AIR CARRIER LIABILITY Under the Montreal Convention by BARTHOLOMEW J

RECENT DEVELOPMENTS IN AIR CARRIER LIABILITY under the Montreal Convention BY BARTHOLOMEW J. BANINO

he Montreal Convention of 19991 entered Accordingly, the language in most of the Montreal into force on November 4, 2003, 60 days Convention’s articles is essentially the same as in the after the United States became the thirtieth corresponding articles in the Warsaw Convention.5 T party to ratify the Convention. It is appli- Because of the similarities between the Conven- cable to all “international carriage of persons, baggage tions, the cases that have discussed the Montreal or goods performed by aircraft for reward.”2 Currently, Convention have referenced its predecessor, to which 87 countries are parties to the Convention, with the over 120 countries are parties, and for which there recent ratification by Australia becoming effective on is a well-established body of case law.6 In those cases January 24, 2009. that concern countries that have not yet ratified the The Montreal Convention is the successor to the Montreal Convention or concern events that preceded Warsaw Convention of 19293 and was “designed to the Montreal Convention’s effective date, courts have replace the Warsaw Convention and all of its related continued to apply the Warsaw Convention. instruments and to eliminate the need for the patch- U.S. courts have recently decided a number of work of regulation and private voluntary agreements.”4 cases interpreting the Montreal Convention. These To consolidate the various liability rules and preserve cases represent developments in three significant areas the body of case law interpreting and applying the of the Montreal Convention body of law. The courts Warsaw Convention and its amendments, the drafters have clarified not only the relationships among “actual of the Montreal Convention incorporated the substan- carriers,” “contracting carriers,” and “successive carri- tive language of the prior treaties and amendments. ers” but also jurisdictional issues set out in Article 33

22 The Brief n Spring 2009

23 The Brief n Spring 2009

Published in The Brief, Volume 38, Number 3, Spring 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. “complete preemption” doctrine, preempts the plaintiff’s state law providing the district court in Ser- where a law so completely regulates breach of contract claim. The rano clear precedent to apply to the a particular field that not only is Knowlton court acknowledged that facts before it. The Serrano court, the state law preempted by the fed- federal preemption cannot serve as however, took a notable departure eral law, but a plaintiff’s state law the basis for federal question juris- from this precedent and held that cause of action is also preempted, diction, warranting removal, unless the “plain language” of the Tseng requiring that the plaintiff’s claim the doctrine of complete preemp- decision, as well as the text of be heard in federal court,13 and (2) tion applies, in which case the fed- Article 29, suggested that state law the “artful pleading” doctrine, in eral claim is “deemed to appear on claims are permissible when the which a court looks beyond the the face of the complaint.”15 plaintiff’s claim “does ‘satisfy the plain language of the complaint The Knowlton court also rec- conditions of liability under the to determine whether a plaintiff ognized that Tseng stands for the Convention.’ ” 20 The court held has concealed the federal nature of proposition that the Warsaw that the Tseng decision did not the claim by pleading in common Convention preempted state necessarily preclude claims for relief (state) law terms. law claims. Because the Warsaw under state law, “as long as those Most courts following Tseng and Montreal Conventions were local laws are in accordance with hold that the Convention com- “designed to create a uniform sys- the rules of the Convention.”21 pletely preempts a plaintiff’s com- tem of liability among airlines for The Serrano court also rejected mon (state) law causes of action. claims arising from international American’s complete preemption In Knowlton v. American Airlines,14 flights,”16 the Knowlton court held argument and instead adopted the American removed, and the plain- that the Montreal Convention dissenting opinion of Judge Morris tiff sought to remand, an action completely preempts all claims aris- Sheppard Arnold in Husmann v. alleging breach of contract because ing out of international flights.17 Trans World Airlines.22 Embracing the plaintiff did not receive a free The court also said, “As a matter the reasoning and conclusion in meal on her flight. When she pur- of public policy, airlines should that dissent, the district court found chased her ticket, the electronic not be subject to contract claims that the uniformity required by confirmation of the plaintiff’s in state courts involving a three- the Montreal Convention may be travel itinerary included the nota- dollar breakfast.”18 Accordingly, the achieved by exclusive remedies and tion “breakfast” on the first leg of Knowlton court denied the plain- liabilities, not by a requirement that her international travel. While on tiff’s motion to remand. all such cases be brought in federal board, however, the plaintiff was The court in Serrano v. American court. Thus, according to the court, informed that American no longer Airlines19 took a notable departure “complete preemption does not fol- served complimentary breakfasts but from precedent established by low federal preemption.”23 Accord- that she could purchase breakfast the Supreme Court in Tseng. The ingly, the court remanded the case for $3. The plaintiff argued that the plaintiffs were off-loaded from an to state court based on the finding treaty only addresses claims for per- American flight bound from Los that there was no complete preemp- sonal injury, property damage, and Angeles to Heathrow Airport (serv- tion and that cases arising under damage caused by delay. American ing London) when airline staff the Montreal Convention may still argued that the Montreal Con- refused to allow the plaintiffs’ infant be maintained in state court. There vention, nonetheless, completely child to be seated on their laps in was, said the district court, nothing business class. The plaintiffs sued to indicate that Congress intended for refusal to transport and alleged for the Montreal Convention to Bartholomew J. Banino is a partner causes of action under the Cali- wholly displace the plaintiffs’ con- in the New York office of Condon & fornia Civil Rights Act, breach of tract and tort causes of action.24 Forsyth LLP. His practice includes contract, interference with contract, The result reached in Serrano, representing foreign and domestic air defamation, and intentional inflic- in addition to being inconsistent carriers and other clients in major aviation of emotional distress. American with other judicial interpretations tion accident litigation, airline claims, removed the case to federal court of the Montreal Convention, mis- commercial litigation, and commercial and the plaintiffs moved to remand, states Congress’s role in the treaty. transactions. He can be reached at arguing that their claims were based The Montreal Convention is not a [email protected]. The author solely upon state law. domestic statute; it is a treaty that wishes to acknowledge the assistance of The Supreme Court in Tseng the United States has ratified, thus Allison M. Surcouf, an associate in the ruled directly on the issue of pre- making it a binding treaty obliga- firm’s Airline Liability Practice Group, emption relating to claims arising tion of the United States and sub- in the preparation of this article. under the Warsaw Convention, ject to federal question jurisdiction.

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Published in The Brief, Volume 38, Number 3, Spring 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Two recent decisions from dis- remanded the case back to Illinois As noted above, courts gener- trict courts in Illinois also highlight state court for further proceedings. ally hold that plaintiffs’ claims that the difficulty courts have in address- A decision just a few months arise out of international transpor- ing issues of preemption in the con- later in the Central District of Illi- tation are governed by a treaty of text of the Montreal Convention. nois issued an opposite ruling with the United States and are therefore In Narkiewicz-Laine v. Scandinavian regard to a defendant airline’s pre- appropriate for removal to federal Airlines System,25 a passenger filed a emption defense under the Conven- court based on federal question juris- claim for delay and refusal to refund tion. In Schoeffler-Miller v. Northwest diction. However, as shown by the a ticket. Christian Narkiewicz-Laine Airlines,29 the plaintiff had traveled decisions in Narkiewicz-Laine and was delayed in his transportation uneventfully from Chicago to Stutt- Serrano, courts are still not in com- from Dublin to Copenhagen, caus- gart, Germany, via Amsterdam. On plete agreement on the preemptive ing him to miss his connection to her return flight from Stuttgart to effect of the Montreal Convention. Helsinki, and he arrived in Helsinki Amsterdam, the plaintiff became one and a half hours later than ill and allegedly notified the flight The Fifth Jurisdiction originally scheduled. Narkiewicz- attendants that she would need Under the Montreal Convention, Laine also included a claim for dam- assistance disembarking the aircraft there are five different forums in ages because the defendant refused upon arrival in Amsterdam. Accord- which plaintiffs may bring their to refund his ticket from Dublin to ing to the plaintiff, the attendants claims against a carrier: (1) the Orso on a different trip, after he refused. As the plaintiff attempted domicile of the carrier; (2) its prin- called the day of his scheduled flight to disembark unassisted, she lost cipal place of business; (3) the place and advised that he would not be consciousness and fell down metal where the ticket was bought; (4) the able to fly because he was sick. stairs to the tarmac. place of destination; or (5) in the The court in the Northern The defendants removed the case of personal injury, the principal District of Illinois said that the action to federal court, and the and permanent place of residence of preemptive effect of the Mon- plaintiff filed a motion to remand the plaintiff. treal Convention is an affirmative back to state court. Like the court The Montreal Convention defense and, as such, does not in Narkiewicz-Laine, the Central expanded on the four jurisdictions provide a basis for federal subject District of Illinois also looked to set out in the Warsaw Convention matter jurisdiction according to the the well-pleaded complaint rule in which a carrier could be sued by well-pleaded complaint rule. The and whether the plaintiff’s cause adding the “fifth jurisdiction,” the court noted that complete preemp- of action “arises under” federal plaintiff’s “permanent and princi- tion is the exception to this rule; law. The court noted that preemp- pal residence.” Under the Warsaw however, relying on the Seventh tion is an affirmative defense and, Convention, some U.S. citizens Circuit’s conclusion in an earlier therefore, not usually a basis for who purchased their tickets abroad case that “[t]he liability limitation removal. The defendants argued, for flights that did not depart from provisions of the Warsaw Conven- however, that the artful plead- or arrive in the United States tion simply operate as an affirma- ing rule requires the court to look were prohibited from suing in U.S. tive defense,”26 the district court beyond the complaint and deter- courts.32 The drafters of Article 33 concluded that claims falling within mine whether “there is a strong but of the Montreal Convention, by the scope of the Montreal Conven- latent federal nature to the cause of adding the fifth jurisdiction, sought tion may be brought in contract action.”30 The court explained that to resolve that problem. or tort under state law, “but such where a plaintiff’s claim raises an A recent cargo case confirmed claims are subject to an affirmative issue that is completely preempted the jurisdictional requirements defense based on the conditions by federal law, he or she cannot of Article 33 in Transvalue, Inc. and limits set out in the Montreal keep it out of federal court simply v. KLM Royal Dutch Airlines.33 In Convention.”27 The court found by characterizing the suit as one Transvalue, the defendant argued that because the plaintiff pled only arising out of common (state) law. that the United States was not a state law breach of contract claims, Because the court found that a car- proper jurisdiction for the action they did not provide a basis for rier’s tort liability during interna- since KLM’s principal place of busi- federal jurisdiction.28 The defen- tional transportation is completely ness and domicile is The Nether- dant’s assertion that the Montreal preempted by federal law, i.e., the lands, and the subject air waybill Convention was the exclusive cause Montreal Convention, and that was issued in Mexico with a destina- of action was simply an affirmative the plaintiff’s claim arises under the tion of Switzerland. The plaintiff defense and complete preemption Convention, it denied the plain- argued that the United States was did not apply. The court therefore tiff’s motion to remand.31 the proper jurisdiction to commence

25 The Brief n Spring 2009

Published in The Brief, Volume 38, Number 3, Spring 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. this action because of the existence Airlines,37 the plaintiff was allegedly remain there.”39 The court deter- of some negotiations in the United injured during a turbulence incident mined that the plaintiff’s intent States between the parties concern- on a flight from Frankfurt, Germany, must be relevant to the phrase ing the shipment in question. The to Los Angeles. The defendant “fixed and permanent abode,” and court rejected the plaintiff’s attempt moved to dismiss the plaintiff’s that it was more likely than not to proceed with the claim in the action based upon lack of subject the plaintiff intended to return to United States, holding that the con- matter jurisdiction as set forth in the United States. Accordingly, the tract of transportation, the air way- Article 33, arguing that the plaintiff court found that the plaintiff prop- bill, stated clearly on its face that it had her principal and permanent erly satisfied the fifth jurisdiction of was issued in Mexico, and the court residence in Germany. The plaintiff, the Montreal Convention to main- dismissed the plaintiff’s action. It a U.S. citizen, admitted that at the tain an action in the United States. explained that the plaintiff could time of the incident she was living only bring the action in one of four and working in Germany, was trav- Code-Share Liability forums pursuant to Article 33 of eling on a round-trip ticket to return Since the Montreal Convention the Montreal Convention, none of to Germany, had bank accounts and took effect in the United States, few which would have been the United doctors in Germany, and received courts have considered the relation- States in this case. In cargo cases, her mail and maintained telephone ship between “actual carriers,” “con- unlike passenger cases, the fifth numbers in Germany. Addition- tracting carriers,” and “successive jurisdiction is not applicable.34 ally, the plaintiff admitted that she carriers.” Recent cases, however, In Aikpitanhi v. Iberia Airlines of sold her home in California more have addressed this liability issue. Spain,35 the court also found that than two years before the incident. Under the liability regime of the the plaintiff did not satisfy the juris- The plaintiff, however, maintained older Warsaw Convention, courts dictional requirements of Article a California driver’s license, had a had held that a passenger may seek 33 and no action could proceed in bank account in California, main- recovery only against the actual car- the United States. In Aikpitanhi, tained a storage facility and post rier, not the contracting carrier.40 In the plaintiffs’ decedent was being office box in California, voted in other words, only the operating car- deported from Spain to Nigeria, his U.S. elections by absentee ballot, rier that was performing the trans- home country, by Spanish authori- and filed U.S. tax returns. Most portation when the injury occurred ties. The plaintiffs alleged that he important to the Hornsby court’s could be held liable for a passenger’s was drugged and beaten by Span- reasoning, however, the plaintiff injury, not the carrier that only sold ish police authorities and forced declared that she never intended the ticket or operated a different to travel on the Iberia flight in an to become a permanent resident of segment of the transportation.41 unsafe condition, resulting in his Germany or any other country out- The drafters of the Montreal death onboard the aircraft. The side of the United States. Convention attempted to address plaintiffs alleged that although Ibe- According to Article 33(b), a issues that were arising with more ria’s head office was in Spain, it had passenger’s principal and perma- frequency because of increased registered to do business in Florida, nent residence is defined as “the code-sharing, where a passenger and thus it was domiciled in the one fixed and permanent abode purchases a ticket from one car- United States and there was proper of the passenger at the time of the rier but all or part of the carriage is jurisdiction there under Article accident. The nationality of the pas- performed by a different carrier. In 33. The plaintiffs also asserted that senger shall not be the determining a typical code-share flight, a pas- jurisdiction was proper under 28 factor in this regard.” In defining senger purchases a ticket from one U.S.C. § 1350, the Alien Tort Stat- the term “permanent abode,” the carrier (the contracting carrier) but ute. The court rejected the plain- court in Hornsby relied upon a defi- the carriage may be performed by tiffs’ argument that the Montreal nition from Black’s Law Dictionary another carrier (the actual carrier) Convention was not the exclusive as a “domicile or fixed home, which that has no contractual relationship cause of action and that registering the party may leave as his interest or with the passenger. to do business in a particular state whim may dictate, but which has no Article 39 of the Montreal Con- changed its domicile.36 Because present intention of abandoning.”38 vention, which evolved from the the plaintiffs could not satisfy the The court found further support in Guadalajara Convention of 1961,42 jurisdictional prerequisites of Article federal common law, which provides remedies this situation by provid- 33, the court lacked subject matter that “one does not abandon one’s ing the passenger with the option jurisdiction and accordingly dis- domicile simply by physically leav- of seeking damages from either the missed the plaintiffs’ complaint. ing the place; one must move to contracting carrier or the actual In Hornsby v. Lufthansa German a new location with the intent to carrier. This purpose was further

26 The Brief n Spring 2009

Published in The Brief, Volume 38, Number 3, Spring 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. evidenced by the presidential transmittal letter when the Convention The McCarthy court concluded was presented to the U.S. Senate: that more than one carrier— Articles 39-48 of the Conven- tion define the rights of passen- both the contracting and actual gers and consignors in operations where all or part of the carriage carriers—could be liable for a is provided by an airline that is not a party to the contract plaintiff’s injuries. of carriage (e.g., code-share operations, freight consolidators, etc.). The provisions follow the precedent set by the Guadalajara Convention. Pursuant to Article Recent decisions that have rely upon precedent interpreting the 40, when a claim arises under discussed these types of carriers Warsaw Convention “because the the Convention, a claimant may will assist litigants in determin- Montreal Convention differs from bring suit against the carrier from ing which carrier(s) may be liable the Warsaw Convention in a signifi- which the carriage was purchased under the Montreal Convention cant respect. In the Montreal Con- or against the code-sharing car- for injuries sustained during inter- vention, the drafters included an rier operating the aircraft at the national transportation. entire chapter dedicated to address- time of the accident.43 In McCarthy v. American Air- ing the distinction and relationship lines,45 which interpreted the defini- between a contracting carrier and Thus the addition of Article 39 pro- tion of “carrier” under the Montreal an actual carrier: Chapter V.”46 The vided passengers with the ability to Convention, the court noted that district court explained that, unlike seek damages from more carriers. the treaty provides for a new liabil- the Warsaw Convention, under the Article 36 of the Montreal ity regime whereby a passenger has Montreal Convention “where there Convention, “Successive Carriage,” a claim against both the contracting is a contracting carrier and an actual continued the principle from the carrier and the actual carrier and carrier, both carriers ‘shall, except as Warsaw Convention that, in the denied summary judgment for the otherwise provided in this Chapter, case of successive carriage, a person defendant contracting carrier. be subject to the rules of this Con- entitled to compensation under the In McCarthy, the plaintiff pur- vention, the former for the whole Convention has a cause of action chased a ticket with American Eagle of the carriage contemplated in the “only against the carrier which per- Airlines to travel from Georgetown, contract, the latter solely for the formed the carriage during which The Bahamas, to Miami, Florida. carriage which it performs.’ ” 47 the accident or delay occurred, save Pursuant to a contractual relation- The district court in McCarthy in the case where, by express agree- ship with American Eagle, Execu- thus concluded that more than one ment, the first carrier has assumed tive Airlines owned and operated carrier—both the contracting and liability for the whole journey.” In the flight for which the plaintiff actual carriers—could be liable for a the context of baggage or cargo, a purchased his ticket. On board the plaintiff’s injuries.48 cause of action is permissible against subject flight in Georgetown, the In In re West Caribbean Airways,49 the first carrier, last carrier, and the plaintiff, at the direction of a flight the court refined the definition of last carrier that performed the car- attendant, attempted to check his a “contracting carrier.” The case riage during which the destruction, carry-on baggage plane-side after involved an air crash of a West loss, damage, or delay took place. determining that it would not fit Caribbean Airways flight in Venezu- Article 39, regarding contract- in the overhead compartment or ela that was en route from Panama ing carriers and actual carriers, underneath his seat. The plaintiff to Martinique. The plaintiffs sued expressly excludes successive carri- proceeded to the rear door of the West Caribbean as well as Newvac ers from liability. According to the aircraft to get the attention of the Corporation, which had a “charter provision, if a carrier is considered baggage handlers on the ground. contract” with West Caribbean, a successive carrier, it cannot also The flight attendant allegedly under which West Caribbean leased be considered a contracting carrier touched the plaintiff, which caused its aircraft and crew to Newvac for for purposes of liability, as will be him to fall or jump out of the air- certain flights. Newvac, in turn, discussed below in Best v. BWIA craft and sustain bodily injuries. entered into a charter agreement West Indies Airways.44 The court specifically did not with Globe Trotter Agency, a travel

27 The Brief n Spring 2009

Published in The Brief, Volume 38, Number 3, Spring 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. agency, which sold tickets to pas- first reported decision in the United to Article 36(2), liability can only sengers for flights from Panama to States interpreting and clarifying attach to the carrier (LIAT) “which Martinique, including the flight in the relation between contracting performed the carriage during which question. The plaintiffs argued that carriers and successive carriers under the accident” occurred. there must be a contracting car- the Montreal Convention and pre- The plaintiffs argued BWIA was rier under the Montreal Conven- cluded liability based upon succes- liable as a contracting carrier within tion and maintained that Newvac sive carriage. the meaning of Article 39 and thus should be that contracting carrier In Best, the plaintiffs sought could be liable for a passenger’s inju- because it most closely fit the damages for personal injuries ries. The plaintiffs maintained that definition under the Convention. sustained when Karen Best was BWIA was a contracting carrier Newvac, however, argued that it forcibly removed from an interna- because BWIA sold Best her ticket could not be a contracting carrier tional flight. In August 2004, Best for transportation, which included because there were no passengers at purchased a ticket from BWIA for the Port of Spain–Grenada leg on the time it contracted with Globe round-trip transportation from New which the incident occurred. Trotter and, thus, it could not have York to Grenada via Port of Spain, In response, BWIA relied upon entered into a contract with any Trinidad. The itinerary provided for the specific language of the Con- passenger or anyone acting on a Best to travel on BWIA from New vention. First, Article 39 provides passenger’s behalf. York to Port of Spain and then on that contracting carrier liability does Because West Caribbean staffed another carrier, LIAT, from Port of not apply where there is successive and operated the flight by authority Spain to Grenada. The flight from carriage. Second, paragraph 3 of from Newvac, the court declined New York to Port of Spain was Article 1 specifically provides that to rigidly interpret the Montreal uneventful. Upon her arrival in successive carriers are those that Convention as requiring a direct Port of Spain, Best disembarked the provide carriage that is regarded by contract between Newvac and the BWIA flight, collected her checked the parties as a single operation. passengers. The court held that baggage, and proceeded to her flight. Because BWIA transported Best because Newvac and Globe Trot- Upon boarding the aircraft, from New York to Port of Spain as ter contemplated that the latter an unidentified man boarded and part of a single operation, BWIA would secure passengers for the advised Best that there had been should be considered a succes- flight, Globe Trotter acted on the a mistake and that she had to sive carrier. The court agreed that passengers’ behalf. The court also disembark. She refused. Another BWIA was a successive carrier.53 declined to adopt Newvac’s argu- man (believed to be a Trinidadian The court also agreed with ment that it could not be a “prin- Customs Officer) then boarded the BWIA’s arguments that Article 39 cipal” under Article 39 because aircraft and asked Best to disembark. liability typically applies to code- the travel agency was not its agent. Again she refused. He then forc- share arrangements and situations Interpreting “principal” as it was ibly removed Best from the aircraft, where a carrier leases the aircraft used in the Guadalajara Conven- shoving her down the portable and uses the crew of another carrier tion, the court found that the term stairs and onto the tarmac. Without to provide transportation. Con- merely clarified that carriers acting explanation, Best was then assisted tracting carrier liability does not, only as agents could not qualify as up from the tarmac and escorted however, apply to successive carri- contracting carriers.50 back onto the aircraft. ers. Accordingly, the court held that Accordingly, the court found that Best and her husband com- contracting carrier liability was not Newvac made a contract of carriage menced an action against BWIA applicable because the relationship as a principal with a party acting in New York state court, alleging between BWIA and LIAT was one on a passenger’s behalf, but another personal injuries to Best caused of successive carriage.54 entity actually performed the car- by the negligence of BWIA and a The court also held that Article riage under Newvac’s authority. loss of consortium claim by Best’s 36, discussing successive carri- Therefore, Newvac was a contract- husband. BWIA removed the ers, also precludes the existence ing carrier as defined by Article 39.51 action to federal court based upon of an implied agency relationship Expanding upon the contract- the applicability of the Montreal between BWIA and LIAT. Article ing carrier decisions of McCarthy Convention. After completion of 36 provides that a successive car- and In re West Caribbean Airways, discovery, BWIA moved for sum- rier may be liable for an accident a recent decision focused on the mary judgment, seeking dismissal of that occurs during another carrier’s interplay between contracting car- the plaintiffs’ complaint and arguing carriage, only “where, by express riers and successive carriers. Best v. that BWIA should be considered agreement, the first carrier has BWIA West Indies Airways52 is the a successive carrier and, pursuant assumed liability for the whole

28 The Brief n Spring 2009

Published in The Brief, Volume 38, Number 3, Spring 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. journey.” There was no evidence of Convention Article 55. It is well settled 4936737 (C.D. Ill. Nov. 17, 2008). any assumed liability. that courts may rely on cases interpreting 30. Id. at *2 (citing Rivet v. Regions Because BWIA was a succes- a provision of the earlier Warsaw Con- Bank of La., 522 U.S. 470, 475 (1998)). sive carrier and did not assume any vention where the equivalent provision 31. Id. at *3–4. responsibility for Best’s entire jour- in the Montreal Convention is substan- 32. See, e.g., Stanford v. Kuwait Air- ney, including the LIAT flight, the tively the same. See Paradis v. Ghana lines, 648 F. Supp. 657 (S.D.N.Y. 1986). court held, as a matter of law, that Airways, 348 F. Supp. 2d 106, 110–11 33. 539 F. Supp. 2d 1366 (S.D. Fla. BWIA could not be liable for Best’s (S.D.N.Y. 2004), aff’d, 194 F. App’x 5 2008). injuries and dismissed the plaintiffs’ (2d Cir. 2006). Indeed, the Senate For- 34. Id. at 1368. complaint.55 In today’s global econ- eign Relations Committee’s report on 35. 553 F. Supp. 2d 872 (E.D. Mich. omy, carriers will likely rely upon the Montreal Convention stated that the 2008). more code-share arrangements and negotiators intended to preserve the 70 36. Id. at 877. charter flights, and courts are likely years of Warsaw Convention precedents. 37. No. CV 07-7594, 2009 WL to continue to be faced with issues S. Exec. Rep. No.108-8, at 3 (2003). 116962 (C.D. Cal. Jan. 6, 2009). regarding the liabilities of actual 7. 525 U.S. 155 (1999). 38. Id. at *5. carriers, contracting carriers, and 8. Id. at 161. 39. Id. at *6. successive carriers in an increasingly 9. Ugaz v. Am. Airlines, 576 F. Supp. 40. See, e.g., Orova v. Nw. Airlines, complex aviation industry. ■ 2d 1354 (S.D. Fla. 2008). No. 03-4296-CIV, 2005 WL 281197 10. No. 07-13447, 2008 WL 2064800 (E.D. Pa. Feb. 2, 2005). Notes (E.D. Mich. May 13, 2008). 41. See, e.g., id.; Shirobokova v. CSA 1. Convention for the Unification 11. Id. at *3. Czech Airlines, 376 F. Supp. 2d 439 of Certain Rules for International Car- 12. Removal, pursuant to 28 U.S.C. (S.D.N.Y. 2005). riage by Air, opened for signature on § 1441, is permissible where a plaintiff 42. The Guadalajara Convention May 28, 1999, reprinted in S. Treaty Doc. could have originally brought his or her of 1961 introduced liability where a 106-45, 1999 WL 333292734 (Montreal action in federal court, based on a federal contracting carrier does not provide any Convention). court’s original jurisdiction. portion of the actual transportation but 2. Id. art. 1(1). 13. Knowlton v. Am. Airlines, No. simply contracts with the passenger for 3. Convention for the Unification of RDB-06-854, 2007 WL 273794, at *3 the air travel. See Paul S. Dempsey & Certain Rules Relating to International (D. Md. Jan. 31, 2007). Michael Milde, International Air Transportation by Air, concluded at 14. No. RDB-06-854, 2007 WL Carrier Liability: The Montreal Warsaw, Poland, October 12, 1929, 49 273794 (D. Md. Jan. 31, 2007). Convention of 1999, at 232–34 (2005). Stat. 3000, T.S. No. 876, 137 L.N.T.S. 15. Id. at *3 (citing Pinney v. Nokia, 43. See Letter of President Clinton 11 (1934), reprinted in S. Treaty Doc. No. Inc., 402 F.3d 430, 449 (4th Cir. 2005)). Approving the Montreal Convention 106-45, 1999 WL 33292734 (200), 3 16. Id. at *5. (Sept. 6, 2000), 106th Cong., 2d Sess., Av. Law Rep. (CCH) ¶ 27,011 (Warsaw 17. Id. Treaty Doc. 106-45 (2000). Convention). 18. Id. 44. 581 F. Supp. 2d 359 (E.D.N.Y. 4. S. Treaty Doc. 106-45, Letter of 19. No. CV 08-2256, 2008 WL 2008). Transmittal, IX. See Ehrlich v. Am. Air- 2117239 (C.D. Cal. May 15, 2008). 45. No. 07-61016-CIV-COHN, 2008 lines, 360 F.3d 366, 371 (2d Cir. 2004). 20. Id. at *4 (quoting El Al Israel WL 2704515 (S.D. Fla. June 27, 2008). 5. See Watts v. Am. Airlines, No. Airlines v. Tseng, 525 U.S. 155, 176 46. Id at *2. 1:07-cv-0434-RLY-TAB, 2007 WL (1999)). 47. Id. (citing Montreal Convention 3019344, at *2 (S.D. Ind. Oct. 10, 2007) 21. Id. at *5. art. 40). (“Despite the fact that the Montreal 22. 169 F.3d 1151 (8th Cir. 1999). 48. Id. at 3. Convention is a new treaty, it contains 23. Serrano, 2008 WL 2117239, at *6. 49. No. 06-22748-CIV, 2007 WL provisions which embrace similar lan- 24. Id. at *7. 5559325 (S.D. Fla. Sept. 27, 2007). guage as the Warsaw Convention so as 25. No. 08 C 50106, 2008 WL 50. Id. at *6. not to result in a complete upheaval of 4964277 (N.D. Ill. Sept. 12, 2008). 51. Id. the ‘common law’ surrounding the War- 26. Sompo Japan Ins., Inc. v. Nippon 52. 581 F. Supp. 2d 359 (E.D.N.Y. saw Convention.”). Cargo Airlines, 522 F.3d 776 (7th Cir. 2008). 6. The Montreal Convention com- 2008). 53. Id. at 364. pletely replaces the Warsaw Convention 27. Narkiewicz-Laine, 2008 WL 54. Id. system of liability but retains many of the 4964277, at *2. 55. Id. at 365. same provisions and terms as the original 28. Id. at *2. convention, as amended. See Montreal 29. No. 08-cv-4012, 2008 WL

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