Montreal Convention two-year limitation period not subject to tolling under local law

Duay v. Continental Airlines, Inc. (S.D. Tex. Dec. 21, 2010).  After arriving in Texas on a Continental flight from Switzerland, the plaintiff discovered at the baggage claim area that his custom-fitted wheelchair had been damaged.  Continental provided the plaintiff with a replacement wheelchair, which he used for the remainder of his trip in the United States.

In his complaint against Continental, the plaintiff alleged that the replacement wheelchair caused him to sustain a skin irritation injury that ultimately required surgery.  The plaintiff alleged causes of action for negligence, bailment and breach of contract.

Continental moved to dismiss on the grounds that the plaintiff had failed to perform the condition precedent of filing the lawsuit within the two-year period set forth in Article 35(1) of the Montreal Convention, which provides in part that “[t]he right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination.”  The plaintiff’s flight had arrived in Texas on December 2, 2007, but he did not file his complaint until December 18, 2009.

In opposition, the plaintiff contended that his claims were not barred because Article 35(2) of the Convention allows tolling in accordance with Texas law, and because that state’s discovery rule functioned to toll the running of the two-year period.  Article 35(2) provides that “[t]he method of calculating that period shall be determined by the law of the court seised of the case.”

The court agreed with Continental.  First, citing numerous Warsaw Convention cases and that treaty’s drafting minutes, the court ruled that subjecting the Article 35(1) two-year period to the “various tolling provisions of the member states” would be contrary to the Montreal Convention’s policy goal of achieving uniformity of the rules governing international air transportation claims.  Second, the court rejected the plaintiff’s tolling argument on the grounds that the Texas discovery rule does not apply where the accrual of a limitation period is “specifically defined by law,” and that Article 35(1) “unequivocally prescribes” the accrual date as the date of the arrival of the flight.  Accordingly, the court granted Continental’s motion to dismiss.


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