expressly states that questions of procedure are governed by the law of the court seised — the lex fori.

Accordingly, where proceedings are brought in Türkiye, Turkish procedural law will govern procedural matters, while the Montreal Convention governs matters falling within its substantive scope.

Questions not fully harmonised by the Convention may require further analysis under the applicable domestic law and conflict-of-laws rules.

For this reason, jurisdiction and applicable law should never be treated as synonymous concepts.

10. Can an Airline Contractually Eliminate Article 33 Jurisdiction?

The Montreal Convention contains mandatory protections designed to prevent carriers from contracting out of the Convention’s jurisdictional framework before damage occurs.

Article 49 provides that contractual clauses or special agreements made before the damage occurred which seek to infringe the Convention’s rules, including by altering jurisdictional rules, are null and void.

Therefore, an airline’s standard terms stating that:

“all disputes shall exclusively be resolved before the courts of State X”

cannot automatically be assumed to override the mandatory jurisdictional rights provided by the Montreal Convention.

11. The Two-Year Period Must Not Be Overlooked

Jurisdiction must also be investigated quickly.

Under Article 35, the right to damages is extinguished unless proceedings are brought within two years, calculated from:

• the date of arrival at destination;
• the date on which the aircraft ought to have arrived; or
• the date on which the carriage stopped.

The method for calculating that period is determined by the law of the court seised.

Accordingly, lengthy negotiations with insurers or airlines should not cause claimants to overlook the Montreal Convention’s two-year regime.

Conclusion

Determining jurisdiction following an international aircraft accident requires significantly more analysis than identifying the place where the aircraft crashed.

Under Article 33 of the Montreal Convention, the principal connecting factors include:

the carrier’s domicile, its principal place of business, the relevant establishment through which the carriage contract was concluded, and the place of destination.

For passenger death and bodily injury claims, Article 33(2) adds another strategically important possibility: the fifth jurisdiction.

For a passenger whose principal and permanent residence is in Türkiye, this provision may permit litigation before Turkish courts against a foreign airline even where the accident occurred in another country, provided that the carrier satisfies the operational and commercial requirements of Article 33(2).

At the same time, Turkish nationality alone is insufficient. The Convention expressly states that nationality is not determinative; the focus is the passenger’s principal and permanent residence at the time of the accident.

Accordingly, any serious international aviation accident claim should begin with a detailed jurisdictional investigation addressing at least the following questions:

Who issued the ticket? Who actually operated the aircraft? What was the contractual destination? Where was the passenger’s principal and permanent residence? Where does the airline conduct passenger operations? Was the flight operated under a code-share or another commercial arrangement?

In international aviation litigation, the answers to these questions may determine not only where the lawsuit can be filed, but also the procedural environment in which a potentially substantial compensation claim will ultimately be resolved.