Recent developments under the Montreal Convention.

• Author: Weigand, Tory A.

THE UNIFICATION of Certain Rules for International Carriage by Air (the "Montreal Convention of 1999" or "Montreal Convention"), (1) came into force on November 4, 2003, updating and replacing the uniform system of liability for international air carriers previously established by its predecessor, the 1929 Warsaw Convention. (2) There are currently 87 parties to the Montreal Convention with Australia being one of the most recent ratifiers, effective January 24, 2009.

In contrast to the Warsaw Convention's goal of "limiting the liability of air carriers in order to foster the growth of the fledgling commercial aviation industry," the Montreal Convention was adopted with the goal of "ensuring protection of the interest of consumers in international carriage by air and the need for equitable compensation based on principles of restitution." (3) The Montreal Convention provides a liability system for the delay, loss or damage to baggage or cargo as well as the delay, injury or death of passengers arising from international air carriage. It effectively reduces six different legal instruments under the Warsaw scheme to a single instrument. (4) Another primary change is that the Montreal Convention establishes a two tier system of liability for personal injury and/or death. The first tier imposes strict liability up to 100,000 Special Drawing Rights ("SDR's") (5) irrespective of a carrier's fault, with the second tier allowing for recovery beyond 100,000 SDR's if the carrier was at fault.

Nonetheless, the desire for uniformity in the laws governing carrier liability arising from international air travel remained, as did many of the terms and language of the Warsaw Convention. (6) While a new consumer protection policy was stated, the prior and existing jurisprudence regarding liability rules was retained, with the specific purpose of not disrupting the existing jurisprudence. (7) The drafters fully expected that the Montreal Convention would be construed consistently with the precedent developed under its predecessor. (8) Not surprisingly, disputed issues under the prior Warsaw scheme continue to emerge under the new scheme. This article addresses many of these disputed areas, particularly in those areas where the Montreal Convention has impacted the precedents established under the Warsaw Convention.

Nonetheless, the desire for uniformity in the laws governing carrier liability arising from international air travel remained, as did many of the terms and language of the Warsaw Convention. (9)

While a new consumer protection policy was stated, the prior and existing jurisprudence regarding liability rules was retained, with the specific purpose of not disrupting the existing jurisprudence. (10) The drafters fully expected that the Montreal Convention would be construed consistently with the precedent developed under its predecessor. (11) Not surprisingly, disputed issues under the prior Warsaw scheme continue to emerge under the new scheme. This article addresses many of these disputed areas, particularly in those areas where the Montreal Convention has impacted the precedents established under the Warsaw Convention.

1. Preemption/Exclusivity

   One continuing area of dispute is the preemptive scope of the Convention. Since a primary goal of the Convention is uniformity in interstate carriage, it is not surprising that the preemptive scope of the Convention has been deemed broad by many courts, who have held that the Convention completely preempts all claims arising out of international flight. Nonetheless, other courts have held that the Convention's preemptive reach is not absolute, and litigation continues over the particular circumstances when state or local law may apply.

   Article 29 of the Convention sets forth a broad preemption provision, which states:

   In 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 use of the encompassing language "any action for damages, however founded", together with "whether under this Convention or in contract or in tort or otherwise," would indicate a sweeping exclusivity. Coupled with Article l's dictate that the Convention "applies to all international carriage of persons, baggage or cargo," the text of the Convention argues for complete preemption. Indeed, in Schaefer-Condulmari v. U.S. Airways Group, a Federal District Court in Pennsylvania recently noted that the reference in Article 29 to claims "in contract or in tort or otherwise" was not intended to reflect that such claims have an independent existence outside the terms of the Convention and that the intent was for complete preemption. (12)

   The United States Supreme Court has not yet addressed the preemptive scope of the Montreal Convention but did so under the Warsaw Convention. In El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, (13) it held that the Warsaw Convention governed to the exclusion of state law claims that fell within the treaty's scope. (14) In Tseng, the passenger asserted that her state law rights were violated by the airline's security search and check prior to boarding an international flight. It was not contended by either party that the search constituted an "accident" under Article 17 or that the passenger suffered a bodily injury. Rather, the issue was thus whether an action under local law is available where the Convention did not provide a remedy. According to the Court, "recovery for a personal injury suffered 'on board [an] aircraft or in the course of any of the operations of embarking or disembarking,' if not allowed under the [Warsaw] Convention, is not available at all." (15) "[W]e would be hard put to conclude that the delegates at Warsaw meant to subject air carriers to the distinct, non-uniform liability rules of individual signatory nations." (16) Pursuant to Article 29 and Tseng, the Montreal Convention preempts all state claims that fall within its scope but do not satisfy the conditions for liability under the treaty.

   Not all cases related to international carriage are preempted. The Court in Tseng noted that the exclusivity of the Convention did not exceed its scope. As such, there is a symbiotic relationship between Article 29 and the fundamental liability provisions for delay, damage, loss or injury to passengers, baggage, or cargo. If the particular claim or claims do not fall within this scope, then it is arguable whether such claims are preempted. (17)

   1. Removal

      A number of recent decisions have addressed disputes raising the issue of the preemptive scope of the Convention in the context of removal and remand. Pursuant to 28 U.S.C. [section]1441(1), "any civil action of which the district courts have original jurisdiction founded on a claim or right arising out of the Constitution, treaties, or laws of the United States shall be removable without regard to the citizenship or residence of the parties." To support original or removal jurisdiction it must appear on the face of the complaint that resolution of the case depends upon a federal question. (18) That federal law may provide a defense does not justify removal. It is also well recognized that a defendant's right of removal cannot be denied due the artful pleading that avoids any reference to federal law. Where federal law completely preempts state law, federal jurisdiction will lie with all other preemptive assertions being defenses but not a basis for removal. Recent decisions are split on whether the Convention completely preempts state law for purposes of federal question jurisdiction. (19)

      In Serrano v. American Airlines, (20) plaintiffs brought various state law based claims asserting that airline ticket personnel refused to allow their infant to be seated in their laps, refused to provide alternative flight arrangements, and threatened to call the police. In addressing whether the matter should be remanded to state court, the Federal District Court for the Central District of California distinguished between jurisdictional preemption and ordinary preemption noting that there needed to be complete preemption for purposes of federal question jurisdiction. (21) Absent "complete preemption," ordinary federal preemption is a defense to a state law claim but does not provide grounds for removal because a defense based on federal law is not a claim arising under federal law. (22)

      Under the reasoning of Serrano, the wording of Article 29 does not "wholly displace all causes of action based in state law" and "recourse to local law is available when one's claim does 'satisfy the conditions of liability under the Convention.'" (23) "[R]emand is not forbidden even if plaintiffs' state law claims turn out to be inconsistent with the Convention, or if plaintiffs seek recoveries the Convention does not permit, the state court can disallow such efforts as being preempted." (24) The court determined that the state claims were not "completely preempted" for purposes of federal question jurisdiction and that the matter should be remanded to state court. In so doing, it noted that "the uniformity required by the Convention may be achieved through 'exclusive remedies and liabilities,' not through a requirement that all such cases be brought in federal court." (25)

      A smattering of other recent decisions (26) have agreed with the Serrano analysis, including the court in Cosgrove-Goodman v. UAL Corporation. (27) There, it was found that since Article 29 specifically contemplates that actions for damages may be "founded under this Convention or in contract or in tort or otherwise," the Montreal Convention does not apply solely to actions arising under the Convention as it would render meaningless the terms "or in contract or in tort or otherwise." (28)

      Other courts have held otherwise. In Schoeffler-Miller v...