United States District Court, D. Massachusetts
T. FORCHT DAGI, M.D., Plaintiff,
DELTA AIR LINES, INC. Defendant.
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE
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 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.
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.
international air carriage and transportation
conventionembodies 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).
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. 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.
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.
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.
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.
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.
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.
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)).
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 ...