At issue in the motion to dismiss before me is whether the two-year statute of limitations under the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45 (entered into force Nov. 4, 2003) (the "Montreal Convention") forecloses a passenger's claim against an airline. The passenger's overnight flight took off from Boston on March 30, 2015, arriving in London on March 31, 2015, where the passenger says he was confined without justification
Concluding that the Montreal Convention applies because the personal injury alleged by plaintiff did not extend beyond his disembarkation process and, consequently, that potentially applicable municipal law - which would provide a more generous limitation period of not less than three years - is preempted by the international law regime of the Montreal Convention, I will allow the motion to dismiss.
I. LEGAL LANDSCAPE
An international air carriage and transportation convention
Under Art. 17, ¶ 1 of the Montreal Convention, a "carrier is liable for damage sustained in case of ... bodily injury of a passenger upon condition only that the accident which caused the ... injury took place on board the aircraft or in the course of any of the operations of embarking and disembarking." Under Art. 35, ¶ 1 of the Montreal Convention, "[t]he right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination ...."
If the injury alleged is within the scope of Art. 17, ¶ 1, the Convention's statute of limitations (Art. 35, ¶ 1) will bar Dr. Dagi's claim. In that circumstance, there will be no need for further recourse to choice-of-law analysis regarding alternative statutes of limitation.
II. FACTUAL BACKGROUND
The facts alleged in the operative complaint can be summarized briefly; they are recited more fully when relevant to the analysis in Section III of this Memorandum.
As the aircraft on which the plaintiff, T. Forcht Dagi, M.D., began descent to Heathrow Airport, the bag of a Delta airline flight attendant (the "Attendant") was reported over the aircraft intercom as having disappeared. The Attendant loudly and falsely accused Dr. Dagi of stealing the bag. Dr. Dagi's onboard luggage was searched by the Attendant, but the missing bag was found elsewhere on the plane. The Attendant then "loudly accused" Dr. Dagi of "probably" having "thrown" the bag to the other location.
Once the aircraft landed, the Attendant prevented Dr. Dagi from leaving the aircraft before the other passengers. Upon reaching the mobile section of the Jetway connecting the aircraft to the terminal, the Attendant directed a uniformed Delta ground employee to detain Dr. Dagi and turn him over to authorities. The Attendant ordered Dr. Dagi to surrender his passport to the Delta ground employee.
The Delta ground employee then ordered Dr. Dagi to follow her to another location within the Heathrow Airport terminal until the police arrived. This involved a walk of ten to fifteen minutes to a location four hundred yards from the aircraft and the Jetway. The terminal through which Dr. Dagi was marched was not itself leased or under the control of Delta; it was also utilized by other airlines and their passengers. Dr. Dagi was subject to the sole direction of Delta employees during his relevant passage through the terminal. Following the initial walk through the terminal, Dr. Dagi was marched back to the vicinity of the aircraft where he was handed over to a Delta supervisor. Dr. Dagi, who was recovering from leg surgery, suffered significant pain while being forced to transport his carry-on luggage without assistance.
After the Delta supervisor to whom Dr. Dagi was delivered talked with a British police officer by phone, the phone was turned over to Dr. Dagi who was interviewed by the police officer. Following this phone interview, the police officer told Dr. Dagi he was free to go, and he proceeded through immigration without further restraint by Delta employees.
III. ANALYSIS
For purposes of determining whether claims arise from "any of the operations of ... disembarking," Art. 17, ¶ 1, under the Montreal Convention, the First Circuit has outlined a "three-pronged inquiry" involving evaluation of "(1) the passenger's activity at the time of injury, (2) his or her whereabouts when injured, and (3) the extent to which the carrier was exercising control at the moment of injury." McCarthy v. Nw. Airlines, Inc. ,
Review of a pair of illustrative cases involving embarkation will be helpful in getting a sense for how courts construe the terms "embarking" and, by implication, "disembarking."
Day v. Trans World Airlines, Inc. ,
already surrendered their tickets, passed through passport control, and entered the area reserved exclusively for those about to depart on international flights. They were assembled at the departure gate, virtually ready to proceed to the aircraft. The passengers were not free agents roaming at will through the terminal. They were required to stand in line at the direction of TWA's agents for the purpose of undergoing a weapons search which was a prerequisite to boarding.
By contrast, in McCarthy , the plaintiff, due to her tardy arrival at the airport for her flight, was escorted by an airline agent through the airport terminal to the international boarding area.
With that general framework in mind, I now turn to unbundling the three distinctive factors identified by the First Circuit for consideration in the analytical process. It must bear reemphasis, however, that these factors should not be conceived as separate strands, but rather are "inextricably intertwined."
A. Location
The relevant locational facts, as alleged, began onboard the aircraft with the initial accusation by the Attendant. Dr. Dagi avers that "[o]nce the Aircraft landed, the Attendant prevented the Plaintiff from leaving the Aircraft before the other passengers had done so." This allegedly tortious conduct then continued on the Jetway, which "connect[s] the Aircraft to the Terminal." It was from that point other airline employees took Dr. Dagi on a walk of ten to fifteen minutes duration through the terminal to a point approximately 400 yards away, kept him at that location for 15 minutes, and then escorted him on another walk of ten to fifteen minutes back to the vicinity of the aircraft.
The location of the alleged incident through the terminal justifies classifying it as occurring during disembarking.
In MacDonald v. Air Canada ,
Spatially, the relevant events began on and continued seamlessly at Delta's direction directly from the aircraft and then back to its vicinity during the process of disembarkation.
Temporally, the events in question began on the aircraft and unfolded in an unbroken chain until the police officer terminated the airline's direction and control. There was no intervening period between Dr. Dagi leaving the aircraft itself and the alleged tortious conduct. Instead the tortious conduct involved a continuous course of conduct of slightly less than an hour that began with directions inside the cabin of the plane and ended within the terminal, just a walking distance away from the aircraft.
As is apparent, and as anticipated by the First Circuit in McCarthy , the factor of control is intertwined with the factor of location.
To use the words of McCarthy , the incidents alleged were never "far removed" from the threshold point in the process of disembarkation,
B. Activity at Time of Injury
The activity in which Dr. Dagi was compelled to be engaged at the time of the injury is plainly material to the question whether he was a passenger still engaged by the operations of disembarking and thus subject to the Montreal Convention.
Here, Dr. Dagi alleges he was falsely imprisoned when he was disembarking. To be sure, the aircraft's journey had ended and Dr. Dagi wanted to get on with his activities in England. But the relevant events started on the aircraft, proceeded into the disembarkation process, and had not yet resulted in Delta surrendering him to either the police or immigration authorities. This is not a circumstance, like Schroeder or Martinez , where a plaintiff had moved on to activities uncontrolled by the airline or its agents following disembarkation operations.
C. Control
In his opposition to Delta's motion to dismiss, Dr. Dagi concedes that he was "under the control of the airline during the entire duration of his detention ...."
Dr. Dagi's argument is unpersuasive for three basic reasons.
First, his suggested definition of "control" does not conform to the ordinary meaning of the word in English or American dictionaries. The word "control" is not limited to "routine" circumstances. In the Oxford English Dictionary, the word control means in this context "[t]he act or power of directing or regulating; command,
Second, Dr. Dagi suggests that a broad definition of control would be "pernicious" because it would "empower an airline, with legal impunity under both the Convention and local law, to detain an arriving passenger at any location of its choosing in an arrival 'secure area,' and, further, to do so for as long as is its pleasure." Other courts have rejected such "policy" arguments for ignoring the plain understandings reached in the Convention. I do so as well. The definition and its implications are part and parcel of the choices made by the drafters. See, e.g. , King v. Am. Airlines, Inc. ,
Third, it appears Dr. Dagi overstates the restrictions on recovery from the airline, and hence the deterrent effect of litigation for damages, if timely brought under the Montreal Convention. Because, as alleged, the claim is based on the wrongful acts of the airline's servants or agents and not on acts of a third party, under the Montreal Convention, the strict liability damages limit under Art. 21, ¶ 1 could have been exceeded to the extent Dr. Dagi could prove such damages. Id. at ¶ 2. Thus, reference in the case law regarding the manner in which "the Convention massively curtails damage awards ...," Turturro v. Continental Airlines ,
Under any of the three potentially applicable regimes for liability, Dr. Dagi likely would have been able to recover for his physical injuries and associated mental suffering. See, e.g. , Ehrlich v. Am. Airlines, Inc. ,
As alleged, the complaint before me does not present the severe limitation of denial of recovery under the Montreal Convention for personal injury not involving bodily injury. See E. Airlines, Inc. v. Floyd ,
Dr. Dagi would not be able to recover punitive damages (referred to as "exemplary damages" in England) under the Montreal Convention. See Montreal Convention, Art. 29. That is similarly the law of England, see Rookes v. Barnard [1964] A.C. 1129 (HL) (limiting exemplary damages to three limited scenarios, none of which are applicable in Dr. Dagi's case), and Massachusetts. See Aleo v. SLB Toys USA, Inc. ,
For all practical purposes, then, the Montreal Convention does not by terms categorically provide the potential for any less generous damage recovery than would the law of England or Massachusetts if, absent preemption, the municipal law supplied by either of those jurisdictions were to govern this dispute.
In short, even if I were authorized - which I am not - to rewrite the terms of the Montreal Convention to avoid preemption and employ the substantive law of England or Massachusetts, it does not appear that any significant benefit involving more generous damages would accrue to Dr. Dagi. Thus, by permitting the statute of limitations for the Montreal Convention to run, Dr. Dagi lost not only the right to pursue damages essentially no less generous than would have been available under the law of England or Massachusetts, he also lost the opportunity to deploy the Convention as a tool to deter airlines from the "pernicious" conduct of unlawfully and unreasonably detaining passengers during disembarkation operations.
D. Summary on Disembarkation
In summary, after evaluating the three-factor analysis directed by the First Circuit in McCarthy , I conclude that the factors considered separately and together
IV. CONCLUSION
Dr. Dagi's complaint must be read to allege that he was engaged in operations of disembarking at the time of the challenged conduct by Delta and its employees. Dr. Dagi's municipal law claims are, therefore, preempted by the Montreal Convention because the Convention's limitation provision extinguished the liability for the injury alleged in his complaint well before this action was filed.
Accordingly, Delta's motion [Dkt. No. 7] to dismiss based on the statute of limitations established by the Montreal Convention is hereby GRANTED and Delta's belated motion [Dkt. No. 16] to file an amended motion to dismiss is therefore treated as MOOT. The Clerk shall terminate this case.
Notes
I share the concern of the Reporter to an ongoing Restatement of the Law (Third) Torts project that conventional nomenclature for the torts of false imprisonment and, derivatively, false arrest may be confusing or misleading. See generally Restatement (Third) Torts: Intentional Torts to Persons § 7 Reporter's Notes cmt. a ( Am. Law Inst. , Tentative Draft No. 3, 2018) (false imprisonment); see also
Consideration of the case law regarding two international air carriage Conventions is appropriate, although only the Montreal Convention is directly applicable in this case. The Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929,
The preemptive effect of the Montreal Convention is the sole source of any time bar to Dr. Dagi's complaint. Absent the preemptive effect of the Convention, a federal court sitting in diversity would otherwise apply the choice-of-law rules of the forum state. See Klaxon Co. v. Stentor Elec. Mfg. Co. ,
Dr. Dagi, in his opposition to the motion to dismiss, attempts to split his claims against Delta into separate actionable pieces subject to the law of separate jurisdictions by arguing that once he had reached the Jetway, Delta's actions became actionable under the law of England. This approach would avoid the Convention's statute of limitations bar for conduct thereafter.
I conclude Delta's alleged tortious activity as alleged, however, took place during "the operations of disembarking" in a single, continuous course of conduct that began in the cabin of the airplane and continued through the Jetway and into the terminal until supervening direction by the police officer left Dr. Dagi free to leave Delta's control. Dr. Dagi's effort to transmute his claims into more than one cause of action (i.e., pre-Jetway, presumably governed by the Montreal Convention, and post-Jetway, presumably covered by the law of England) to avoid the preemptive effect of the Montreal Convention (and its associated statute of limitations) for the post-Jetway operations distorts beyond recognition the gravamen of the single tort by a single defendant alleged in the factual assertions of the Amended Complaint.
This circumstance effectively distinguishes Dr. Dagi's case from other disembarkation cases in which under settled case law a plaintiff's passage through the terminal after emerging from the aircraft was held not to be part of the airline's operations of disembarkation. See, e.g. , Elnajjar v. Northwest Airlines, Inc. ,
Massachusetts choice-of-law principles, otherwise applicable in this diversity action as the law of the forum, Klaxon Co. ,