United States: Eastern District Of Pa. Again Recognizes Montreal Convention Exclusively Governs Claims

Action Item: Until there is appellate resolution of the preemptive effect of the Montreal Convention, airlines sued in state court over damages allegedly arising during the course of international transportation should contact an experienced aviation attorney immediately to discuss whether the case should be removed to federal court based upon federal question jurisdiction, and determine the best arguments to be made in support of complete federal preemption under the Convention.

On June 18, 2015, the Eastern District of Pennsylvania held for the third time that "the Montreal Convention preempts all state law claims within its scope."¹ Thus, in this district, airline defendants can reasonably expect that for claims arising during international carriage for (1) injuries to persons, (2) damage to cargo, and (3) damages from delay, the Montreal Convention applies, and grants them access to a federal forum.²

This decision is especially notable because the Supreme Court has not yet addressed the preemptive effect of the Convention. Moreover, few circuit courts have addressed the issue, and district courts nationwide disagree over whether the Convention exclusively governs all claims within its substantive scope. Indeed, as Lee recognized, several courts in the nearby District of New Jersey have held that the Convention "does not completely preempt state law claims." 2015 WL 3797330, at *2 n.2.

In DeJoseph v. Continental Airlines, Inc.,³ for example, the New Jersey federal court based its finding against complete preemption on the language of the Convention. Specifically, Article 29 reads that "[i]n the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract 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." The court in DeJoseph reasoned that "[t]he provision's language 'whether under this Convention or in contract or in tort or otherwise' expressly contemplates the application of the Convention's limits to all types of cases within its scope—whether directly brought under the Convention or under state/local tort or contract law."⁴ The court held that the very language of the Convention "at least admits the possibility of a cause of action brought 'in contract or in tort,' and suggests the application of the Convention's limits to such a claim. The text of Article 29 thus suggests that the Montreal Convention does not completely preempt all state law claims at their inception, but instead operates as an affirmative defense."⁵

Despite the opinions of a majority of New Jersey federal courts that have considered this issue, the Eastern District of Pennsylvania Court in Lee noted that "[g]iven the weight and persuasiveness of authority finding preemption...the Court cannot concur with the reasoning set forth by the District of New Jersey."⁶

In summary, while Third Circuit, or, better yet, Supreme Court consideration would clarify this issue, the Eastern District of Pennsylvania is currently amenable to offering a federal forum in which airlines can defend themselves against numerous Montreal Convention claims arising from international transportation. But the decision to remove a case must be done within 30 days of service of the complaint. Most importantly, the decision to remove will greatly influence the outcome of the litigation, including whether or not the airline ends up in an arguably more pro-defense forum, i.e., federal court versus state court.

Footnotes

1. Lee v. AMR Corp., No. 15-2666, 2015 WL 3797330, at *2 (E.D. Pa. Jun. 18, 2015). See also Smith-Ligpn v. British Airways Worldwide, No. 11-7437, 2012 WL 1382468, at *2 (E.D. Pa. Apr. 20, 2012) ("the Montreal Convention preempts all damages claims, whether they arise out of federal or state law, that fall within the Convention's scope of liability"); Schaefer-Condulmari v. US Airways Grp., Inc., No. 09-1146, 2009 WL 4729882, at *9 (E.D. Pa. Dec. 8, 2009)(the Convention is "the exclusive remedy for any claims within its scope").

2. See Articles 17-19 of the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, I.C.A.O. 9740, S. Treaty Doc. No. 106–45, 1999 WL 33292734 (2000) ("Montreal Convention").

3. 18 F. Supp. 3d 595, 603 (D.N.J. 2014).

4. 18 F. Supp. 3d at 603.

5. Id. See also Hoffman v. Alitalia-Compagnia Aerea Italiana S.P.A., No. 14-5201, 2015 WL 1954461, at *3 (D.N.J. Apr. 28, 2015) (adopting the reasoning in DeJoseph); Constantino v. Continental Airlines, Inc., No. 13-1770, 2014 WL 2587526, at *4 (D.N.J. Jun. 9, 2014) (same). But see Rogers v. Continental Airlines, No. 10-3064, 2011 WL 4407441, at *4-5 (D.N.J. Sep. 21, 2011) ("the Montreal Convention has been held to preempt all state law claims within [its] scope...the Montreal Convention preempts [plaintiff]'s state law claims" for injuries sustained during embarkation) (internal quotations omitted).

6. 2015 WL 3797330, at *2 n.2.

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