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Nwokeji v. Arik Air

United States District Court, D. Massachusetts

September 20, 2017

ARIK AIR, AMERICAN AIRLINES, Defendants. Date Carriage Flight No.

          WOLF, D.J.


          JENNIFER C. BOAL United States Magistrate Judge

         Plaintiff 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.

         The 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).

         After a 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.

         Second, 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)).

         The 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.

         Accordingly, 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. 56(a).

         The 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.

         In view 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 U.S.C. §636.
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 defendants.


         August 17, 2017

         BOAL, MJ.

         Plaintiff 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")[1] 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 recommends[2] 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.


         On 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.

         Nwokeji 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.


         A. Scope Of The Record

         In 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.

         American 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)).

         A party 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 it. Id.

         This 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.

         Paragraphs 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.

         In 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 judgment.

         To the 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. Facts[3]

         On May 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:[4]

Flight No.
June 26, 2014
Boston (Logan Airport) to New York (JFK)[5]
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

         1. Departure Lee And Delayed Baggage

         On June 26, 2014, Nwokeji checked two bags at the American Airlines counter at Boston's Logan Airport for flight AA 1165.[6] That flight left Boston at 6:20 a.m. and arrived at New York's JFK Airport at 7:30 a.m.[7] American does not fly to Nigeria.[8] 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.[9] 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.[10]

         Upon arrival in New York, Nwokeji went to retrieve his luggage at the baggage carousel, but could only find one of his two checked bags.[11] As a result, Nwokeji spoke with Monica, a person working for or on behalf of American.[12]Nwokeji did not speak with any Arik employee about his missing bag.[13] Monica informed Nwokeji that his second bag was found in Boston.[14]She provided Nwokeji with her contact information and advised him that he should continue on to Lagos.[15]

         Nwokeji gave Monica his contact information in Lagos and agreed to pick up his bag there.[16] 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.[17]

         American made arrangements with B A (with whom American has a baggage agreement)[18] to forward Nwokeji's bag from New York to Lagos.[19] The baggage transfer from American to BA, which was marked urgent, was completed on June 27, 2014.[20]

         Nwokeji checked only one bag with Arik for flight W3 108 and that bag arrived with him at Murtala Muhammed International Airport ("MMIA") in Lagos.[21] The missing bag did not.[22]Nwokeji first asked an individual whom Nwokeji thought to be affiliated with or an employee of Arik about the status of his missing bag.[23] That 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.[24] After speaking with this individual, Nwokeji contacted Monica by telephone.[25]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.[26] 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.[27]

         Nwokeji waited at the Lagos airport for his bag to arrive, but when the BA flight landed, his bag was not on it.[28] Nwokeji gave BA his name and contact number.[29] BA informed him that they would "log in" the arrival of his bag in Lagos.[30] 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 it.[31] After spending 14 days at the hotel, Nwokeji left Lagos for eastern Nigeria.[32]

         Two to 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.[33] He collected his bag from a warehouse at MMIA on July 19, 2014.[34] Nwokeji alleges that it was damaged and items were missing.[35] He informed individuals working at the warehouse of the missing items.[36] These individuals were unassociated with any air carrier.[37] They told Nwokeji that he would have to consult the airline.[38] 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 agent.[39] Other than the instant lawsuit, American maintains that Nwokeji never filed a written missing items report or claim with American.[40] Nwokeji maintains that he filled out a lost baggage log with BA.[41]

         Arik has no access to American's or BA's records and so could not check on the status of Nwokeji's missing bag.[42] Nwokeji never submitted a notice of claim to Arik.[43] In fact, Nwokeji's missing bag was never in the possession of nor handled by Arik.[44]

         2. Return Leg And Delayed Flight

         On 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 p.m.[45] He 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.[46] He reached the departure gate waiting area at approximately 10:30 p.m.[47] 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, 2014.[48] 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.[49]Nwokeji claims that the restroom on the lower level had urine and feces on the floor, no toilet paper and no running water.[50] Nwokeji claims also that the conditions led to verbal and physical fighting between some passengers and Arik staff.[51] Nwokeji did not personally discuss the conditions of the waiting area with airport personnel because he claims "others were already doing that."[52] He did not sustain bodily injury as a result of the experience.[53] He also did not see a doctor, therapist or any other medical professional or take medication for his alleged emotional distress.[54]

         Flight W3 107 was delayed due to an unforeseen fuel shortage with respect to Jet A-l aviation fuel in Lagos.[55] During the delay, Arik worked towards obtaining the fuel necessary for the flight.[56] At 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 issues.[57] Nevertheless, Nwokeji states that he remained in the waiting area overnight out of concern that he would miss his flight.[58]

         On the morning of August 4, 2014, Arik provided Nwokeji and the other flight W3 107 passengers with hotel accommodations and food near MMIA.[59] While at the hotel, Nwokeji ate lunch, took a shower and watched television.[60] Later that day, Nwokeji returned to the airport where he spoke with Arik about his connecting American flight from New York to Boston.[61]Arik told Nwokeji that he would need to "deal with American."[62]

         Flight W3 107 departed Lagos at 11:50 p.m. on August 4, 2014.[63] 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.[64] Nwokeji rejected Arik's offers because he thought they were insulting.[65]

         After landing at New York's JFK airport, Nwokeji missed his American flight back to Boston.[66] His ticket was only valid for the specified flight and date of travel.[67] 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.[68] He purchased a new $270 ticket for a later flight from New York to Boston.[69]


         Summary 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).

         The 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)).

         The 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).


         Nwokeji 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[70] as amended by the 1999 Montreal Convention, [71] Id. at ¶ 28, he brings no claims pursuant to either Convention.

         In 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.

         A. The Montreal Convention Affords The Exclusive Remedy

         1. Background

         The Montreal Convention entered into force on November 4, 2003 and succeeded the Warsaw Convention.[72] 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).

         Although 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).

         The Montreal Convention governs international air carriage of passengers, baggage and cargo. v. Deutsche Lufthansa, No. 13-11099-GAO, 2013 WL 12201891, at *7 (D. Mass. Oct. 2, 2013). It defines "international carriage" as:

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.

         Article 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. at 171-72.

         The 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 ...

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