October 11, 2015
Cattaneo v. American Airlines, Inc. (N.D. Cal. Sept. 24, 2015). The passenger/plaintiff traveled roundtrip on American’s flights between LAX and Cozumel, Mexico, via DFW, in June 2011. In her complaint filed in November 2014, the plaintiff alleged that, during the DFW-LAX flight, a flight attendant gave her “an unlidded cup of hot water,” which spilled on her lap when the aircraft encountered turbulence, causing injuries.
American moved to dismiss on the ground that the plaintiff’s claims were time-barred by Article 35(1) of the Montreal Convention, which extinguishes the right to damages if an action is not commenced within two years “from the date of arrival at the destination.” American noted that the Convention applied even though the alleged injury occurred during the domestic DFW-LAX flight because, under Article 1(2), “international carriage” triggering the application of the Convention exists “where or not there be a break in the carriage.”
The plaintiff responded by arguing that the Convention did not apply because the DFW-LAX flight was “completely domestic.” The court agreed with American, finding that the plaintiff’s itinerary, which included same-day travel from Cozumel to LAX, objectively demonstrated that the DFW-LAX flight was “part of her longer international trip.” Accordingly, the court granted American’s motion to dismiss.
January 19, 2011
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.
September 27, 2007
Onyekuru v. Northwest Airlines and KLM Royal Dutch Airlines (N.D. Ill. Sept. 14, 2007). In August 2006, the passenger filed a lawsuit against the airlines seeking damages for the alleged theft of items from the baggage she had checked for her June 2004 flight from Nigeria to Chicago. The airlines moved for summary judgment on the grounds that her claim was time-barred by Article 35(1) of the Montreal Convention, which provides as follows: “The 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.”
The court granted the airlines’ motion because the passenger had filed her lawsuit more than two years after her flight had arrived in Chicago.
Note: The court described the two year limit imposed by Article 35 as a “statute of limitations” and noted that the passenger had failed to “offer any evidence to suggest that the limitations period was tolled.” Because the two year limit is a condition precedent to suit, not a statute of limitation, it is not subject to tolling.
July 21, 2007
Sanchez-Morrabal v. Omni Air Services, Co. (D. Puerto Rico July 6, 2007). Way back in 2001, the passenger fell off a ramp and injured his leg while boarding an aircraft in Honduras for a flight to Puerto Rico. In his 2006 lawsuit against the airline, one of the passenger’s causes of action was for relief under the Warsaw Convention. The airline moved to dismiss on the grounds that the passenger’s lawsuit was barred by Article 29(1) of the Warsaw Convention, which provides that “[t]he right to damages shall be extinguished if an action is not brought within 2 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 transportation stopped.”
Backpedaling furiously, the passenger moved for leave to amend his complaint to drop the Warsaw Convention cause of action. The court granted the passenger’s motion but the amendment just rearranged a deck chair on the Titanic. The court held that the Convention applied because both Honduras and the U.S. are signatories to the Convention and because, pursuant to Article 17, the passenger was “in the course of any of the operations of embarking” when the accident occurred. The passenger argued that the Convention did not apply because he was not provided with a ticket, as required by Article 3, but the court correctly ruled that an airline’s failure to comply with the ticket requirement “does not affect the Convention’s applicability, only the airline’s ability to avail itself of the limits imposed on its potential liability.” The court dismissed the lawsuit as time-barred pursuant to Article 29.
Note: Because the two-year limit of Article 29 of the Warsaw Convention is a condition precedent to suit, not a statute of limitation, it is not subject to tolling. The same is true with the two-year limit of Article 35 of the Montreal Convention, the successor to the Warsaw Convention.
April 28, 2007
Dick v. American Airlines, Inc. (D. Mass. Mar. 12, 2007). The international travel itinerary of the plaintiff and her elderly mother, who required wheelchair assistance, included a connecting flight at Miami International Airport. American provided (through a contractor) a wheelchair escort to assist the plaintiff’s mother in getting from the arrival gate to the departure gate. The escort directed that they use the escalator because the elevator was out of service. While riding the escalator, the plaintiff’s mother fell backward and injured the plaintiff.
Over two years after the incident, the plaintiff brought a lawsuit alleging a state law cause of action for negligence against American. American moved for summary judgment on the grounds that the plaintiff’s state law cause of action was preempted by the Warsaw Convention and barred by its “two-year statute of limitations.” (The incident occurred in 2002, which is why American cited the Warsaw Convention, rather than its successor, the Montreal Convention.)
Article 17 of the Warsaw Convention provides the remedy for a passenger’s personal injury, but it only applies when an “accident” took place on the aircraft “or in the course of any of the operations of embarking or disembarking.” The court ruled that because the plaintiff “was not sufficiently close in either space or time to the actual physical activity of getting on the aircraft,” she had not been involved in “any of the operations of embarking” when the escalator incident occurred. Accordingly, the court held that the Convention did not apply and denied American’s motion.
Note: The court characterized the Warsaw Convention’s requirement that suit be filed within two years as a statute of limitation, but that requirement is really a condition precedent, as the Second Circuit correctly held in Fishman v. Delta Air Lines, Inc. This is a critical distinction because statutes of limitation are subject to tolling due to infancy and other reasons but conditions precedent are not subject to tolling. The two-year filing condition precedent is in Article 29 of the Warsaw Convention and in Article 35 of the Montreal Convention.