United States: Narayanan v. British Airways: Ninth Circuit Says The Montreal Convention’s Statute Of Limitations May Begin To Run Before Claim Accrues

Last Updated: March 27 2014
Article by Joanna Simon and William V. O'Connor

On March 19, 2014, the Ninth Circuit issued its ruling in Narayanan v. British Airways, No. 11-55870 (9th Cir. 2014), holding that the two-year statute of limitations set forth in Article 35(1) of the Montreal Convention begins to run when an aircraft arrives (or ought to have arrived) at its destination, even if the claim to which the statute is being applied has not yet accrued at that time. The ruling—which decided an issue of first impression in the Ninth Circuit—provides greater certainty for air carriers and effectuates the Montreal Convention's purpose of uniformity.

BACKGROUND

On December 26, 2008, Panansam Narayanan boarded a British Airways flight from Los Angeles, California, to Bangalore, India, with an intermediate stop in London, England. Mr. Narayanan, who suffered from terminal lung disease, was assured prior to boarding that should he need it, supplemental oxygen would be provided to him during the flight. During the flight, however, Narayanan was denied access to this oxygen. He received medical treatment in both London and Bangalore, and received further treatment upon his return to the United States in January 2009. Nonetheless, his health deteriorated, and on June 11, 2009, he passed away.

On March 7, 2011, Mr. Narayanan's widow and two adult children filed a claim against British Airways under Article 17(1) of the Montreal Convention, alleging that the airline's denial of supplemental oxygen hastened Mr. Narayanan's death. British Airways moved to dismiss, arguing that the Complaint was time-barred under the two-year limitations period established by Article 35(1) of the Convention. The District Court agreed, dismissing the complaint with prejudice, and the plaintiffs appealed.

THE MONTREAL CONVENTION

The Montreal Convention governs "all international carriage of persons . . . performed by aircraft" and provides the exclusive remedy for international passengers seeking damages against an airline. See Article 1(1). Article 17(1) provides that a carrier is "liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft[.]" As used in Article 17(1), an "accident" means a happening that is external to the passenger. Air France v. Saks, 470 U.S. 392, 405 (1985).

Article 29 of the Convention set forth limits on such claims, providing that "any action for damages . . . can only be brought subject to the conditions and such limits of liability as are set out in this Convention[.]" Article 35(1) sets forth one such limit, stating that the "right to damages shall be extinguished in an action is not brought within a period of two years, reckoned from the date of arrival at the destination[.]" Article 35(2) provides that the method for calculating the limitations period set forth in Article 35(1) "shall be determined by the law of the court seized of the case."

THE NINTH CIRCUIT'S DECISION

The court performed a straight-forward statute of limitations analysis, ultimately finding that the complaint was time-barred. The court started with the proposition that, because the complaint "arises under the convention," it was "subject to Article 35(1)." This meant that the plaintiffs' "right to damages for their wrongful death claim would be extinguished if their action was not brought within a period of two years, reckoned from the date of arrival at the destination." (Internal citations and quotations omitted.) Because the flight arrived on December 26, 2008, the plaintiffs had until December 26, 2010, to file their claim. But they waited until March 7, 2011 to file, which the court found to be "approximately three months too late."

Although the court stated that this analysis "seem[ed] straight-forward enough," it recognized a "factual wrinkle": that even though the accident giving rise to liability under the Convention occurred on December 26, 2008, Plaintiffs' wrongful death claim did not exist until six months later when Mr. Narayanan died. Thus, the question became "whether Article 35(1) applies irrespective of when a claim actually accrues, or whether local law governs the timeliness of any claims which were not in existence when the aircraft arrived at its destination."

After carefully considering the Montreal Convention's text, drafting history, and relevant case law, the court found the former: Article 35(1)'s limitation applied regardless of when the plaintiffs' claim actually accrued. With regards to the Convention's text, the court found that "Article 35(1) leaves no room for flexibility as to the commencement of the limitations period." Moreover, the court noted that 103 signatory nations agreed to the text and to the Convention's "cardinal purpose" of "achieving uniformity of rules governing claims arising from international air transportation." Permitting a workaround for the plaintiffs in this case would thus disrupt a primary initiative of the Convention: certainty for signatory nations.

The court rejected the plaintiffs' argument that Article 35(2) offered the plaintiffs a state law based alternative to the strictures of Article 35(1). Relying on the Second Circuit's decision in Fishman v. Delta Airlines, Inc., 132 F.3d 138, 144 (2d Cir. 1998), the court found that Article 35(2) merely "invoke[s] the power of the forum court to determine whether the plaintiff accomplished the filing within the limitation period, a question that may involve. . . the proper party or agent for receipt of process, and the means of service" – in other words, matters bearing on when an action has been "brought." The court was "not persuaded that Article 35(2) allows for an end-run around Article 35(1).

The entire panel, however, was not convinced. Judge Pregerson filed a dissent, noting his dismay with what he perceived to be an "unfair and unconscionable result." He urged that the Montreal Convention be "revisited and revised to protect families like the Narayanans."

* * *

Recognized as being among the top aviation litigation practices in the United States, we have more than three decades of complex aviation case experience. Many of our attorneys have military or civil aviation backgrounds, and know and understand the technical aspects of aviation litigation. This firsthand experience helps us devise creative and innovative approaches to extraordinarily complex matters, and deliver winning results. For more information regarding our aviation practice, click here.

To read our other aviation-related client alerts, please click here.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Joanna Simon
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions