The Montreal Convention, a treaty which became effective in the United States on November 4, 2003, governs the rights and liabilities of international air carriers and passengers. Among its more important provisions, Article 29 of the Montreal Convention states that “[i]n the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention 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.” Many courts have held that Article 29 completely preempts state law claims by passengers, although there is a split of authority on the topic. See, e.g. Hoffman v. Alitalia-Compagnia Aerea Italiano, S.P.A., No. Civ. A. 14-5201, 2015 U.S. Dist. LEXIS 55790, 21015 WL 1954461 (D.N.J. April 28, 2015).
Obviously, the language of Article 29 is broad, as it applies to “any action for damages, however founded.” However, Article 29 has some limitations. Specifically, it applies only to “carriage” of passengers. One question that arises is the definition of “carriage.” Need a passenger be in transit and on the aircraft for Article 29 to apply, or is “carriage” construed more loosely than this? Just how important is location under Article 29?
Not very, according to the relatively recent case of Lee v. AMR Corp., No. 15-2666, 2015 U.S. Dist. LEXIS 78930, 2015 WL 3797330 (E.D. Pa. June 18, 2015). In Lee, Plaintiff purchased a ticket to fly from New York to Belize, with multiple stops along the way. During one stop-over in Miami, Plaintiff approached the carrier’s ticket counter to obtain a boarding pass for the next leg of her flight. The ticketing agent determined that Plaintiff did not have the required visa to board the onward flight to Belize (although it appears the agent may have been mistaken in this belief). Consequently Plaintiff missed her flight, and brought suit in state court to recover for the damages caused by the delay. Carrier removed her claim to federal court on the basis of federal question jurisdiction, asserting that the claim was preempted by Article 29.
Plaintiff sought remand to state court on the grounds that the Montreal Convention was inapplicable. Specifically, she argued that her claim did not involve “carriage” as required by the Convention, as she was never actually allowed to board the flight to Belize, but instead remained on the ground during the events that formed the basis for her lawsuit.
Finding no cases which interpreted this issue under the Montreal Convention, the court explored a number of cases decided under Montreal’s predecessor, the Warsaw Convention. These cases held that “carriage” extends beyond “actual travel” and into the realm of pre-boarding activities, including activities at the ticketing stage. Having noted that that the Montreal Convention is generally interpreted using case law construing the Warsaw Convention, the court followed the logic of these earlier cases and held that Plaintiff’s interaction with the ticketing agent constituted “carriage” under the Montreal Convention. Thus, plaintiff’s claim was covered by the Montreal Convention, and her motion to remand was denied.
This case is interesting for a number of reasons. First, it clearly affirms that the boundaries of a delay claim under the Montreal Convention are the same as those under the Warsaw Convention. Specifically, a plaintiff need not literally be on the aircraft in order for the Montreal Convention to apply to a delay claim
Additionally, the scope of the holding is just ambiguous enough that it may be ammunition for a Montreal Convention preemption argument beyond the area of delay claims. While this is far from a sure bet, as the plaintiff in Lee was only asserting a delay claim, this case warrants a review from anyone considering such an argument.