Liability of an Airline to a Passenger for Damages Caused by Delay and or  Cancellation of International Airfare:

 

        This article is written by Attorney Vladimir M. Gorokhovsky of Goorkhovsky Law Office LLC. Attorney Gorokhovsky holds Juris Doctor Degree and Masters in Legal Learning (LL.M.) Degrees from the John Marshall Law School of Chicago, Illinois. He is a solo practitioner and sole shareholder of Gorokhovsky Law Office, LLC, Milwaukee based law firm, specializing in protecting of airlines passenger’s rights and of passengers’ claims against an airlines for damages occasioned by delay or cancellation of international airfare.  

 

           1. Introduction:

 

           For those of us who are frequently traveling worldwide on business or for pleasure and are exposed to various perils of international air travel, is important to know that airline is strictly liable for damages caused to a passenger by delays and cancellations of international flights. Likewise, an airline is also liable for delay, loss or damages to passenger baggage. Until November 4, 2003 this area of law was exclusively governed by Warsaw Convention, which was subsequently amended and replaced by the Montreal Convention. Nowadays, the panoply of airlines passengers’ claims are known as “Montreal Convention Claims.”  In particular, this article is focusing on Paragraphs 17, 21 and 22 of the Montreal Convention, and on issue of carrier liability for damage caused by delay in the carriage by air of passengers, baggage, or cargo.

 

           2. Historical Overview: International Airfare Treaties Governing Liability of Airlines: Warsaw Convention

                as replaced by the Montreal Convention:

 

            To begin with, as was recently noted by In re September 11 Litigation “in 1934, President Franklin D. Roosevelt, with the advice and consent of the Senate, proclaimed adherence by the US to a treaty applying "to all international transportation of persons, baggage, or goods performed by aircraft for hire" known as "Warsaw Convention." [1]  Indeed, for many years the field of international civil airfare transportation was governed by auspices of the Warsaw Convention[2], which was the law governing liability of airline to its passenger. [3]  Originally adopted in Warsaw in 1929, it was amended at The Hague in 1955 and again in Montreal in 1975.”[4]  The Warsaw Convention was thereafter amended by the Protocol Done at the Hague on 28 September 1955, 478 U.N.T.S. 371 ("The Hague Protocol"). Practically, the Warsaw Convention "system" included various laws, treaties and individual contracts governing the international transportation of persons, baggage, and goods by air. [5]  Thereafter, the Hague Protocol was amended by the Montreal Protocol No. 4 To Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as Amended by the Protocol Done at The Hague on 28 September 1955, 2145 U.N.T.S. 36 ("Montreal Protocol No. 4"). Thereupon, on November 4, 2003 the Unites States Senate ratified the new legal regime known officially as the “Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999,”[6] governing entire filed of international airfare transportation.[7]   See, generally, Multilateral Convention for International Carriage by Air, Montreal May 28, 1999., S. Treaty Doc. No. 106-45, reprinted in1999 WL 33292734 (2000). [8]   Presently, the Montreal Convention [9] unified the law that had developed under the older Warsaw Convention, [10] supersedes the Warsaw Convention, and provides exclusive remedy for claims arising out of the carriage of international passengers by air and has been construed as having a complete preemptive effect over all claims within its scope. [11]

 

        3.  Cause of Action for Delay or Cancellation of International Airfare Pursuant    to Article 19 of

             Montreal Convention:

 

             Pursuant to Par. 1, the Montreal Convention applies to international airfare flights between countries – signatories to the Convention, [12] and applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. Id. 1(1). International carriage is defined 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…, 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.”  [13]  Paragraph 19 provides for the cause of action for damages resulted from delays in international carriage of passengers, their baggage and of cargo, stating that:

 

                   “The Carrier is liable for damage occasioned by delay in the carriage by air of

                    passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for

                    damage occasioned by delay if it proves that it and its servants and agents

                    took all measures that could reasonably be required to avoid the damage or

                    that it was impossible for it or them to take such measures.” Id.

 

 Par. 19 creates potential liability only for “damage occasioned by delay”.[14]  Importantly, the carrier is not liable for the delay itself.[15]   Accordingly, to set forth a viable claim under Article 19,  a plaintiff must show that they suffered any type of “damage occasioned by delay” that is recoverable under Article 19.  As to damages, plaintiff can recover actual, general, special damages including economic damages. [16]  Although “purely emotional damages” such as damages for frustration, anguish, physical or mental upset independent of any physical injury may not be recovered under the Montreal Convention, courts have allowed recovery for physical and financial injuries, and even inconvenience. [17]  Yet, some courts are reluctant to allow recovery for inconvenience. [18]  For instance, in Ikekpeazu v. Air France, a plaintiff, a surgeon, alleged financial injury resulting from the delay in his flight. [19] His financial injury did not consist of out-of-pocket costs. Rather, his alleged financial injury arised from having to cancel the various surgeries and procedures he had been scheduled to perform during the week-long delay. Id. at 2. Although Ikekpeazu Court held that “plaintiff could not recover for his alleged emotional injuries, yet his "allegations of financial injury resulting from the delay in his return to practice provide[d] a basis for a claim" under Article 19.” Id.  Similarly, Daniel suggests that the economic damages recoverable under Article 19 include foreseeable, consequential damages, such as lost wages or profits occasioned by the delay. [20]         Furthermore, while, a plaintiff could not recover for emotional damages many of cases also suggest that plaintiffs may recover for physical injuries. [21]  For example, in Rubin v. Air China Ltd.[22] a plaintiff claimed that the flight delay caused "one of the worst sicknesses of [his] life," which in turn resulted in lost work and medical expenses.  In alleging that the delay caused him to become sick, plaintiff claimed physical harm caused  by the delay. Id.  After conducting extensive case analysis the Rubin Court held that “the case law suggests that this type of harm, if occasioned by the flight delay, is compensable under Article 19.” Id.  The Court also held that any medical expenses occasioned by the flight delay and plaintiff's resulting illness are clearly economic damages, which are recoverable under Article 19, provided that causation can be established.” Id.  Furthermore, “inconvenience damages” may be recoverable to the extent of plaintiff’s allegations of inconvenience of being trapped in the airport for many hours.  Id. In such scenario a plaintiff will be able to recover damages if he or she will show that inconvenience suffered has an economic component that is independent of other economic damages claims.[23]

 

          4.     Cap on damages: Importantly, one of very important consideration for airlines not to oppose the Montreal Convention regime is the provision of a cap of  4694 SDR on recoverable damages. Par. 22(1) set forth the cap on damages and states in pertinent part that:  “In the case of damage caused by delay as specified in Par. 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4 150 [24] Special Drawing Rights.” The cap is subject to periodic adjustment and alignment with  inflation rates.

 

          5.     Preemption of Remedies by Airlines Deregulation Act, (ADA):  From practitioner’s standpoint, it is important to know that often defendant airline will argues that plaintiff’s claim is preempted by Airline Deregulation Act of 1978 ("ADA").  [25]

Yet, nowadays, it is settled that the ADA did not preempt state court remedies for contract claims regarding airline rates, routes or services. [26]  The position on issue of ADA as followed by the Seven Circuit was recently explained by Hon. Joan H. Lefkow in Giannopoulos v. Iberia Líneas Aéreas De España, whereby the Court ruled that “ADA was enacted to promote "maximum reliance on competitive market forces." [27]  The Court further explained that “to ensure that states do not undo federal deregulation of the airline industry, the ADA includes a preemption provision providing that "a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart."  [28]Thus, for a claim to be preempted, "(1) [a] state must 'enact or enforce' a law that (2) 'relates to' airline rates, routes, or services, either by expressly referring to them or by having a significant economic effect upon them." [29] The above-cited discussion illustrates exception to ADA preemption for certain breach of contract claims as carved out by Supreme Court in Wolens, [30] whereby the Supreme Court held that the ADA does not "shelter airlines from suits alleging no violation of state-imposed obligations, but seeking recovery solely for the airline's alleged breach of its own, self-imposed undertakings." Id. at. 228. Adjudication of the claim must not require "enlargement or enhancement [of the contract] based on state laws or policies external to the agreement." [31]  Thus, for example, portion of a contract claim seeking punitive damages as allowed by state law would be preempted, while that seeking compensatory damages would not be. [32] As Wolens explains, "[a] remedy confined to a contract's terms simply holds parties to their agreements—in this instance, to business judgments an airline made public about its rates and services." Wolens, 513 U.S. at 229.

 

           6. Preemption by Montreal Convention of state law claims:   

 

           Besides the above-discussed preemption by Airline Deregulation Act it is well settled that the Montreal Convention also may preempt the state law causes of action and all damages claims, whether they arise out of federal or state law, that fall within the Convention's scope of liability and which are in conflict with the provisions of the Convention. [33]  However, presently courts are divided as to whether this means that a contract or tort claim falling within the scope of the Convention may proceed under state law or must be brought under the Convention. [34] Despite this division, the Seventh Circuit has previously decided that the Warsaw Convention is not the exclusive ground for recovery these claims. [35]  Therefore, in the Seven Circuit a state contract and tort claims, consistent with the Warsaw Convention, are not preempted. Id.  In reaching this decision, the Seventh Circuit relied upon the language of Article 24 of the Warsaw Convention which suggests that an action may be brought "in contract or tort or otherwise." Id. at 776. Article 29 of the Montreal Convention utilizes language similar to Article 24 of the Warsaw Convention and states that:

 

             “In the carriage of passengers, baggage and cargo, any action for damages,

              however founded, whether under the 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 without prejudice to the question as to

              who are the persons who have the right to bring suit and what are their

              respective rights. In any such action punitive, exemplary or any other non-

               compensatory damages shall not be recoverable.” Id. Art. 29.

 

Accordingly, the Seventh Circuit's holding in Sompo applies to the Montreal Convention as well. [36]  Illustrative of the Seven Circuit’s position is a recent case of Narkiewicz, [37] whereby a plaintiff brought her state-law breach of contract claims in the circuit court of Cook County, Illinois. Id. Airline swiftly removed this case to the United States District Court for Northern District of Illinois, arguing that the Montreal Convention preempts entire field. Granting plaintiff’s motion to remove case back to a state’s court,  Narkiewicz Court held that: “claims may be brought under the Convention or they may be brought "in contract or in tort or otherwise" but such claims are subject to an affirmative defense based on the conditions and limits of liability set out in the Convention.” Id. The Court further held that “because the conditions and limits of the Montreal Convention are defenses to the state-law claims raised by plaintiff, they do not provide a basis for federal-question subject matter jurisdiction.” Id. Accordingly, Narkiewicz Court granted plaintiff’s motion to remove back to a state’s court. Id  at 888.      

          

           Also, while the Montreal Convention does not create a cause of action for indemnification or contribution among carriers, it does not preclude such actions as may be available under local law. [38] Furthermore, the Montreal Convention distinguishes between “the right to damages” and “the right to recourse” and refers to these local law causes of action for indemnification, contribution, apportionment, or set-off, not as a “right to damages,” but as a “right of recourse.” [39]  Furthermore, in interpreting the preclusive effect of the Convention's "delay" provision, some courts have made a distinction between claims for breach of contract that arise from the delay itself, and contract claims that arise from a complete non-performance of the agreement to transport the passenger.[40]  For example, in Atia, a plaintiff was involved in an altercation prior to her flight, and the airline then refused to transport her.  Id.  Atia court determined that the Convention did not preempt this claim, and found the situation most analogous to Wolgel case[41] where passengers were "bumped" from a flight, and were then not offered any other transportation.” Id. Although some courts of appeals has not addressed this specific issue, yet several federal courts have remanded cases on the basis that claims for complete non-performance are not covered by the Convention's terms.[42]  From the pleadings stand-point, if plaintiff is not asserting a claim within Convention's coverage, and is not alleging damages arising from delay in transportation, but rather is asserting a claim involving a complete refusal by airline to transport plaintiff in a situation, like Atia and Wolgel, involving complete non-performance of a contract for carriage, such claim falls outside of Convention's provisions, and is not preempted. [43]

 

          7.   Statutes of Limitation:  Par. 35 of 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."  The statute of limitations is a condition precedent to bringing suit. [44]

 

           8.    Conclusion:  Often times, the air travel through blue skies can be accompanied by considerable delays, inconvenience, physical exhaustion and passenger’s misery.  It is important to know that the Montreal Convention provides considerable relief to aggrieved international traveler.

 

                                            /s/ Vladimir M. Gorokhovsky, LL.M.

                                                 Chicago, Illinois.  May, 2012 – June, 2013.

 

                                         

                                                 © All Rights Reserved Worldwide

 

 

[1] See, In re September 11 Litigation, 500 F.Supp.2d 356 (S.D.N.Y., 2007)(quoting Avero Belgium Ins. v. American Airlines, Inc., 423 F.3d 73, 83 (2d Cir.2005); also see Andreas F. Lowenfeld & Allan I. Mendelsohn, The United States and the Warsaw Convention, 80 HARV. L.REV. 497, 502 (1967). In 1998, the United States ratified Montreal Protocol No. 4 to Amend the [Warsaw Convention] as Amended by the Protocol Done at the Hague on 28 September 1955, 2145 U.N.T.S. 36 ("Montreal Protocol No. 4"), which took effect on March 4, 1999.

 

[2] Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876, reprinted at 49 U.S.C. § 40105, et. seq.

 

[3] Convention for Certain Rules Relating to International Transportation by Air, concluded at Warsaw, Poland, October 12, 1929, 49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11 (1934), reprinted in note following 49 U.S.C. § 40105("Warsaw Convention ").

 

[4] Avero Belguim Ins. v. American Airlines, Inc., 423 F.3d 73 (Fed. 2nd Cir., 2005)

 

 

[5] See, e.g.,  Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301 (2d Cir.2000).

 

[6]  Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, ICAO Doc. 9740, reprinted in S. TREATY DOC. NO. 106-45, 1999 WL 33292734 (2000)

 

[7] See, Ehrlich v. American Airlines, Inc., 360 F.3d 366, C.A.2 (N.Y.), 2004 (holding that the Montreal Convention is not an amendment to the Warsaw Convention, rather, the Montreal Convention is an entirely new treaty that unifies and replaces the system of liability that derives from the Warsaw Convention)(also holding that upon entry into force, the Montreal Convention will take precedence over the Warsaw Convention and any of its amendments and related instruments, and as a practical matter will supersede the private inter-carrier agreements, when the State or States relevant in a particular accident are party to the new Convention)

 

[8] See Press Statement, United States Department of State, Ratification of the 1999 Montreal Convention (Sept. 5, 2003), available at http://www.state.gov/r/pa/prs/ps/2003/ 23851pf.htm; Press Release, United States Department of Transportation, United States Ratifies 1999 Montreal Convention, Putting Treaty Into Effect (Sept. 5, 2003), available at http://www.dot.gov/ affairs/dot10303.htm.

 

[9] The Montreal Convention is available in the UNITED STATES CODE SERVICE (U.S.C.S.) volume titled International Agreements at 635 (2007). It is also available at S. Treaty Doc. No. 106-45, 1999 WL 33292734 at 29-45.

 

[10]  See, Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934) [hereinafter Warsaw Convention],

 

[11] See, Montreal Convention Art. 29; also see El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 162, 174-75 (1999);  Booker v. BWIA West Indies Airways, 2007 WL 1351927 at *2 (E.D.N.Y. May 08, 2007), aff’d, 307 Fed. Appx. 491 (2d Cir. Jan. 13, 2009) (construing Montreal Convention).

 

[12] http://legacy.icao.int/icao/en/leb/mtl99.pdf

 

[13] Id., art. 1(2).  

 

[14] Montreal Convention Art. 19

 

[15] Paradis v. Ghana Airways, Ltd., 348 F. Supp. 2d 106, 114 (S.D.N.Y. 2004), aff’d, 194 Fed. Appx. 5 (2nd Cir. August 18, 2006).  

 

[16] Ikekpeazu v. Air France, No. 3:04cv00711 (RNC), 2004 U.S. Dist. LEXIS 24580 at *4 (D. Conn. Dec. 6, 2004)(holding that plaintiff can also recover loss of work damages resulting at financial injury as economic damages). 

 

[17] Daniel v. Virgin Atl. Airways Ltd, 59 F. Supp. 2d 986, 992 (N.D. Cal. 1998) (denying recovery for emotional injuries, but permitting claims for physical injuries and economic damages, including inconvenience); Ikekpeazu, 2004 U.S. Dist. LEXIS 24580 at *4 (recognizing financial injury as a cognizable claim, but not emotional injury).

 

[18] Lee v. American Airlines, Inc., No. 3:01-CV-1179-P, 2002 U.S. Dist. LEXIS 12029 at *13 (N.D. Tex. July 2, 2002), aff'd, 355 F.3d 386, 387 (5th Cir. Tex. 2004). 

 

[19] See, Ikekpeazu, 2004 U.S. Dist. LEXIS 24580 at *4.

 

[20] See, Daniel, 59 F. Supp. 2d at 993 (collecting cases and summarizing case law on damages available under Article 19).  

 

[21] See, e.g., Daniel, 59 F. Supp. at 992 (indicating that plaintiff would have standing to bring claims under Article 19 if they alleged economic or physical injuries); Elnajjar v. Northwest Airlines, Inc., 2005 U.S. Dist. LEXIS 36792 at *15 n.5 ("because plaintiffs do not allege that they suffered any economic loss or physical injury . . . they cannot meet the conditions for recovery under Article 19"); Fields v. BWIA Int'l Airways Ltd., 2000 U.S. Dist. LEXIS 9397 at *19 (finding no entitlement to recovery because plaintiff did "not allege that she suffered any physical injury or any pecuniary loss"). 

 

[22] Rubin v. Air China Ltd. (N.D. Cal., 2011) 

 

[23] Cf, Daniel, 59 F. Supp. at 993 (permitting a claim for inconvenience that "encompass[ed] economic damages"); Lee, 2002 U.S. Dist. LEXIS 12029 at *14-15; Rubin v. Air China Ltd. (N.D. Cal., 2011)(reimbursement of round trip airfare tickets are not recoverable if plaintiff completed his or her trip).

 

[24] This limit was increased up to 4694 SDR (http://www.iatatravelcentre.com/e-ticket-notice/General/English/) On June 30, 2009, ICAO adjusted the liability limits set forth in Articles 21 and 22 of the Montreal Convention due to inflation. Accordingly, effective December 30, 2009, the liability limit set forth in Article 22(2) was increased from 1,000 SDRs to 1,131 SDRs. See U.S. Department of Transportation, Inflation Adjustments to Liability Limits Governed by the Montreal Convention Effective December 30, 2009, 74 F.R. 59017-18 (Nov. 16, 2009).

 

[25] ADA amended the Federal Aviation Act of 1958 ("FAA") to include an express prohibition against enactment or enforcement of state laws, rules, regulations, standards, or other provisions "having the force and effect of law relating to rates, routes, or services of any air carrier." 49 U.S.C. § 1305(a)(1), reenacted as 49 U.S.C. § 41713(b)(1). 

 

[26] See, Airline Deregulation Act ("ADA"), 49 U.S.C. § 41713; also see American Airlines, Inc. v. Wolens, 513 U.S. 219, 232, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995) (The ADA preemption clause stops states from imposing substantive standards regarding rates, routes or services, but does not channel civil actions into federal courts). 

 

[27] Giannopoulos v. Iberia Líneas Aéreas De España, S.A. (N.D. Ill., 2011)(citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S. Ct. 2031, 119 L. Ed. 2d 157 (1992)).

 

[28] 49 U.S.C. § 41713(b)(1)

 

[29] Cf., Giannopoulos v. Iberia Líneas Aéreas De España, S.A. (N.D. Ill., 2011)(citing Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1432 (7th Cir. 1996); United Airlines, Inc. v. Mesa Airlines, Inc., 219 F.3d 605, 607 (7th Cir. 2000)(holding that state common law qualifies as a provision having the force and effect of law for purposes of the first prong of the preemption analysis).

 

[30] American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S. Ct. 817, 130 L. Ed. 2d 715 (1995)

 

[31] Id. at 233; see also Onoh v. Nw. Airlines, Inc., 613 F.3d 596, 600 (5th Cir. 2000).

 

[32] Travel All, 73 F.3d at 1432 n.8; In re Jetblue Airways Corp. Privacy Litig., 37,9 F. Supp. 2d 299 (E.D.N.Y. 2005).

 

[33] El Al Israel Airlines, Ltd v. Tseng, 525 U.S. 155, 175. 119 S.Ct. 662, 142 L. Ed. 2d 576 (1999)(holding that the Montreal Convention applies to claims made against airlines by passengers for claims arising from international air travel, and provides the exclusive remedy to the extent to which plaintiffs' claims are within the Convention's scope) (holding that Article 19 of the Convention provides the exclusive remedy for damages in instances of delay); 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).

 

[34] See, Husmann v. TransWorld Airlines, Inc., 169 F.3d 1151, 1152-53 (8th Cir. 1999);  Nankin v. Cont'l Airlines, Inc., No. CV 09-07851 MMM (RZx), 2010 WL 342632, at *6 (C.D. Cal. Jan. 29, 2010). 

 

[35] Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., Ltd., 522 F.3d 776, 785-87 (7th Cir.2008).

 

[36] Cosgrove-Goodman v. UAL Corp., No. 10-cv-1908, 2010 WL 2197674, at *3 (N.D. Ill. June 2, 2010).  

 

[37] Narkiewicz-Laine v. Scandinavian Airlines, 587 F.Supp.2d 888 (N.D. Ill., 2008) (holding that the liability limitation provisions of the Convention simply operate as an affirmative defense). 

 

[38] See, In re Air Crash at Lexington, KY, No. 5:07-CV-316, 2007 WL 2915187 (E .D.Ky. Oct. 5, 2007) (holding that the Montreal Convention does not preempt a local law cause of action for apportionment among joint tortfeasors); Sompo, 522 F.3d at 776 (holding the same for the Warsaw Convention)(holding that 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 inter-carrier agreements of which the Warsaw Convention system of liability consists.'").

 

[39]  Chubb Insurance Company of Europe v. Menlo Worldwide Forwarding Inc., 634 F.3d 1023 (9th Cir., 2011)(holding that the plain language of the Montreal Convention makes clear that actions for indemnification and contribution are not subject to Article 35's two-year statute of limitations)(holding that the Montreal Convention refers to these local law causes of action for indemnification, contribution, apportionment, or set-off, not as a “right to damages,” but as a “right of recourse”).

 

[40] Atia v. Delta Airlines, Inc., 692 F.Supp.2d 693, 699-701 (E.D. Ky. 2010)

 

[41] The Wolgel court concluded that this was not a claim arising from "delay" that is covered by the Warsaw Convention (later replaced by the Montreal Convention), but was, instead, an issue of non-performance that does not arise under the Convention because the plaintiffs "never left the airport." Wolgel v. Mexicana Airlines, 821 F.2d 442 (7th Cir. 1987)

 

[42] See, Nankin v. Continental Airlines, Inc., 2010 WL 342632 at *7 (C.D. Cal. Jan. 29, 2010) (Montreal Convention not applicable to plaintiffs' claims because plaintiff alleged "that, through its employees, Continental refused to perform the contract"); Mullaney v. Delta Air Lines, Inc., 2009 WL 1584899 at *3 (S.D. N.Y. June 3, 2009) (breach of contract claim was not preempted by the Montreal Convention because plaintiff sought "damages resulting from Delta's refusal to provide him with any flight home after having taken his money for a ticket-in short, for failure to perform its obligation to provide carriage in exchange for money it had received"); In re Nigeria Charter Flights Contract Litig., 520 F.Supp.2d 447, 455 (E.D. N.Y. 2007) (breach of contract claims fell outside the scope of the Montreal Convention because "the plain language of Article 19 of the Montreal Convention indicates that it governs claims for delay, not nonperformance"); Weiss v. El Al Israel Airlines, Ltd., 433 F.Supp.2d 361, 369 (S.D. N.Y. 2006) (plaintiffs' claims not preempted by the Montreal Convention because they were "grounded in a cause of action for non-performance of a contract and not delay"). 

 

[43] Cf., Atia., 692 F.Supp.2d at 693; Wolgel, 821 F.2d at 442.

 

[44] See, Am. Home Assurance Co. v. Kuehne & Nagel, 544 F. Supp. 2d 261, 263 (S.D.N.Y. 2008).