United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
JENNIFER C. BOAL United States Magistrate Judge
Anthony Nwokeji brought claims against American Airlines
("American") and Arik Air ("Arik") for
breach of contract and intentional and negligent infliction
of emotional distress arising from his round-trip flight
between Boston, Massachusetts and Lagos, Nigeria. First, he
claims that defendants breached their contract with him when
they caused his luggage to be delayed 19 days and damaged
when it finally arrived in Lagos. Second, he alleges that
defendants breached the contract again, and intentionally or
negligently inflicted emotional distress, when they delayed
his return flight to Boston, requiring him to wait in
"unbearable" and unsanitary conditions at the Lagos
airport and to miss his connection in New York.
court referred the case to Magistrate Judge Jennifer Boal for
pretrial purposes and a Report and Recommendation on
dispositive motions. On January 30, 2017, the defendants
filed motions for summary judgment. In addition, American
moved to strike paragraphs 14, 19, and 21 of Nwokeji's
affidavit and statements of fact that rely on those
paragraphs. American argued that the statements clearly
contradicted Nwokeji's deposition testimony and should be
disregarded for purposes of summary judgment. See
Colantuoni v. Alfred Galcagni & Sons, Inc., 44 F.3d
1, 4-5 (1st Cir. 1994).
hearing, the Magistrate Judge issued a report recommending
that the court allow the motions for summary judgment. First,
she concluded that the motion to strike should be allowed in
part and denied in part. In particular, she found that
Nwokeji's deposition testimony contradicted statements in
his affidavit that he communicated with American more than
once regarding his delayed bags after he arrived in Nigeria.
She found, however, that the other challenged statements in
Nwokeji's affidavit were not clearly contradicted in his
deposition and, therefore, considered them in deciding the
motions for summary judgment.
she recommended that the motions for summary judgment be
allowed. She found that to the extent that Nwokeji's
claims rely on state law, they are preempted by the
Convention for Unification of Certain Rules Relating to
International Carriage by Air, done at Montreal on May 28,
1999, ICAO Doc. 9740, reprinted in S. Treaty Doc. No. 106-45,
1999 WL 33292734 (2000) (Treaty) (the "Montreal
Convention") because they allege damage to baggage and
unreasonable delays during "international carriage,
" as defined in Article 1 of the treaty. Such claims are
within the scope of Articles 17 and 19 of the treaty and are,
therefore, preempted pursuant to Article 29, which expressly
"preempts the remedies of a signatory's domestic
law, whether or not the application of the Convention will
result in recovery in a particular case." R&R at
14-20 (quoting Gustafson v. Am. Airlines, Inc., 658
F.Supp.2d 276, 280 (D. Mass. 2009)).
Magistrate Judge found that even if Nwokeji's claims were
properly brought under the Montreal Convention, no material
facts would be in genuine dispute. First, Nwokeji did not
notify American of any damage to his baggage within seven
days of the date he received it and, therefore, Article 31 of
the Montreal Convention bars count 1. Second, Arik took all
reasonable measures to minimize the delay of Nwokeji's
flight from Lagos to Boston and avoid any resulting harm to
Nwokeji-including by providing him meals and hotel
accommodations during the delay and offering him
rescheduling, cancellation with a full refund, or a 50
percent discount on future travel. Therefore, no reasonable
jury could find for Nwokeji on count 2. Third, Nwokeji did
not suffer physical injury. Therefore, he cannot, under the
Montreal Convention, recover the emotional distress damages
sought in counts 3 and 4.
the Magistrate Judge concluded that there are no genuine
disputes of material fact that would entitle a reasonable
jury to find the defendants liable. See Fed.R.Civ.P.
time period for objections to the Report and Recommendation
has expired. No objections have been filed. Therefore, the
parties are not entitled to review of the Report and
Recommendation. Borden v. Sec'y of Health & Human
Servs., 836 F.2d 4, 6 (1st Cir. 1987); Thomas v.
Arn, 474 U.S. 140, 149-50 (1985). In any event, the
court has reviewed the Magistrate Judge's reasoning and
finds it to be thorough, thoughtful, and persuasive.
Therefore, the Report and Recommendation is being adopted.
of the foregoing, it is hereby ORDERED that:
1. The Magistrate Judge's Report and Recommendation
(Docket No. 70) is ADOPTED and INCORPORATED pursuant to 28
2. American's Motion to Strike (Docket No. 59) is ALLOWED
in part and DENIED in part as described Report and
Recommendation at 2-4.
3. For the reasons stated in the Report and Recommendation,
the defendants' Motions for Summary Judgment (Docket Nos.
42 & 43) are ALLOWED. Judgment shall enter for
AND RECOMMENDATION ON DEFENDANTS' MOTIONS FOR SUMMARY
JUDGMENT AND AMERICAN'S MOTION TO STRIKE [Docket
Nos. 42, 43, 59]
Anthony Nwokeji asserts claims for breach of contract as well
as intentional and negligent infliction of emotional distress
against defendants Arik Air ("Arik") and American
Airlines ("American") as a result of a delayed and damaged bag
and a delayed flight. The defendants have moved for summary
judgment. Docket Nos. 42, 43. American has also moved to
strike certain portions of the summary judgment record.
Docket No. 59. For the following reasons, the Court
that the District Judge assigned to this case grant the
motions for summary judgment and grant in part and deny in
part American's motion to strike.
January 30, 2017, Arik and American filed motions for summary
judgment. Docket Nos. 42, 43. Nwokeji opposed both motions
for summary judgment. Docket Nos. 49, 50, 56, 57. The
defendants each filed a reply brief on March 7, 2017. Docket
Nos. 51, 52.
initially did not respond to the defendants' statements
of facts. This Court ordered him to do so, Docket No. 55, and
Nwokeji in turn filed both a response to each defendant's
statement of facts as well as his own statement of facts.
Docket Nos. 56-1, 56-2, 56-3. Both defendants responded to
Nwokeji's statement of facts. Docket Nos. 58, 69. In
addition, American filed a motion to strike portions of
Nwokeji's affidavit, statement of facts and responses to
American's own statement of facts. Docket No. 59. Nwokeji
did not oppose the motion to strike. The Court heard oral
argument on July 27, 2017.
Scope Of The Record
order to determine which materials are properly before the
Court for purposes of deciding the summary judgment motions,
the Court must first decide American's motion to strike.
For the following reasons, this Court grants in part and
denies in part the motion.
moves to strike paragraphs 14, 19 and 21 of Nwokeji's
affidavit (Docket No. 57-1) as contradictory to his
deposition testimony. Docket No. 59 at 6-8. American also
moves to strike Nwokeji's statements of fact that rely on
these paragraphs in the affidavit. Id. at 3-4.
"When an interested witness has given clear answers to
unambiguous questions, he cannot create a conflict and resist
summary judgment with an affidavit that is clearly
contradictory, but does not give a satisfactory explanation
of why the testimony is changed." Colantuoni v. Alfred
Oalcagni & Sons. Inc., 44 F.3d 1, 4-5 (1st Cir.
1994) (citations omitted). "The purpose of this sham
affidavit rule is to protect the procedural integrity of
summary judgment." Mahan v. Bos. Water & Sewer
Comm'n, 179 F.R.D. 49, 53 (D. Mass. 1998). "If
a party simply could offer a contradictory, post-deposition
affidavit to defeat summary judgment without providing a
'satisfactory explanation' for the contradiction, the
purpose of summary judgment would be defeated."
Id. (citing Perma Research & Dev. Co. v.
Singer Co.. 410 F.2d 572, 578 (2d Cir.1969)).
moving to strike an affidavit must specify the objectionable
portions of the affidavit and the specific grounds for
objection. Facev v. Dickhaut 91 F.Supp.3d 12, 19 (D.
Mass. 2014). The Court will disregard only those portions of
the affidavit that are inadmissible and consider the rest of
Court has reviewed the subject documents and agrees that
paragraph 14 of Nwokeji's affidavit is contradictory to
his deposition testimony. In paragraph 14, Nwokeji states
that "[o]n each trip to the Airport, Defendants
continued to tell me to come the subsequent following
days." Docket No. 57-1 at 2. At his deposition, Nwokeji
testified that upon arriving in Lagos, Nigeria, he called
American Airlines. Docket No. 47-2 at 21-22. Otherwise, his
only communications regarding the delayed bag were with
individuals not employed by the defendants. Id.
Rather, they worked for British Airways ("BA") or
for Lagos' airport warehouse and were unaffiliated with
an airline. Id. His deposition testimony therefore
contradicts the affidavit's statement that Nwokeji spoke
to American or Arik employees every day. Accordingly, the
Court will not consider paragraph 14 in deciding the summary
judgment motions. Because paragraph 11 of Nwokeji's
statement of facts, Docket No. 56-3 at 2, relies on paragraph
14 of his affidavit, Docket No. 57-1 at 2, American moves to
strike paragraph 11. For the above stated reasons, the Court
will not consider that paragraph as well.
19 and 21 of the affidavit, Docket No. 57-1 at 2, on the
contrary, do not clearly contradict Nwokeji's deposition
testimony and/or interrogatory responses. In paragraph 19,
Nwokeji states that on July 18, 2014, he "decided to go
back to Lagos in search of [his] luggage." Docket No.
57-1 at 2. At his deposition, Nwokeji testified that he
returned to Lagos after receiving a text message from BA that
his luggage had arrived. Docket No. 47-2 at 25. The
difference between returning to Lagos to search for his
luggage and returning in response to a text message that the
luggage was found is not so contradictory as to mandate its
exclusion from the record. Similarly, in paragraph 21,
Nwokeji states that "most" of the items in his
luggage were missing. Docket No. 57-1 at 2. Despite being
vague, such statements do not necessarily contradict
testimony that the bag weighed fifty pounds, Docket No. 47-2
at 16, or an interrogatory response delineating which items
were allegedly missing. Docket No. 59-5 at 2-3. Accordingly,
the Court will consider paragraphs 19 and 21 of Nwokeji's
affidavit. For these reasons, the Court will also consider
paragraph 16 of Nwokeji's statement of facts, Docket No.
56-3 at 3, that is based on paragraph 19 of the affidavit.
addition, American moves to strike paragraph 8 of
Nwokeji's statement of facts which provides: "But he
was asked to come back the next [sic] Arik flight to Lagos,
for his luggage." Docket No. 56-3 at 2. In support of
paragraph 8, Nwokeji cites to his deposition testimony that
describes conversations with BA regarding the location of his
missing bag. Docket No. 47-2 at 21. The Court agrees that
paragraph 8 is not supported by the cited portions of the
record in violation of Local Rule 56.1. It should therefore
not be considered in deciding the motions for summary
extent Nwokeji's own statements and responses to
American's statement of facts do not otherwise comply
with Local Rule 56.1, the Court addresses such arguments in
connection with the recitation of the facts below. B.
22, 2014, Nwokeji purchased a single round trip ticket for
flights on American Airlines and Arik Air from Adam Travel,
with the following scheduled travel itinerary:
June 26, 2014
Boston (Logan Airport) to New York (JFK)
American flight AA 1165
June 26, 2014
New York (JFK) to Lagos (Murtala Muhammad Airport)
Arik flight W3 108
August 3, 2014
Lagos to New York
Arik flight W3 107
August 4, 2014
New York to Boston
American flight AA 84
Departure Lee And Delayed Baggage
26, 2014, Nwokeji checked two bags at the American Airlines
counter at Boston's Logan Airport for flight AA
flight left Boston at 6:20 a.m. and arrived at New York's
JFK Airport at 7:30 a.m. American does not fly to
American also is not party to an interline agreement with
Arik or any other agreement regarding the transfer or
carriage of baggage from one carrier to
another. As a
result, at JFK, Nwokeji was required to claim the bags he
checked on flight AA 1165 and then re-check those bags with
Arik prior to boarding Arik flight W3 108.
arrival in New York, Nwokeji went to retrieve his luggage at
the baggage carousel, but could only find one of his two
checked bags. As a result, Nwokeji spoke with Monica,
a person working for or on behalf of American.Nwokeji did not speak
with any Arik employee about his missing bag. Monica informed Nwokeji
that his second bag was found in Boston.She provided Nwokeji
with her contact information and advised him that he should
continue on to Lagos.
gave Monica his contact information in Lagos and agreed to
pick up his bag there. He did not fill out any forms, list what
was in the missing bag or inform American that his ultimate
destination was in eastern Nigeria, which is a significant
distance from Lagos.
made arrangements with B A (with whom American has a baggage
to forward Nwokeji's bag from New York to
baggage transfer from American to BA, which was marked
urgent, was completed on June 27, 2014.
checked only one bag with Arik for flight W3 108 and that bag
arrived with him at Murtala Muhammed International Airport
("MMIA") in Lagos. The missing bag did not.Nwokeji first asked an
individual whom Nwokeji thought to be affiliated with or an
employee of Arik about the status of his missing
person informed him that the bag did not arrive with flight
W3 108, but Nwokeji should check back later when the next
Arik flight arrived from New York. After speaking with this
individual, Nwokeji contacted Monica by
telephone.She informed him that American forwarded
his bag to Lagos via a BA flight and provided Nwokeji with
the flight number, scheduled time of arrival and baggage
claim number. After this conversation with Monica, for
the rest of his stay in Nigeria, the only air carrier Nwokeji
spoke with about his delayed bag was BA.
waited at the Lagos airport for his bag to arrive, but when
the BA flight landed, his bag was not on it. Nwokeji gave BA his
name and contact number. BA informed him that they would
"log in" the arrival of his bag in
Instead of travelling to eastern Nigeria, he made the
decision to wait for his bag at a hotel in Lagos and take a
taxi daily from his hotel to the airport to check for
spending 14 days at the hotel, Nwokeji left Lagos for eastern
three days later, Nwokeji received a text message from BA
that his bag had arrived in Lagos, and so he traveled back to
Lagos to claim the bag. He collected his bag from a warehouse at
MMIA on July 19, 2014. Nwokeji alleges that it was damaged and
items were missing. He informed individuals working at the
warehouse of the missing items. These individuals were unassociated
with any air carrier. They told Nwokeji that he would have to
consult the airline. After collecting his bag from the
warehouse, Nwokeji did not raise any issues regarding the bag
with any air carrier until he returned to New York on August
5, 2014, where he spoke in person with an American ticket
Other than the instant lawsuit, American maintains that
Nwokeji never filed a written missing items report or claim
with American. Nwokeji maintains that he filled out a
lost baggage log with BA.
has no access to American's or BA's records and so
could not check on the status of Nwokeji's missing
Nwokeji never submitted a notice of claim to
fact, Nwokeji's missing bag was never in the possession
of nor handled by Arik.
Return Leg And Delayed Flight
August 3, 2014, Nwokeji arrived at MMIA around 8:00 p.m. for
Arik flight W3 107 which was scheduled to depart at 11:20
went to an airport security checkpoint at approximately 10:00
p.m. when he heard an announcement instructing flight W3 107
passengers to head to the departure gate. He reached the
departure gate waiting area at approximately 10:30
Flight W3 107 did not board as scheduled and Nwokeji claims
that he remained in the waiting area from approximately 10:30
p.m. on August 3, 2014 to 10:00 a.m. on August 4,
Nwokeji described the waiting area as a "glass enclosure
with [an] opening to go in the plane" with a "few
chairs, " no stores, restaurants or windows and no air
conditioning.Nwokeji claims that the restroom on the
lower level had urine and feces on the floor, no toilet paper
and no running water. Nwokeji claims also that the conditions
led to verbal and physical fighting between some passengers
and Arik staff. Nwokeji did not personally discuss the
conditions of the waiting area with airport personnel because
he claims "others were already doing
that." He did not sustain bodily injury as a
result of the experience. He also did not see a doctor, therapist
or any other medical professional or take medication for his
alleged emotional distress.
W3 107 was delayed due to an unforeseen fuel shortage with
respect to Jet A-l aviation fuel in Lagos. During the delay, Arik
worked towards obtaining the fuel necessary for the
approximately 3:00 a.m. or 4:00 a.m., an individual who
identified himself as the night manager or supervisor arrived
in the waiting area and informed passengers that the flight
was not at the gate and was delayed due to fuel
Nevertheless, Nwokeji states that he remained in the waiting
area overnight out of concern that he would miss his
morning of August 4, 2014, Arik provided Nwokeji and the
other flight W3 107 passengers with hotel accommodations and
food near MMIA. While at the hotel, Nwokeji ate lunch,
took a shower and watched television. Later that day, Nwokeji
returned to the airport where he spoke with Arik about his
connecting American flight from New York to
Boston.Arik told Nwokeji that he would need to
"deal with American."
W3 107 departed Lagos at 11:50 p.m. on August 4,
2014. As a
result of the delay, Arik provided passengers with a letter
that offered: (1) a 50% discount on their next travel with
Arik, valid until August 2015; (2) no date change fees for
those opting to reschedule their carriage on flight W3 107;
and (3) a full refund for those wishing to cancel their
reservation altogether. Nwokeji rejected Arik's offers
because he thought they were insulting.
landing at New York's JFK airport, Nwokeji missed his
American flight back to Boston. His ticket was only valid for the
specified flight and date of travel. Neither Nwokeji nor his travel
agent notified American prior to the ticket's expiration
that Nwokeji would not be able to make the flight due to
delays getting out of Nigeria. He purchased a new $270 ticket for a
later flight from New York to Boston.
STANDARD OF REVIEW
judgment is appropriate "if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). "A dispute is 'genuine' if
the evidence about the fact is such that a reasonable jury
could resolve the point in the favor of the non-moving
party." Sanchez v. Alvarado, 101 F.3d 223, 227
(1st Cir. 1996) (quotations and citations omitted). A
material fact is one which has "the potential to affect
the outcome of the suit under the applicable law."
Id. (quotations and citations omitted).
moving party bears the initial burden of establishing that
there is no genuine issue of material fact. See Celotex
Corp. v. Catrett. 477 U.S. 317, 323 (1986). If that
burden is met, the opposing party can avoid summary judgment
only by providing properly supported evidence of disputed
material facts that would require trial. See Id. at
324. "[T]he non-moving party 'may not rest upon mere
allegation or denials of his pleading, '" but must
set forth specific facts showing that there is a genuine
issue for trial. LeBlanc v. Great Am. Ins. Co., 6
F.3d 836, 841 (1st Cir. 1993) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).
court must view the record in the light most favorable to the
non-moving party and indulge all reasonable inferences in
that party's favor. See O'Connor v. Steeves, 994 F.2d
905, 907 (1st Cir. 1993). However, "[a]s to any
essential factual element of its claim on which the nonmovant
would bear the burden of proof at trial, its failure to come
forward with sufficient evidence to generate a trialworthy
issue warrants summary judgment to the moving party."
McRorv v. Spjgel fin re Spigel), 260 F.3d 27, 31
(1st Cir. 2001) (citation omitted). "If, after viewing
the record in the non-moving party's favor, the Court
determines that no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law,
summary judgment is appropriate." Walsh v. Town of
Lakeville, 431 F.Supp.2d 134, 143 (D. Mass. 2006).
brings state law claims against American and Arik for breach
of contract as a result of delayed and damaged baggage (Count
1); breach of contract arising from the return leg of his
trip (Count 2); and intentional and negligent infliction of
emotional distress as a result of the unsanitary MMIA waiting
area (Counts 3 and 4). Amended Compl. ¶¶ 33-59.
Although Nwokeji asserts that the instant action is brought
pursuant to the Warsaw Convention as amended by the 1999 Montreal
Convention,  Id. at ¶ 28, he brings no
claims pursuant to either Convention.
their summary judgment motions, the defendants contend that
each count is preempted by an international treaty, namely,
the Montreal Convention. Docket Nos. 44, 46, 51, 52.
Alternatively, Arik argues that even if Nwokeji had properly
brought his claims under the relevant provisions of the
Montreal Convention rather than under state law, they would
still fail. Docket Nos. 46, 52. This Court agrees with both
arguments for granting summary judgment.
The Montreal Convention Affords The Exclusive Remedy
Montreal Convention entered into force on November 4, 2003
and succeeded the Warsaw Convention. The purpose of the Montreal
Convention is as follows:
The Montreal Convention "was the product of a United
Nations effort to reform the Warsaw Convention 'so as to
harmonize the hodgepodge of supplementary amendments and
intercarrier agreements of which the Warsaw Convention system
of liability consists.' " Sompo Japan Insurance.
Inc. v. Nippon Cargo Airlines Co., Ltd.. 522
F.3d 776, 780 (7th Cir.2008) (quoting Ehrlich v.
American Airlines, Inc., 360 F.3d 366, 371 n. 4
(2nd Cir.2004)). The Montreal Convention, which "unifies
and replaces" the Warsaw Convention, attempts to
"balance the interests of air carriers and potential
plaintiffs." Id. at 789. It achieves this
purpose "by limiting air carriers' potential
liability to predictable, non-catastrophic damages and also
by preserving a plaintiffs right to recover its losses up to
a certain amount." Id. at 776 & 780. The
preamble expressly recognizes " 'the importance of
ensuring protection of the interests of consumers in
international carriage by air and the need for equitable
compensation based on the principle of restitution.'
" Id. at 781 (quoting preamble).
Goodwin v. British Airwavs PLC, No. 09-10463-MBB,
2011 WL 3475420, at *3 (D. Mass. Aug. 8, 2011).
the Montreal Convention is undeniably a new treaty, a number
of the provisions of the Montreal Convention are taken
directly from the Warsaw Convention and the many amendments
thereto. Gustafson v. Am. Airlines. Inc., 658
F.Supp.2d 276, 282 (D. Mass. 2009). In particular, courts
have found the provisions of Articles 19, 17 and 1(3) of the
Montreal Convention to be substantively similar to the
corresponding articles in the Warsaw Convention. See,
e.g., Shabotinskv v. Deutsche Lufthansa AG, No. 16 C
4865, 2017 WL 1134475, at *3 n.3 (N.D. 111. Mar. 27, 2017)
(Article 19); Jacob v. Korean Air Lines Co., No.
12-62384-CIV, 2014 WL 243150, at *7 (S.D. Fla. Jan. 13, 2014)
(Article 17); Kruger v. United Air Lines. Inc., No.
C 06-04907 MHP, 2007 WL 3232443, at *4 (N.D. Cal. Nov. 1,
2007) (Article 1(3)). In addition, Article 29 of the Montreal
Convention and Article 24, Section 1 of the Warsaw Convention
utilize substantively similar language and have
"identical preemptive effect." Jacob, 2014 WL
243150, at *7 (quoting Ugaz v. Am. Airlines. Inc.,
576 F.Supp.2d 1354, 1360 (S.D. Fla. 2008)). Moreover, courts
interpreting Article 31 of the Montreal Convention have
relied on cases discussing Article 26 of the Warsaw
Convention because "there is no meaningful difference
between" the two. UPS Supply Chain Sols.. Inc. v.
Am. Airlines. Inc., 646 F.Supp.2d 1011, 1014 n.l (N.D.
III. 2009) (citing Meteor AG v. Fed. Express Corp.,
No. 08 Civ. 3773, 2009 WL 222329, at *3 (S.D.N.Y. Jan. 30,
2009) (internal quotation marks omitted)). Therefore, case
law interpreting provisions of the Warsaw Convention applies
to cases interpreting "substantively similar"
provisions of the Montreal Convention. Gustafson.
658 F.Supp.2d at 282 (collecting cases).
Montreal Convention governs international air carriage of
passengers, baggage and cargo. F.ke v. Deutsche
Lufthansa, No. 13-11099-GAO, 2013 WL 12201891, at *7 (D.
Mass. Oct. 2, 2013). It defines "international
any carriage in which, according to the agreement between the
parties, the place of departure and the place of destination,
whether or not there be a break in the carriage or a
transshipment, are situated either within the territories of
two State Parties, or within the territory of a single State
Party if there is an agreed stopping place within the
territory of another State, even if that State is not a State
Party. Carriage between two points within the territory of a
single State Party without an agreed stopping place within
the territory of another State is not international carriage
for purposes of this Convention.
Montreal Convention, art. 1(2). The United States is a
"State Party" under the Montreal Convention.
Gustafson, 658 F.Supp.2d at 286.
29 of the Montreal Convention provides that "any action
for damages [in the carriage of passengers, baggage and
cargo], 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." Montreal Convention, art. 29. Thus,
the determinative issue is whether the Montreal Convention
applies in a given situation. However, the Montreal
Convention preempts state law causes of action only "to
the extent they fall within its substantive scope."
Bridgeman v. United Cont'l Holdings, Inc., 552
Fed.Appx. 294, 296 (5th Cir. 2013) (citing El Al Isr.
Airlines Ltd. v. Tseng, 525 U.S. 155, 172 (1999)). If
applicable, it "preempts the remedies of a
signatory's domestic law, whether or not the application
of the Convention will result in recovery in a particular
case." Gustafson, 658 F.Supp.2d at 280
(collecting cases). A passenger whose claim implicates, but
is not compensable under the Montreal Convention, has no
recourse to an alternate remedy. See Tseng, 525 U.S.
applicability of the Montreal Convention is a "question
of law to be decided by the court on the basis of the
pertinent facts of each case." See Eke, 2013 WL
12201891, at *11. "In determining whether a claim is
preempted because it falls within what the Supreme Court has
termed the 'substantive scope' of the treaty,
[courts] are directed to look to the Convention's
liability provisions." King ...