Aviation
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...
