The liability of aircraft carriers is governed by the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45 (2000) (the “Montreal Convention”), a multilateral treaty to which the United States is a signatory. The Montreal Convention superseded the Warsaw Convention of 1934 and some of the provisions are essentially the same in both conventions.
Under the Montreal Convention, a carrier is strictly liable when a passenger suffers an injury as a result of an “accident” that took place on board of the aircraft or in the course of any operations of embarking or disembarking. To be considered an “accident,” the injury must have been caused by an unexpected or unusual event that is external to the passenger (for example, a terrorist attack or a drunken passenger falling and injuring fellow passengers). A carrier’s strict liability is not triggered when the injury is the result of a passenger’s internal reaction to the usual operation of an aircraft (loss of hearing caused by the normal pressurization of the aircraft cabin is not an “accident”).
The Montreal Convention has a two-year statute of limitations that starts running from the date of arrival of destination, the date the aircraft ought to have arrived or the date on which it stopped. In McCarthy v. Northwest Airlines, Inc., a 1995 decision, the First Circuit adopted a tripartite test to determine whether a passenger’s claims fall within the scope of the Warsaw Convention by examining (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.
In Dagi v. Delta Airlines, Inc., a case involving a lawsuit by a passenger who flew from Boston to London on a Delta Airline aircraft, the First Circuit recently discussed the scope of the Montreal Convention. While on board, the passenger was accused of stealing a crew member’s bag. When the plane landed in London, the flight crew prevented him from leaving with the other passengers and later escorted him to a location inside the terminal, where he was held until a British police officer arrived. The police officer promptly released him and allowed him to leave the airport.
The passenger missed the 2-year statute of limitations under the Montreal Convention. Nevertheless, invoking both Massachusetts and British law, he filed suit alleging that Delta had falsely arrested and wrongfully imprisoned him. Delta moved to dismiss the claims as time-barred. Delta argued that – because the alleged injury began on the plane and continued while disembarking – the passenger’s claims were exclusively governed by the Montreal Convention, which preempts any local law. Applying the McCarthy test, the lower court agreed with Delta, concluding that the Montreal Convention preempted and time-barred the passenger’s claims.
On appeal, the passenger focused on his injury sustained at the terminal where Delta detained him in a location until the arrival of a police officer. He claimed that such unlawful detention constitutes a continuous new tort and a “fresh cause of action” not preempted by the Montreal Convention. The First Circuit rejected that argument, holding that the continuous tort of false imprisonment does not give rise to segmented “fresh” causes of action, that would be each separately actionable. The First Circuit noted that it did not need to apply the McCarthy test since the issue on appeal was not whether the passenger’s story happened “post-disembarkation.” In affirming dismissal of the claims as time-barred, the First Circuit found that the passenger’s false imprisonment was a continuing tort that started, by his own admission, on the plane, and then continued until he was released by the police officer and, therefore, fell within the scope of Montreal Convention.