Removal Jurisdiction Under the Montreal Convention Nicholas D
Total Page：16
File Type：pdf, Size：1020Kb
Journal of Air Law and Commerce Volume 75 | Issue 2 Article 4 2010 The iM sleading Legacy of Tseng: Removal Jurisdiction under the Montreal Convention Nicholas D. Welly Follow this and additional works at: https://scholar.smu.edu/jalc Recommended Citation Nicholas D. Welly, The Misleading Legacy of Tseng: Removal Jurisdiction under the Montreal Convention, 75 J. Air L. & Com. 407 (2010) https://scholar.smu.edu/jalc/vol75/iss2/4 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Journal of Air Law and Commerce by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. THE MISLEADING LEGACY OF TSENG: REMOVAL JURISDICTION UNDER THE MONTREAL CONVENTION NICHOLAS D. WELLY* TABLE OF CONTENTS I. INTRODUCTION.... .............. ........ 408 II. THE FEDERAL PREEMPTION DOCTRINE ....... 409 A. FEDERAL LAW AS THE "SUPREME LAW OF THE LAND"............................................. 409 B. THE EVOLUTION OF FEDERAL PREEMPTION ...... 411 C. THE "COMPLETE PREEMPTION" DOCTRINE ....... .412 1. Finding Complete Preemption .............. 414 2. Federalism Concerns Arising from Complete Preemption.......... ................. 415 III. THE WARSAW SYSTEM AND THE MONTREAL CONVENTION ............................. 416 A. THE WARSAW CONVENTION-ESTABLISHING A SYSTEM OF UNIFORMITY ......................... 416 B. THE MONTREAL CONVENTION-PUTTING THE PASSENGER FIRST ................................ 419 IV. THE MISLEADING LEGACY OF EL AL ISRAEL AIRLINES, LTD. V TSENG.................... 421 A. BACKGROUND & PROCEDURAL HISTORY.......... 421 B. OPINION OF THE COURT ........................ 423 * J.D., Certificate in Remote Sensing, Air & Space Law, The University of Mississippi School of Law (2010); M.S., Webster University (2005); B.A., Ohio Wesleyan University (2000). Law Clerk to The Honorable Daniel P. Jordan, U.S. District Court, Southern District of Mississippi. Mr. Welly was listed in the 2010 class of Who's Who Among Students in American Colleges and Universities. He is a Major in the NYANG and has served more than ten years in the USAF in a variety of air and space operations assignments. The opinions expressed in this paper are those of the author and do not reflect the official position of the United States government. The author would like to thank Professor Jacqueline Etil Serrao for her tireless assistance with this article. Finally, the author would like to thank his wife, Emily Welly, for her love and patience during the previous three years. 407 408 JOURNAL OF AIR LAW AND COMMERCE [75 1. Majority ............................. 423 2. Justice Stevens's Dissent .................. 425 V. TURMOIL IN THE LOWER COURTS- COMPLETE PREEMPTION IN LIGHT OF TSENG .................................... 425 A. COURTS IN THE 2ND, 5TH, 7TH, AND 9TH CIRCUITS HAVE REJECTED COMPLETE PREEMPTION ................................ 426 B. COURTS IN THE 2ND, 4TH, 8TH, AND 11TH CIRCUITS HAVE PERMITTED COMPLETE PREEMPTION ................................ 429 VI. RESOLVING THE ISSUE IN FAVOR OF THE PASSENGER ............................... 430 A. SCOPING THE CAUSE OF ACTION-INSIDE OR OUTSIDE THE TREATY REGIME ................... 431 B. How EXCLUSIVE Is "EXCLUSIVE"-STATE LAW REMEDIES ..... ............................. 432 VII. CONCLUSION ............................. 433 I. INTRODUCTION and often inconsistent history FOLLOWINGin the lower federalA highly courts, debated in 1999, the Supreme Court pro- claimed that the Warsaw Convention created an exclusive cause of action and provided the sole remedy to passengers injured in international air transport.' That same year, the International Civil Aviation Organization (ICAO) promulgated the Montreal Convention, establishing unified rules to replace the various agreements of the Warsaw System in international aviation regu- lation.2 However, the Montreal Convention represented a stark shift in policy for the international aviation legal regime. Whereas the Warsaw Convention was birthed at the advent of the aviation industry and reflected States' interests in promoting industry growth by limiting carrier liability, the Montreal Con- vention codified a new emphasis on protecting passenger rights.3 While much of the language of the two treaties is identi- 1 See El Al Isr. Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999); Convention for the Unification of Certain Rules Relating to International Transportation by Air, opened for signature Oct. 12, 1929, 49 Stat. 3000, 137 L.N.T.S. 11 [hereinafter War- saw Convention]. 2 Convention for the Unification of Certain Rules for International Carriage by Air, openedfor signatureMay 28, 1999, S. Treaty Doc. No. 106-45, 2242 U.N.T.S. 309 [hereinafter Montreal Convention]. 3 See discussion infra Part III.B. 2010] THE MISLEADING LEGACY OF TSENG 409 cal, and while the Montreal Convention has attempted to clarify ambiguities in the Warsaw Convention, questions still remain as to the scope of actions and remedies available under the Mon- treal Convention. One subtle yet critical issue arising from the debate pertains to the jurisdiction of federal courts. In particu- lar, federal courts have struggled to interpret the language of El Al Israel Airlines, Ltd. v. Tseng in the face of a plaintiffs motion to remand a case originally removed from state court on the basis of complete preemption. Complicating the matter is the fact that the United States now operates under a hybrid system in which the Montreal Convention has superseded the Warsaw Convention in most, but not all, cases.5 Consequently, courts that viewed Tseng as opening the door for removal of claims aris- ing out of international air carriage under the older Warsaw Sys- tem have carried this interpretation over to the modernized Montreal Convention.6 However, other courts narrowly con- strue the scope of the treaties, allowing passengers to bring art- fully pleaded state law claims in lieu of federal claims, thereby avoiding the conditions and limits of the treaties and remaining in state court. This article attempts to resolve the dispute. Part II presents a discussion of preemption, distinguishing between the effects of conflict preemption and the "complete preemption" doctrine. Part III introduces the Warsaw and Montreal Conventions, briefly comparing their historical development and the parallel provisions of the two treaties. Part IV reviews the Supreme Court's landmark decision El Al IsraelAirlines, Ltd. v. Tseng, while Part V illustrates the divergent interpretations of the Conven- tions in light of Tseng. Finally, Part VI attempts to reconcile the split of authority regarding complete preemption in interna- tional aviation litigation in favor of the passenger by focusing on the provisions of the newer Montreal Convention and its passen- ger-centric themes. II. THE FEDERAL PREEMPTION DOCTRINE A. FEDERAL LAW AS THE "SUPREME LAW OF THE LAND" The basis for the preemption doctrine is the Supremacy Clause of the Constitution, which states: 4 525 U.S. 155. 5 See discussion infra Part III.B. 6 See discussion infra Part V.B. 7 See discussion infra Part V.A. 410 JOURNAL OF AIR LAW AND COMMERCE [75 This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.' By virtue of this provision, every federal law has the power to preempt state law. But this provision is not as broad-sweeping as it may seem. Courts confronted with the task of applying both state and federal law are directed to disregard state law in favor of the federal rule only if the two are in direct conflict-that is, only where applying state law would necessitate violating federal law.' Thus, scholars have asserted that the Supremacy Clause actually provides three separate rules ofjudicial interpretation. 0 First, the rule of applicability makes valid federal law part of the same body of jurisprudence as state law." Second, the rule of priority declares that within that body of jurisprudence federal law is "supreme."12 Finally, "a global non obstante provision" di- rects "courts not to apply the traditional presumption against" preemption "in determining whether federal law contradicts state law."13 The canonical interpretation of the Supremacy Clause was originally delivered in Osborn v. Bank of the United States, in which the Supreme Court held that a claim "arises under" federal law so long as a question of federal law "forms an ingredient of the original cause."14 But federalism concerns caution against pre- emption of state laws unless Congress has demonstrated its in- 8 U.S. CONST. art. VI, cl. 2. 9 Caleb Nelson, Preemption, 86 VA. L. REv. 225, 252 (2000) ("Under the Supremacy Clause, any obligation to disregard state law flows entirely from the obligation to follow federal law."). 1o Id. at 261. 11 Id. at 246. 12 Id. at 251. ("[T]he rule of priority comes into play only when courts cannot apply both state law and federal law, but instead must choose between them."). 13 Id. at 255. [T]he non obstante provision does caution against straining the meaning of a federal law to avoid a contradiction with state law. Unless there is some particular reason (over and above the general presumption against implied repeals) to believe that Congress meant to