Ninth Circuit confirms inviolability of Montreal Convention’s two-year lawsuit filing limit

Von Schoenebeck v. Koninklijke Luchtvaart Maatschappij N.V. (9th Cir. Aug. 10, 2016).  During a 2008 KLM flight from Amsterdam to San Francisco, Ms. Schoenebeck sustained neck and back injuries when a seat backrest collapsed.  Less than two years after the flight arrived in San Francisco, Ms. Schoenebeck filed an action against KLM in South Africa.  In 2013, with the South Africa action still pending, Ms. Schoenebeck and her husband filed an action against KLM in the U.S. District Court for the Northern District of California.  According to KLM, the plaintiffs filed the United States action because they were dissatisfied with the court’s rulings in the South Africa action.  In the South Africa action, Ms. Schoenebeck was represented by her fourth set of attorneys, the three previous sets of having withdrawn, according to KLM.

KLM moved to dismiss the United States action on the grounds that it was untimely under Article 35(1) of the Montreal Convention, which provides 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, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.”

In opposition, the plaintiffs argued that they had complied with Article 35(1) because Ms. Schoenebeck had filed “an action” – the South Africa action – within the two-year period, thereby preserving her right to file an action against KLM advancing the same claim in any other competent court, even if the two-year period had expired.  KLM contended that Article 29 of the Montreal Convention, which provides in part that “[a]ny action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention,” as well as Ninth and Second Circuit precedents, made it clear that “any action” filed by the plaintiffs in the United States was subject to Article 35(1)’s two-year limit and that the existence of the timely-filed South Africa action was irrelevant to the Article 35(1) analysis in the United States action.

KLM pointed out that, if the plaintiffs’ argument were correct, a claimant’s act of filing a lawsuit in one country within the two-year period would have the perverse effect preserving the claimant’s right to file subsequent lawsuits based on the same claim “everywhere in the world, for all time.”  KLM also argued that Article 35(1) is a “statute of repose” that cannot be tolled or extended for any reason.

The district court agreed with KLM, ruling that “any action for damages under the Montreal Convention must comply with Article 35’s two-year limitations period” and that the filing of the South Africa action did not toll the two-year period; accordingly, the court granted KLM’s motion and dismissed the case.  The Ninth Circuit affirmed in a 2-1 decision.

Update:  On Jan. 23, 2017, the Supreme Court denied the Schoenebecks’ petition for a writ of certiorari.

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