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Dagi v. Delta Airlines, Inc.

United States District Court, D. Massachusetts

December 11, 2018

T. FORCHT DAGI, M.D., Plaintiff,



         At issue in the motion to dismiss before me is whether the two-year statute of limitations under the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45 (entered into force Nov. 4, 2003) (the “Montreal Convention”) forecloses a passenger's claim against an airline. The passenger's overnight flight took off from Boston on March 30, 2015, arriving in London on March 31, 2015, where the passenger says he was confined without justification[1] by Delta employees at Heathrow Airport. The passenger did not commence this action based on that confinement until March 28, 2018, nearly three years after the incident. If the Montreal Convention applies, this suit is time barred.

         Concluding that the Montreal Convention applies because the personal injury alleged by plaintiff did not extend beyond his disembarkation process and, consequently, that potentially applicable municipal law - which would provide a more generous limitation period of not less than three years - is preempted by the international law regime of the Montreal Convention, I will allow the motion to dismiss.


         An international air carriage and transportation convention[2]embodies an international agreement designed to ensure “protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution” while at the same time maintaining the goal of assuring “limited and predictable damage awards for airlines.” Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., Ltd., 522 F.3d 776, 781 (7th Cir. 2008) (quoting Ehrlich v. Am. Airlines, Inc., 360 F.3d 366 (2d Cir. 2004)). Such a convention provides the sole basis for recovery for bodily injury to passengers and “precludes a passenger from maintaining an action for personal injury damages under local law when [his] claim does not satisfy the conditions for liability under the Convention.” El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 176 (1999).

         Under Art. 17, ¶ 1 of the Montreal Convention, a “carrier is liable for damage sustained in case of . . . bodily injury of a passenger upon condition only that the accident which caused the . . . injury took place on board the aircraft or in the course of any of the operations of embarking and disembarking.” Under Art. 35, ¶ 1 of the Montreal Convention, “[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 . . . .” If the injury alleged is within the scope of Art. 17, ¶ 1, the Convention's statute of limitations (Art. 35, ¶ 1) will bar Dr. Dagi's claim. In that circumstance, there will be no need for further recourse to choice-of-law analysis regarding alternative statutes of limitation.[3] The precise factual focus is on whether Dr. Dagi's alleged injury on March 31, 2015 occurred “in the course of any of the operations of . . . disembarking.” Art. 17, ¶ 1.


         The facts alleged in the operative complaint can be summarized briefly; they are recited more fully when relevant to the analysis in Section III of this Memorandum.

         As the aircraft on which the plaintiff, T. Forcht Dagi, M.D., began descent to Heathrow Airport, the bag of a Delta airline flight attendant (the “Attendant”) was reported over the aircraft intercom as having disappeared. The Attendant loudly and falsely accused Dr. Dagi of stealing the bag. Dr. Dagi's onboard luggage was searched by the Attendant, but the missing bag was found elsewhere on the plane. The Attendant then “loudly accused” Dr. Dagi of “probably” having “thrown” the bag to the other location.

         Once the aircraft landed, the Attendant prevented Dr. Dagi from leaving the aircraft before the other passengers. Upon reaching the mobile section of the Jetway connecting the aircraft to the terminal, the Attendant directed a uniformed Delta ground employee to detain Dr. Dagi and turn him over to authorities. The Attendant ordered Dr. Dagi to surrender his passport to the Delta ground employee.

         The Delta ground employee then ordered Dr. Dagi to follow her to another location within the Heathrow Airport terminal until the police arrived. This involved a walk of ten to fifteen minutes to a location four hundred yards from the aircraft and the Jetway. The terminal through which Dr. Dagi was marched was not itself leased or under the control of Delta; it was also utilized by other airlines and their passengers. Dr. Dagi was subject to the sole direction of Delta employees during his relevant passage through the terminal. Following the initial walk through the terminal, Dr. Dagi was marched back to the vicinity of the aircraft where he was handed over to a Delta supervisor. Dr. Dagi, who was recovering from leg surgery, suffered significant pain while being forced to transport his carry-on luggage without assistance.

         After the Delta supervisor to whom Dr. Dagi was delivered talked with a British police officer by phone, the phone was turned over to Dr. Dagi who was interviewed by the police officer. Following this phone interview, the police officer told Dr. Dagi he was free to go, and he proceeded through immigration without further restraint by Delta employees.

         III. ANALYSIS

         For purposes of determining whether claims arise from “any of the operations of . . . disembarking, ” Art. 17, ¶1, under the Montreal Convention, the First Circuit has outlined a “three- pronged inquiry” involving evaluation of “(1) the passenger's activity at the time of injury, (2) his or her whereabouts when injured, and (3) the extent to which the carrier was exercising control at the moment of injury.” McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 317 (1st Cir. 1995). The McCarthy court stated that it did “not view the three factors-activity, location, and control-as separate legs of a stool, but, rather, as forming a single, unitary base. In the last analysis, the factors are inextricably intertwined.” Id. The First Circuit identified in particular the role of “control” as “an integral factor in evaluating both location and activity.” Id. (quoting Evangelinos v. Trans World Airlines, Inc., 550 F.2d 152, 155 (3d Cir. 1977) (en banc)).

         Review of a pair of illustrative cases involving embarkation will be helpful in getting a sense for how courts construe the terms “embarking” and, by implication, “disembarking.” Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir. 1975) involved injuries from terrorist acts of shooting and throwing grenades at passengers waiting in line to board the defendant's airliner. Id. at 32. The Second Circuit held that the passengers were “embarking” at the time of the attack because they had:

already surrendered their tickets, passed through passport control, and entered the area reserved exclusively for those about to depart on international flights. They were assembled at the departure gate, virtually ready to proceed to the aircraft. The passengers were not free agents roaming at will through the terminal. They were required to stand in line at the direction of TWA's ...

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