July 14, 2015

Court Denies Remand in Montreal Convention Delay Case

Holland & Knight Aviation Law Blog
Judy R. Nemsick

In Lee v. AMR Corp., No. 15-2666, 2015 WL 3797330 (E.D. Pa. June 18, 2015), the district court denied plaintiff's motion to remand an action seeking damages for denied boarding arising from improper travel documents. Plaintiff had purchased roundtrip tickets for travel beginning and ending in New York that was to include stops in Miami, Belize and Guatemala. The airline refused to allow plaintiff to board the Miami-Belize flight because she lacked a visa. Plaintiff claims the airline misinterpreted the immigration laws of Belize, causing her to miss the flight to Belize and purchase a ticket to Guatemala instead. The complaint sought more than $5,000 in damages.

The airline removed the case to federal court on the ground that plaintiff's state law claims were governed, and completely preempted, by the Montreal Convention. Plaintiff did not dispute the preemptive effect of the treaty, but instead argued that her claim fell outside its scope because she was never permitted to even board the aircraft and thus did not engage in "international carriage." 

The court disagreed, holding that such a restrictive interpretation of "carriage" disregards Article 19 of the treaty, which establishes carrier liability for delays. According to the court, plaintiff's claim was not for nonperformance by the airline. Rather, plaintiff was denied boarding because the airline believed that she lacked the requisite visa, which caused a delay in her travel.1 Plaintiff then changed the destination of her flight to Guatemala, the next destination on her trip, instead of giving the airline an opportunity to perform the contract of carriage.

Particularly significant is that the Pennsylvania district court expressly disagreed with several recent remand decisions issued by sister courts in New Jersey holding that the Montreal Convention does not completely preempt state law claims.2 The court rejected the reasoning in those cases based on "the weight and persuasiveness of authority finding preemption."3


1 See, e.g., Paradis v. Ghana Airways, Ltd., 348 F. Supp. 2d 106 (S.D.N.Y. 2004) (Article 19 governed claims arising from cancellation of return flight); Ikekpeazu v. Air France, No. Civ. A. 04-0711, 2004 WL 2810063 (D. Conn. Dec. 6, 2004) (Article 19 governed passenger's claims resulting from delay in return travel when the airline confiscated his passport by mistake).

2 See, e.g., Hoffman v. Alitalia-Compagnia Aerea Italiana, S.P.A., No. Civ. A. 14-5201, 2015 WL 1954461, at *3 (D.N.J. Apr. 28, 2015) (granting remand); DeJoseph v. Cont'l Airlines, Inc., 18 F. Supp. 3d 595, 600 (D.N.J. 2014) (same).  

3 See, e.g., Husmann v. Trans World Airlines, Inc., 169 F.3d 1151 (8th Cir. 1999) (holding Warsaw Convention completely preempts state law claims); Garrisi v. Northwest Airlines, Inc., No. Civ. A. 10–12298, 2010 WL 3702374, at *5 (E.D. Mich. Sept. 16, 2010) (Warsaw and Montreal Conventions preempt all state law claims for matters within their scope); Schaefer–Condulmari v. U.S. Airways Grp., Inc., No. Civ. A. 09–1146, 2009 WL 4729882, at *8 (E.D. Pa. Dec. 8, 2009) (same); Weiss v. El Al Israel Airlines, 433 F. Supp. 2d 361, 365 (S.D.N.Y. 2006) (Montreal Convention provides the sole cause of action for redress if an action for damages falls within one of its three damage provisions), aff'd, 309 Fed. Appx. 483 (2d Cir. 2009).

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