Some attorneys to this day commence action relying on CPLR § 213 six year statute of limitations for breach of contracts (or torts) in the airline transportation industry. However, under Supremacy Clause, commencement of action six year period under CPLR § 213 is limited to two years if Montreal Convention is applicable. U.S. Const. art. VI, cl. 2; Best v. BWIA West Indies Airways Ltd., 581 F. Supp. 2d 359 (E.D.N.Y. 2008). If Montreal Convention applies, and plaintiff waited more than two years to commence action, defendant can move for dismissal.
Pre-answer dismissal mechanism in New York State courts is CPLR 3211. However, some courts do not consider invocation of two-year period as a CPLR 3211(a)(5) statute of limitations, but rather statute of repose likely falling under CPLR 3211(a)(7) (“failure to state a cause of action). See Narayanan v. British Airways, 747 F. 3d 1125, 1131 (9th Cir. 2014) (The drafting history of the Warsaw Convention also reveals that the drafters intended Article 29 to operate as a statute of repose, which, “like a jurisdictional prerequisite, extinguishes a cause of action after a fixed period of time … regardless of when the cause of action accrued.“); see also Mateo v. JetBlue Airways Corp., 847 F. Supp. 2d 383 (E.D.N.Y. 2012) (This limitations period “constitutes a condition precedent — an absolute bar — to bringing suit.”).
Montreal Convention is a Binding Federal Law
Montreal Convention Art. 35 ¶1 states that “[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, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.”
Montreal Convention was signed by the United States in 1999 to replace Warsaw Convention. Worldwide Air Transport Conference 6th Meeting Working Paper, International Civil Aviation Organization (March 14, 2013); see also Senate Executive Report 108-84 (July 29, 2003) (stating that Montreal Convention “is intended to replace the current patchwork set of liability regimes in this area, which include the 1929 Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air”). Montreal Convention text can be accessed through convention’s official depository agency International Civil Aviation Organization (ICAO). The United States Senate ratified the convention on July 31, 2003. See Ratification of the 1999 Montreal Convention, U.S. Department of State Press Statement (Sept. 5, 2003). The treaty became self-executing on November 4, 2003. Id. Montreal Convention Art. 1 makes the convention applicable “to all international carriage of *** cargo performed by aircraft for reward.” Further, Montreal Convention Art. 29 states that “[i]n the carriage of *** 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 ***.”
When submitting Montreal Convention to a court, it is probably a good idea to make reference to U.S. Department of State Treaties in Force publication.
Montreal Convention Applies to Agents of the Carriers (e.g. Freight Forwarders, 3d Party Logistics Providers that can issue house bills of lading for the air carrier)
Montreal Convention Art. 30 states “[i]f an action is brought against a servant or agent of the carrier arising out of damage to which the Convention relates, such servant or agent, if they prove that they acted within the scope of their employment, shall be entitled to avail themselves of the conditions and limits of liability which the carrier itself is entitled to invoke under this Convention.”
While Montreal Convention supersedes Warsaw Convention, negotiators of the convention intended to preserve large body of judicial precedent that has been established in the United States “[i]n nearly seventy years that the Warsaw Convention has been in effect.” Senate Executive Report 108-8, Continuity of Applicable Warsaw Precedents (July 29, 2003). Accordingly, judicial precedent with respect to Warsaw Convention has the same legal effect on much newer Montreal Convention. Courts of competent jurisdiction affirmed the availability of the Convention to “agents” whose relationship with the airline was as follows:
- Suit by a passenger against a pre-board security screening agency employed by an airline is governed by the Convention’s liability limit. Baker v. Lansdell Protective Agency, Inc., 590 F.Supp. 165 (S.D.N.Y. 1984);
- Suit by a passenger against a ground baggage handler employed by an airline is governed by the Convention’s liability limit. Julius Young Jewelry Manufacturing Co., Inc. v. Delta Air Lines, 67 A.D.2d 148 (1st Dept. 1979).
Two years is relatively short time, which can fly quickly in light of procedural complaint lodgings with air carrier or its agent in the pre-litigation stage. Awareness of Montreal Convention can help those in the airline industry, as well as, those that utilize airline services to form a procedural road map for resolving disputes.
