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Olivette Smith-Ligpn and George Smith v. British Airways Worldwide


April 20, 2012


The opinion of the court was delivered by: Eduardo C. Robreno, J.


Plaintiffs bring this breach-of-contract action for damages stemming from the delay of an international flight and loss of baggage. Defendant moved to dismiss on the ground that the Montreal Convention*fn1 preempts Plaintiffs' claim, which is, in turn, time-barred by the Convention's two-year statute of limitations. For the foregoing reasons, the Court will grant the motion to dismiss.


Olivette Smith-Ligpn and George Smith ("Plaintiffs") arranged to travel by airplane on a flight operated by British Airways ("Defendant"), on December 7, 2007, from Philadelphia, Pennsylvania, to London, England, and ultimately to Freetown, Sierra Leone, for a wedding. Compl. ¶ 6, ECF No. 1. When they arrived at the Philadelphia Airport, a British Airways representative informed them that, due to delay, they would have twenty minutes to make the connecting flight in London. Id. ¶ 7. Plaintiffs asked the representative to hold the connecting flight to allow them time to make the transfer. Id.

By the time Plaintiffs arrived in London (1.5 hours late), the connecting flight to Freetown left without them. Id. ¶ 9. And because no new flights left for Freetown for two weeks, Plaintiffs instead flew to Casablanca, Morocco, and took ground transportation to Freetown. Id. ¶¶ 10-11. Plaintiffs lost their luggage, which contained valuables in excess of $5,000, and George Smith's diabetes medication. Id. ¶¶ 12-13. The loss of his medication exacerbated his condition, which twice required hospitalization, and caused him to incur expenses in excess of $100,000. Id. ¶¶ 13-14. Since the incident, Mr. Smith's diabetes has been "essentially out of control" and causes severe medical problems. Id. ¶ 16.


On December 2, 2011, Plaintiffs filed a Complaint against Defendant alleging breach of contract and seeking compensatory damages in the amount of $150,000.

On January 9, 2012, Defendant filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Mot. to Dismiss 1, ECF No. 2. Plaintiffs responded. Pls.' Resp. 1, ECF No. 6. And Defendant moved for leave to reply and attached a reply brief to the motion. Def.'s Reply 1, ECF No. 7. On April 17, 2012, the Court held a hearing with counsel for the parties and now rules on the motion.*fn3


A party may move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When considering such a motion, the Court must "accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." DeBenedictis v. Merrill Lynch & Co., 492 F.3d 209, 215 (3d Cir. 2007) (internal quotation marks removed). To withstand a motion to dismiss, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. Although a plaintiff is entitled to all reasonable inferences from the facts alleged, a plaintiff's legal conclusions are not entitled to deference and the Court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).

The pleadings must contain sufficient factual allegations so as to state a facially plausible claim for relief. See, e.g., Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). In deciding a Rule 12(b)(6) motion, the Court limits its inquiry to the facts alleged in the complaint and its attachments, matters of public record, and undisputedly authentic documents if the complainant's claims are based upon these documents. See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).


Defendant moves to dismiss Plaintiffs' claim because it is time-barred by the Montreal Convention's two-year statute of limitations. The U.S. Senate ratified the Montreal Convention on July 31, 2003, making the agreement the supreme law of the land.*fn4 See 149 Cong. Rec. 20,813 (2003); U.S. Const. art. VI, cl.

2. First, the Court must determine whether Plaintiffs' claim falls within the scope of the Montreal Convention. Second, if the Montreal Convention applies, the Court must determine whether Plaintiffs' claim is timely under the Convention.

A. Plaintiffs' Claim Falls Within the Scope of the Montreal Convention

Plaintiffs' breach-of-contract claim falls within the scope of the Montreal Convention. First, the Montreal Convention "applies to all international carriage of persons, baggage or cargo performed by aircraft for reward." Montreal Convention, supra note 1, art. 1(1). "International carriage" means: 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 States 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.

Id. art. 1(2). Plaintiffs' trip from Philadelphia, Pennsylvania, to Freetown, Sierra Leone, with a stop in London, England, is travel on an international carriage under the plain meaning of the Montreal Convention's definition.

Second, the subject of Plaintiffs' breach-of-contract claim is within the Montreal Convention's scope of liability. Article 17 establishes liability for damage to checked and unchecked baggage.*fn5 And Article 19 establishes liability for certain delays.*fn6 Finally, the Montreal Convention preempts all damages claims, whether they arise out of federal or state law, that fall within the Convention's scope of liability. Id. art. 29; e.g., Weiss v. El Al Israel Airlines, 433 F. Supp. 2d 361, 365 (S.D.N.Y. 2006) ("It is well settled that [Article 29] means that for all air transportation to which the Convention applies, if an action for damages, however founded, falls within one [of] the Convention's three damage provisions, the Convention provides the sole cause of action under which a claimant may seek redress for his injuries."); see also Pennington v. British Airways, 275 F. Supp. 2d 601, 603-04 (E.D. Pa. 2003) (Robreno, J.) (noting that state-law claims within scope of Warsaw Convention were preempted); Paradis v. Ghana Airways, 348 F. Supp. 2d 106, 111 (S.D.N.Y. 2004) (noting that preemptive effect of Montreal Convention is "substantially the same" as Warsaw Convention). Because Plaintiffs' claim is for damages arising from delay of the flight out of Philadelphia and loss of baggage, those claims plainly fall within the scope of liability set by the Montreal Convention. See Montreal Convention, supra note 1, art. 17 ("The carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage . . . during any period within which the checked baggage was in the charge of the carrier."); id. art. 19 ("The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo.").

Plaintiffs raise two arguments in attempt to escape the reach of the Montreal Convention. First, Plaintiffs argue that the breach-of-contract claim survives because "the Montreal Convention applies to injuries occurring on the aircraft (or getting onto or off of exiting the plane)," and, therefore, the Montreal Convention is not applicable to Plaintiffs' claim.

Pls.' Resp. 1. Rather, Plaintiffs contend, the "injuries occurred herein due to delay and complete lack of coordination of fights [sic], which prevented the Plaintiff's [sic] from making their connecting flight in London and as a practical matter forcing them to return to their original destination."

Id. Contrary to Plaintiffs' contention, as discussed above, damages arising from lost baggage and delay are covered by Articles 17 and 19 of the Montreal Convention. Therefore, Plaintiffs' claim that Mr. Smith suffered personal injury from his lack of diabetes medication, which arose out of the delay of their flight and, more particularly, the loss of their baggage, falls within the scope of the Montreal Convention.

Second, Plaintiffs argue the breach-of-contract claim survives because it falls under the classification of "bumping or intentionally overbooking." Pls.' Resp. 1-2. Bumping is the practice whereby an airline denies a passenger the opportunity to board because of intentional overbooking of a flight. See Nader v. Allegheny Airlines, 426 U.S. 290, 293-94 (1976). Although there is some authority that the Montreal Convention's predecessor, the Warsaw Convention, did not provide a cause of action for bumping, see, e.g., Wolgel v. Mexicana Airlines, 821 F.2d 442, 445 (7th Cir. 1987) (holding that Warsaw Convention's two-year statute of limitations did not apply because convention did not provide cause of action for bumping), Plaintiffs' argument is completely without merit. Plaintiffs' Complaint describes that the initial flight was delayed; they were not "bumped" due to overbooking*fn7 or otherwise denied an opportunity to board their flight to London.*fn8 Therefore, Plaintiffs' claim falls within the scope of the Montreal Convention.

B. The Montreal Convention's Statute of Limitations Bars Plaintiffs' Claim

Having determined that Plaintiffs' claim falls within the scope of the Montreal Convention, the Court must now determine whether Plaintiffs' claim is timely. The Montreal Convention fixes a two-year statute of limitations that runs "from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped." Montreal Convention, supra note 1, art. 35. The statute of limitations is a condition precedent to bringing suit. See Am. Home Assurance Co. v. Kuehne & Nagel, 544 F. Supp. 2d 261, 263 (S.D.N.Y. 2008). Plaintiffs allege they flew from Philadelphia to London on December 7, 2007. Plaintiffs filed the Complaint on December 2, 2011. The Complaint, therefore, is time-barred by the Montreal Convention, which provides for a two-year limitations period.*fn9


For the reasons provided, the Court will grant the Motion to Dismiss and dismiss the Complaint. An appropriate order will follow.

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