Fuondjing v. American Airlines, Inc.

Full title: FANGBENG FUONDJING, et al. v. AMERICAN AIRLINES, INC

Court: United States District Court, D. Maryland

Date published: Jan 19, 2011

Civil Action No. DKC 10-1169 (D. Md. Jan. 19, 2011)

Opinion

Civil Action No. DKC 10-1169.

January 19, 2011

MEMORANDUM OPINION

DEBORAH CHASANOW, District Judge

Presently pending and ready for resolution in this case involving common law contract and tort claims arising in the course of international air travel is a motion to dismiss filed by Defendant American Airlines, Inc. (ECF No. 10). The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Defendant's motion will be granted.

I. Background

The following facts are set forth in the complaint. (ECF No. 2). On June 26, 2008, Plaintiff Fangbeng Fuondjing ("Mr. Fuondjing") purchased round-trip airfare for himself and three family members to travel from Washington, D.C., to Douala, Cameroon, for the purpose of attending memorial services for a deceased relative. The memorial services were to take place from December 12 through 14, 2008. Mr. Fuondjing purchased tickets for a flight departing from Ronald Reagan National Airport, in Washington, D.C., on December 10, 2008, at 1:59 p.m., and arriving at John F. Kennedy International Airport, in New York City, at 3:20 p.m. From there, Mr. Fuondjing and his family were scheduled to board a flight to Brussels at 6:15 p.m., which was to arrive on December 11 at 10:40 a.m. The connecting flight from Brussels to Cameroon was scheduled to depart at 5:25 p.m. on the same date.

Approximately one month after he booked the tickets, Mr. Fuondjing received an email from his travel agent advising that the departure time for the first leg of the itinerary — i.e., the flight from the District of Columbia to New York City — had been changed from 1:59 p.m. to 4:00 p.m. Concerned that the rescheduled departure time would have the family arriving in New York too late to board the connecting flight to Brussels, Mr. Fuondjing promptly contacted his travel agent and learned that the change had been made by the air carrier, Defendant American Airlines ("American"). When Mr. Fuondjing contacted American, he was assured that the family would arrive in time to catch the connecting flight. Despite this assurance, Mr. Fuondjing was skeptical; he contacted American a second time and suggested that the family drive to New York City, rather than fly. An American representative informed him that if the family missed the first leg of the trip, the entire itinerary would be forfeited. The representative advised, however, that precautionary measures would be taken to ensure the family's arrival in New York in time to board the connecting flight. On or about November 11, 2008, Mr. Fuondjing purchased tickets for two nephews to join the family on the trip to Cameroon.¹

1 Mr. Fuondjing, the three family members for whom he originally purchased tickets, and his two nephews are named as plaintiffs in this action. Aside from Mr. Fuondjing, the complaint provides no basis for distinguishing the plaintiffs, but it appears that four of them were between the ages of two and eight years-old at the time of the trip. (ECF No. 2, ¶ 26). Mr. Fuondjing does not purport to bring suit on behalf of the minor children; rather, they are named as plaintiffs in their own right. Pursuant to Fed.R.Civ.P. 17(b)(3), capacity to sue or be sued is determined "by the law of the state where the court is located." In Maryland, it is well-settled that minors lack the capacity to sue in their own right. See Fox v. Wills, 390 Md. 620, 625-26 (2006).

On December 10, 2008, Plaintiffs arrived at Reagan National Airport at 11:45 a.m., hoping to board an earlier flight to New York City, but were not permitted to do so. Plaintiffs' flight, which was scheduled to leave at 4:00 p.m., did not depart until 5:30 p.m. Consequently, Plaintiffs missed their connecting flight; spent four nights, without access to their luggage, in hotel rooms in New York and Brussels; and did not arrive in Cameroon until December 15, after the memorial services had concluded.

On March 8, 2010, Plaintiffs filed suit against American in the Circuit Court for Montgomery County, Maryland, alleging contract and tort claims under Maryland state law. (ECF No. 2). American timely removed the case to this court (ECF No. 1) and, shortly thereafter, filed the pending motion to dismiss, asserting that Plaintiffs' claims are completely preempted by the Montreal Convention, a federal treaty (ECF No. 10). Plaintiffs have opposed this motion. (ECF No. 12).

II. Standard of Review

The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4^th Cir. 1999). Except in certain specified cases, a plaintiff's complaint need only satisfy the "simplified pleading standard" of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2). Nevertheless, "Rule 8(a)(2) still requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n. 3 (2007). That showing must consist of more than "a formulaic recitation of the elements of a cause of action" or "naked assertion[s] devoid of further factual enhancement." Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009) (internal citations omitted).

In its determination, the court must consider all well-pled allegations in a complaint as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and must construe all factual allegations in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4^th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4^th Cir. 1993)). The court need not, however, accept unsupported legal allegations, Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4^th Cir. 1989), legal conclusions couched as factual allegations, Iqbal, 129 S.Ct. at 1950, or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4^th Cir. 1979). See also Francis v. Giacomelli, 588 F.3d 186, 193 (4^th Cir. 2009). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but it has not 'show[n] . . . that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)). Thus, "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

III. Analysis

On its face, Plaintiffs' complaint raises state law claims of breach of contract, negligence, and fraudulent and/or reckless conduct. In removing to this court, American asserted that the complaint nevertheless presents a federal question because the state law claims are completely preempted by the Montreal Convention. It also asserted that there is removal jurisdiction based on diversity of citizenship. (ECF No. 1). In moving to dismiss, American argues that Plaintiffs' "state law claims stand or fall on whether they are completely preempted by the Montreal Convention, both for purposes of determining the existence of federal question jurisdiction and whether their complaint is legally sufficient to withstand a motion to dismiss." (ECF No. 10, at 8).

A. The Montreal Convention

The Montreal Convention, formally known as the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, reprinted in S. Treaty Doc. No. 106-45, 1999 WL 33292734 (2000) ("Montreal Convention" or "Convention"), entered into force on November 4, 2003, and succeeded the Warsaw Convention as the treaty governing rights and liabilities in international air carriage.² By its express language, the Convention governs "all international carriage of persons, baggage or cargo performed by aircraft for reward." Id. at Art. 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 . . . are situated either within the territories of two State 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. at Art. 1(2). Both the United States and Cameroon are signatories to the Convention, and it is undisputed that Plaintiffs' itinerary constitutes "international carriage," as contemplated under Article 1(2). See Listing of signatories to the Montreal Convention, http://www.icao.int/icao/en/leb/mtl99.pdf (last visited Jan. 18, 2011) (copy attached).

2 The Warsaw Convention was formally known as the Convention for Unification of Certain Rules for International Air, Oct. 29, 1934, reprinted at 49 Stat. 3000, et seq. ("Warsaw Convention"). While the Montreal Convention "reversed one of the premises of the original Warsaw Convention, which favored the airlines at the expense of consumers," it "did not alter the original Warsaw Convention goal of maintaining limited and predictable damage amounts for airlines." Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., 522 F.3d 776, 781 (7^th Cir. 2008). Thus, "courts construing the Montreal Convention have concluded that it has 'substantially the same preemptive effect' as the Warsaw Convention," and have looked to case law interpreting the Warsaw Convention in considering related provisions under the succeeding treaty. See Igwe v. Northwest Airlines, Inc., No. H-05-1423, 2007 WL 43811, at *2 (S.D.Tex. Jan. 4, 2007) (quoting Paradis v. Ghana Airways Ltd., 348 F.Supp.2d 106, 111 (S.D.N.Y. 2004)).

Like its predecessor treaty, the Montreal Convention prescribes liability for three categories of damages arising from the international carriage of passengers, baggage, or cargo by airlines. Article 17 of the Convention establishes carrier liability for death or bodily injury of a passenger or the destruction, loss of, or damage to baggage occurring on board a flight or in the process of embarking or disembarking; Article 18 provides for damage to cargo, subject to certain exclusions; and Article 19 applies to claims for damages occasioned by delay in the carriage of passengers, baggage, or cargo. See Weiss v. El Al Israel Airlines, Ltd., 433 F.Supp.2d 361, 365 (S.D.N.Y. 2006).

As relevant to the instant case, Article 22 of the Convention limits airline liability in relation to delay in the carriage of passengers, baggage, or cargo. Specifically, it limits liability for damages caused by delay in the carriage of passengers to 4,150 Special Drawing Rights ("SDR")³ and damages caused by delay in the carriage of baggage to 1,000 SDR per passenger, unless the passenger declares a higher value. See Montreal Convention Art., 22(1) and (2). The Convention also contains an explicit exclusivity provision, which sets forth the governing conditions and liability limits of any case falling within its scope:

3 "A Special Drawing Right ('SDR') is an artificial currency, established by a 'basket' of global currencies (the U.S. dollar, the euro, the Japanese yen and the British pound), and published daily by the International Monetary Fund," the value of which "fluctuates based on the global currency market, and . . . is determined 'at the date of the judgment.'" Sompo Japan Ins., Inc., 522 F.3d at 779 n. 3.

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this 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. at Art. 29.

The Supreme Court of the United States has not yet interpreted the exclusivity clause of the Montreal Convention, but it has discussed the broad sweep of analogous provisions under the Warsaw Convention. See El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999). In Tseng, a passenger sued in New York state court for, inter alia, psychological and psychosomatic injuries she suffered in relation to an intrusive security search prior to boarding an international flight. The airline removed to federal court on the basis of the Foreign Sovereign Immunities Act, see Tseng v. El Al Israel Airlines, Ltd., 122 F.3d 99, 101 (2^d Cir. 1997), and argued that the plaintiff's action was governed by the rights and liabilities set forth in the Warsaw Convention. The district court agreed, dismissing her personal injury claim because she failed to allege that she suffered a physical injury, as required to recover under Article 17, and finding that the Warsaw Convention precluded her from pursuing a claim under New York state tort law. The United States Court of Appeals for the Second Circuit reversed, in relevant part, finding that "a plaintiff who did not qualify for relief under the Convention could seek relief under local law for an injury sustained in the course of international air travel." Tseng, 525 U.S. at 161.

Before the Supreme Court, the passenger conceded that she could not recover under Article 17 of the Warsaw Convention, but argued that, because of that fact, she should have been permitted to assert her state law tort claim. The Court rejected that argument, holding that "recovery for a personal injury suffered 'on board [an] aircraft or in the course of any of the operations of embarking or disembarking,' . . . if not allowed under the Convention, is not available at all." Id. at 161. "Given the Convention's comprehensive scheme of liability rules and textual emphasis on uniformity," the Court explained, "we would be hard put to conclude that the delegates at Warsaw meant to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations." Id. at 169. Still, the Court recognized that the preemptive effect of the treaty was not without limits:

[T]he Convention's preemptive effect on local law extends no further than the Convention's own substantive scope. . . . A carrier, therefore, is indisputably subject to liability under local law for injuries arising outside of that scope: e.g., for passenger injuries occurring before 'any of the operations of embarking or disembarking.

Id. at 172. The majority further opined that because "the nation-state, not subdivisions within one nation, is the focus of the Convention and the perspective of our treaty partners . . . [o]ur home-centered preemption analysis . . . should not be applied, mechanically, in construing our international obligations." Id. at 175.⁴ Most importantly, the Court recognized that the exclusivity question had "been settled prospectively" by a then-recent change in the Warsaw Convention effected by Montreal Protocol No. 4. That comprehensive language appears in Article 29 of the Montreal Convention, as quoted above.

4 This passage was specifically directed toward the dissent written by Justice Stevens, who disagreed with the premise underlying the majority decision that "preemption analysis should be applied differently to treaties than to other kinds of federal law." Id. at 177 (Stevens, J., dissenting).

B. Complete Preemption

Defendant contends that Plaintiffs' claims are "completely" preempted by the Montreal Convention. The concept of "complete preemption" is to be contrasted with that of "conflict preemption." See Sonoco Prods. Co. v. Physicians Health Plan, Inc., 338 F.3d 366, 370-71 (4^th Cir. 2003).

The question of whether complete or conflict preemption applies often arises in the context of a motion to remand after an air carrier defendant removes a case from state court asserting that a complaint facially raising state law claims is completely preempted by the Montreal Convention, and therefore presents a federal question. Under the doctrine of conflict preemption, state laws that conflict with federal laws are preempted, and preemption may be asserted as a federal defense to the plaintiff's state court law suit. Id. (citing Darcangelo v. Verizon Communications, Inc., 292 F.3d 181, 186-87 (4^th Cir. 2002)). Because conflict preemption is a defense, however, "it does not appear on the face of a well-pleaded complaint, and, therefore does not authorize removal to federal court." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). The complete preemption doctrine, by contrast, does constitute a proper basis for removal:

In the case of complete preemption . . . Congress "so completely pre-empt[s] a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Taylor, 481 U.S. at 63-64, 107 S.Ct. 1542. That is to say, the doctrine of complete preemption "converts an ordinary state common law complaint into one stating a federal claim." Id. at 65, 107 S.Ct. 1542. Thus, the doctrine of complete preemption serves as a corollary to the well-pleaded complaint rule: because the state claims in the complaint are converted into federal claims, the federal claims appear on the face of the complaint. Id. at 63-65, 107 S.Ct. 1542.

Darcangelo, 292 F.3d at 187; see also Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 8 (2003) ("when a federal statute wholly displaces the state-law cause of action through complete pre-emption . . . a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law.").

Neither the Supreme Court nor the Fourth Circuit has specifically addressed whether the Warsaw or Montreal Conventions completely preempt state law claims, and "[t]here is clearly a split of authority" among lower courts considering the question. See Knowlton v. American Airlines, Inc., No. RDB-06-854, 2007 WL 273794, at *5 (D.Md. Jan. 31, 2007).⁵ That question need not be answered here, however, because the propriety of removal is not at issue. Although American removed partially on the basis of federal question jurisdiction — arguing, as it does in the instant motion, complete preemption under the Montreal Convention — it also asserted diversity of citizenship as a jurisdictional basis, and the requirements for diversity jurisdiction appear to be met. Plaintiffs are Maryland citizens and American is a citizen of Delaware and Texas. The amount in controversy, moreover, is well over $1 million.

5 Courts have offered conflicting interpretations of whether Tseng supports conflict or complete preemption. Compare Sompo Japan Ins., Inc., 522 F.3d at 781 (citing Tseng for the proposition that "the [Warsaw] Convention's preemption is not complete"), with Husmann v. Trans World Airlines, Inc., 169 F.3d 1151, 1153 n. 5 (8^th Cir. 1999) (finding Tseng "reinforces our decision that Husmann's state law cause of action is completely preempted by the Warsaw Convention").

If Plaintiffs' claims are subject only to conflict, rather than complete, preemption, American would typically be required to raise the preemption argument in a pleading under Fed.R.Civ.P. 8(c). See Eniola v. Leasecomm Corp., 214 F.Supp.2d 520, 525 (D.Md. 2002); Gray v. Metts, 203 F.Supp.2d 426, 428 (D.Md. 2002). Courts have found dismissal to be proper, however, "when the face of the complaint clearly reveals the existence of a meritorious affirmative defense." Brooks v. City of Winston-Salem, North Carolina, 85 F.3d 178, 181 (4^th Cir. 1996); see also Andrews v. Daw, 201 F.3d 521, 524 (4^th Cir. 2000) (permitting dismissal on res judicata grounds); Rice v. PNC Bank, N.A., No. PJM 10-07, 2010 WL 1711496, at *3 (D.Md. Apr. 26, 2010) (dismissing TILA claims on motion to dismiss as untimely). Here, as the following discussion will show, a conflict preemption defense would be meritorious, and considering the Supreme Court's cautionary statement in Tseng, 525 U.S. at 175, that preemption analysis "should not be applied, mechanically, in construing our international obligations," American can assert conflict preemption in its dismissal motion. Thus, although Defendant may be incorrect that Plaintiffs' "state law claims stand or fall on whether they are completely preempted by the Montreal Convention" (ECF No. 10, at 8), the general issue concerning the preemptive scope of the C onvention is ripe for resolution.

C. Application of the Montreal Convention

Article 29 is an explicit exclusivity provision. As the First Circuit stated in a particularly clear and straightforward manner, "[i]f the Convention applies in a particular case, it is preemptive, and the trier of fact must then determine whether the carrier is liable under the Convention. . . . If the Convention is not applicable, it is not preemptive, and the passenger is free to pursue his or her claim under local law." Acevedo-Reinoso v. Iberia Lineas Aereas de Espana S.A., 449 F.3d 7, 13 (1^st Cir. 2006).

Plaintiffs' claims, which arise from a four-day delay in their arrival to Cameroon, fall squarely within the substantive scope of Article 19. Under that provision, "[t]he carrier is liable for damages occasioned by delay in carriage by air of passengers, baggage or cargo." Montreal Convention, Art. 19.

In their opposition papers, Plaintiffs argue that Article 19 does not apply because of the second sentence of that provision: "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." Plaintiffs contend that American did not take all reasonable measures to avoid damage. Their argument in this regard is based on a misunderstanding of the clear language of the relevant provision. Under Article 19, American may escape liability for damages for delay upon proving that it took all reasonable measures to avoid such damages or that it was impossible for it to take those measures. Its failure to do so, however, does not mean that Article 19 does not apply, as Plaintiffs assert.

Plaintiffs further contend that "[s]ome New York federal courts have refused to rule that a tort claim is preempted where an airline has engaged in 'outrageous' conduct that went 'beyond the scope of normal airline operations,'" citing In re Nigeria Flights Contract Litigation, 520 F.Supp.2d 447 (E.D.N.Y. 2007). The cited portion of that opinion, however, addresses a preemption issue under the Airline Deregulation Act of 1978 ("ADA"), 49 U.S.C. § 41713. Id. at 469 ("the ADA should not be 'construed in a manner that insulates air carriers from tort liability for injuries caused by outrageous conduct that goes beyond the scope of normal aircraft operations") (internal marks omitted). This argument is unpersuasive in the context of the Montreal Convention, which contains its own provisions regarding limitations on liability.⁶ In fact, Plaintiffs cite a string of cases in support of a general argument that "Defendant's broad preemption defense must fail" (ECF No. 12, at 8), each of which addresses preemption claims under the ADA and is, therefore, wholly inapposite.

6 Notably, In re Nigeria, 520 F.Supp.2d at 453, also contains an extensive discussion of Montreal Convention jurisprudence, specifically addressing the only conceivable argument Plaintiffs could have raised here, i.e., that American's conduct constituted nonperformance of the contract, rather than delay, and therefore was not governed by Article 19 of the Convention. Anticipating that Plaintiffs would raise this claim, American argued against it in the memorandum accompanying its motion to dismiss. Plaintiffs failed to take this cue, but even if they had, such an argument would have been unavailing. Courts finding that the Convention does not apply because there was nonperformance, rather than delay, have considered facts in which the airline "simply refused to fly [the plaintiffs], without offering alternate transportation." Id. at 454; see also Nankin v. Continental Airlines, No. 09-07851, 2010 WL 342632, at *7 (C.D.Cal. Jan. 29, 2010) (nonperformance where airline "refused to perform the contract"); Weiss, 433 F.Supp.2d at 366 (nonperformance where the plaintiffs "never left the airport"). Here, Plaintiffs' alleged damages stem from the fact that their arrival in Cameroon was delayed past the date of the memorial services they hoped to attend. See Kamanou-Goune v. Swiss International Airlines, No. 08 Civ. 7153 (SCR) (GAY), 2009 WL 874600, at *4 (S.D.N.Y. Mar. 27, 2009) ("Courts have construed nonperformance claims as sounding in delay where plaintiff was initially refused boarding but the defendant ultimately transported plaintiff on a later flight.").

Plaintiffs additionally argue that "Defendant's acts constituted willful misconduct," and cite language in Article 25 of the Warsaw Convention, as amended by Montreal Protocol No. 4, providing that "[t]he limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission . . . done with intent to cause damage or recklessly and with knowledge that damage would probably result." (Id. at 9, 10-11). See Shah v. Kuwait Airways Corporation, 653 F.Supp.2d 499, 506 (S.D.N.Y. 2009) (explaining that courts "have interpreted the voluminous case law on the misconduct exception to the Warsaw Convention [under Article 25] as applying with equal force to the analogous provision in the Montreal Convention"), rev'd on other grounds, 387 Fed.Appx. 13 (2^d Cir. 2010).⁷ To the extent Plaintiffs argue that American's alleged willful misconduct exempts their claims from the Montreal Convention, similar arguments have been uniformly rejected by other courts. See Carey v. United Airlines, 255 F.3d 1044, 1049 (9^th Cir. 2001) ("nothing in Article 25 suggests that the Warsaw Convention does not apply to claims arising out of intentional misconduct"). Indeed, proving willful misconduct would lift the liability limits otherwise imposed by Article 22 of the Montreal Convention, but would not exempt the complaint from the Convention altogether. See Booker v. BWIA West Indies Airways Ltd., No. 06-CV-2146 (RER), 2007 WL 1351927, at *3 (E.D.N.Y. May 8, 2007) ("the language of the Montreal Convention itself makes it clear that intentional acts by a defendant merely lifts the limitation of liability rather than remove claims from the Montreal Convention's scope").

7 The parallel provision of the Montreal Convention is Art. 22(5).

Insofar as Plaintiffs contend that the Montreal Convention, assuming it applies, does not limit the damages they seek, their argument is premature. Although they have not specifically requested leave to amend their complaint as an alternative argument, leave should freely be granted in circumstances such as this. See Sakaria v. Trans World Airlines, 8 F.3d 164, 169 (4^th Cir. 1993) (finding error where district court did not grant leave to amend to assert claim under the Warsaw Convention: "the command of Fed.R.Civ.P. 15(a) that leave to amend should be 'freely given when justice so requires' should have been followed — if that were thought a necessary condition to having the claim considered on the merits"). Indeed, American does not oppose permitting Plaintiffs to amend their complaint (ECF No. 13, at 5), and Plaintiffs do have viable claims under the Montreal Convention. Accordingly, the court will grant Plaintiffs leave to file an amended complaint. A determination as to whether the willful misconduct exception applies, however, cannot be made on the current record.

Plaintiffs may assert in their amended complaint that American's conduct was intentional — and, therefore, that the liability limits of the Convention do not apply — but they may not raise claims for punitive or other damages related to non-physical injury. As noted above, Article 29 stipulates that "any action for damages, however founded, . . . can only be brought subject to the conditions and . . . limits of liability as are set out in this Convention," and "[i]n any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable."

IV. Conclusion

For the foregoing reasons, American's motion to dismiss will be granted without prejudice to Plaintiffs' right to amend. A separate order will follow.

CONVENTION FOR THE UNIFICATION OF CERTAIN RULES FOR INTERNATIONAL CARRIAGE BY AIR DONE AT MONTREAL ON 28 MAY 1999

Entry into force: Status: Date of deposit of instrument of ratification, acceptance (A), Date of approval (AA) or Date of entry State signature accession (a) into force Regional Economic Integration Organisations The Convention entered into force on 4 November 2003*. 99 parties. Albania 20/10/04 (a) 19/12/04 Argentina (22) 16/12/09 (a) 14/02/10 Armenia 16/04/10 (a) 15/06/10 Australia 25/11/08 (a) 24/01/09 Austria (10) 29/04/04 (a) 28/06/04 Bahamas 28/05/99 Bahrain 02/02/01(a) 04/11/03 Bangladesh 28/05/99 Barbados 02/01/02 (a) 04/11/03 Belgium (1)(15) 28/05/99 29/04/04 28/06/04 Belize 28/05/99 24/08/99 04/11/03 Benin 28/05/99 30/03/04 29/05/04 Bolivia 28/05/99 Bosnia and Herzegovina 09/03/07 (a) 08/05/07 Botswana 28/03/01 (a) 04/11/03 Brazil 03/08/99 19/05/06 18/07/06 Bulgaria 10/11/03 (a) 09/01/04 Burkina Faso 28/05/99 Cambodia 28/05/99 Cameroon 27/09/01 05/09/03 04/11/03 Canada (6) 01/10/01 19/11/02 04/11/03 Cape Verde 23/08/04 (a) 22/10/04 Central African Republic 25/09/01 Chile (21) 28/05/99 19/03/09 18/05/09 China (18) 28/05/99 01/06/05 31/07/05 Colombia 15/12/99 28/03/03 04/11/03 Cook Islands 22/05/07 (a) 21/07/07 Costa Rica 20/12/99 Côte d'Ivoire 28/05/99 Croatia 23/01/08 (a) 23/03/08 Cuba 28/05/99 14/10/05 13/12/05 Cyprus 20/11/02 (a) 04/11/03 Czech Republic (3) 28/05/99 16/11/00 04/11/03 Denmark (1)(11) 28/05/99 29/04/04 28/06/04 Dominican Republic 28/05/99 21/09/07 20/11/07 Ecuador 27/06/06 (a) 26/08/06 Egypt 24/02/05 (A) 25/04/05 El Salvador 07/11/07 (a) 06/01/08 Estonia 04/02/02 10/04/03 04/11/03 Finland (4) 09/12/99 29/04/04 28/06/04 France (1) 28/05/99 29/04/04 28/06/04 Gabon 28/05/99 Gambia 10/03/04 09/05/04 Georgia 20/12/10 (a) 18/02/11 Germany (1)(12) 28/05/99 29/04/04 28/06/04 Ghana 28/05/99 Greece (1) 28/05/99 22/07/02 04/11/03 Hungary 08/11/04 (a) 07/01/05 Iceland 28/05/99 17/06/04 16/08/04 India 01/05/09 (a) 30/06/09 Ireland (1) 16/08/00 29/04/04 28/06/04 Italy (1) 28/05/99 29/04/04 28/06/04 Jamaica 28/05/99 07/07/09 05/09/09 Japan (8) 20/06/00 (A) 04/11/03 Jordan 05/10/00 12/04/02 04/11/03 Kenya 28/05/99 07/01/02 04/11/03 Kuwait 28/05/99 11/06/02 04/11/03 Latvia 17/12/04 (A) 15/02/05 Lebanon 15/03/05 (a) 14/05/05 Lithuania (17) 28/05/99 30/11/04 29/01/05 Luxembourg (2) 29/02/00 29/04/04 28/06/04 Madagascar 28/05/99 28/12/06 26/02/07 Malaysia (20) 31/12/07 (a) 29/02/08 Maldives 31/10/05 (a) 30/12/05 Mali 16/01/08 (a) 16/03/08 Malta 28/05/99 05/05/04 04/07/04 Mauritius 28/05/99 Mexico 28/05/99 20/11/00 04/11/03 Monaco 28/05/99 18/08/04 17/10/04 Mongolia 05/10/04 (a) 04/12/04 Montenegro (23) 15/01/10 (a) 16/03/10 Morocco 15/04/10 (a) 14/06/10 Mozambique 28/05/99 Namibia 28/05/99 27/09/01 04/11/03 Netherlands (14) 30/12/99 29/04/04 28/06/04 New Zealand (5) 13/07/01 18/11/02 04/11/03 Niger 28/05/99 Nigeria 28/05/99 10/05/02 04/11/03 Norway 29/04/04 (a) 28/06/04 Oman 28/05/07 (a) 27/07/07 Pakistan 28/05/99 19/12/06 17/02/07 Panama 28/05/99 13/09/02 04/11/03 Paraguay 17/03/00 29/03/01 04/11/03 Peru 07/09/99 11/04/02 04/11/03 Poland 28/05/99 17/01/06 18/03/06 Portugal (1) 28/05/99 28/02/03 04/11/03 Qatar (16) 15/11/04 (a) 14/01/05 Republic of Korea 30/10/07 (a) 29/12/07 Republic of Moldova 17/03/09 (a) 16/05/09 Romania 18/11/99 20/03/01 04/11/03 Saint Vincent and the Grenadines 29/03/04 (a) 28/05/04 Saudi Arabia 28/05/99 15/10/03 14/12/03 Senegal 28/05/99 Serbia 03/02/10 (a) 04/04/10 Seychelles 13/09/10 (a) 12/11/10 Singapore (19) 17/09/07 (a) 16/11/07 Slovakia 28/05/99 11/10/00 04/11/03 Slovenia 28/05/99 27/03/02 04/11/03 South Africa 28/05/99 22/11/06 21/01/07 Spain (13) 14/01/00 29/04/04 28/06/04 Sudan 28/05/99 Swaziland 28/05/99 Sweden (1) 27/08/99 29/04/04 28/06/04 Switzerland 28/05/99 07/07/05 05/09/05 Syrian Arab Republic 18/07/02 (a) 04/11/03 The former Yugoslav Republic of Macedonia 15/05/00 (a) 04/11/03 Togo 28/05/99 Tonga 20/11/03 (a) 19/01/04 Turkey 28/05/99 Ukraine 06/03/09 (a) 05/05/09 United Arab Emirates 07/07/00 (a) 04/11/03 United Kingdom (1) 28/05/99 29/04/04 28/06/04 United Republic of Tanzania 11/02/03 (a) 04/11/03 United States (7) 28/05/99 05/09/03 04/11/03 Uruguay 09/06/99 04/02/08 04/04/08 Vanuatu 09/11/05 (a) 08/01/06 Zambia 28/05/99 European Union (9) 09/12/99 29/04/04 (AA) 28/06/04 * As a result of the first review of limits of liability conducted by ICAO in accordance with Article 24, the rounded revised limits, effective as of 30 December 2009, in Special Drawing Rights (SDRs), are: — 19 SDRs per kilogramme in the case of destruction, loss, damage or delay in relation to the carriage of cargo (Article 22, paragraph 3) — 1 131 SDRs for each passenger in case of destruction, loss, damage or delay with respect to baggage (Article 22, paragraph 2) — 4 694 SDRs for each passenger in relation to damage caused by delay in the carriage of persons (Article 22, paragraph 1) — 113 100 SDRs for each passenger for damage sustained in case of death or bodily injury of a passenger (for the first tier) (Article 21, paragraph 1) (1) Upon signature of the Convention, this State, Member State of the European Community, declared that, "in accordance with the Treaty establishing the European Community, the Community has competence to take actions in certain matters governed by the Convention". (2) On 3 October 2000, ICAO received from Luxembourg the following declaration: "The Grand Duchy of Luxembourg, Member State of the European Community, declares that in accordance with the Treaty establishing the European Community, the Community has competence to take actions in certain matters governed by the Convention". (3) Upon deposit of its instrument of ratification, the Czech Republic notified ICAO that "as a Member of the International Monetary Fund, [the Czech Republic] shall proceed in accordance with Article 23, paragraph 1 of the Convention". (4) By a Note dated 13 July 2000, Finland transmitted a declaration dated 7 July 2000 signed by the Minister for Foreign Trade, setting forth the wording quoted in note (1) above. (5) Upon deposit of its instrument of accession (deemed to be an instrument of ratification), New Zealand declared "that this accession shall extend to Tokelau". (6) At the time of ratification, Canada made the following declaration: "Canada declares, in accordance with Article 57 of the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999 and signed by Canada on 1 October 2001, that the Convention does not apply to the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or leased by Canada, the whole capacity of which has been reserved by or on behalf of such authorities [Article 57(b)]." (7) The instrument of ratification of the United States contains the following declaration: "Pursuant to Article 57 of the Convention, the United States of America declares that the Convention shall not apply to international carriage by air performed and operated directly by the United States of America for non-commercial purposes in respect to the functions and duties of the United States of America as a sovereign State." (8) By a Note dated 24 October 2003 signed by the Minister for Foreign Affairs, Japan informed ICAO "that, in accordance with Article 57(a) of the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999, the Government of Japan declares that this Convention shall not apply to international carriage by air performed and operated directly by the Government of Japan for non-commercial purposes in respect to its functions and duties as a sovereign State." (9) On 9 February 2010, the Council of the European Union deposited with ICAO a note verbale referring to the entry into force, on 1 December 2009, of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, and stating: "As a consequence, as from 1 December 2009, the European Union has replaced and succeeded the European Community . . . and has exercised all rights and assumed all obligations of the European Community whilst continuing to exercise existing rights and assume obligations of the European Union." The note further states "that, as from 1 December 2009, the European Community has been replaced and succeeded by the European Union in respect of the Convention for the Unification of Certain Rules for International Carriage by Air for which the International Civil Aviation Organization is the depositary and to which the European Community, replaced from 1 December 2009 by the European Union, is a contracting party." The instrument of approval by the European Community deposited on 29 April 2004 contains the following declaration: "Declaration concerning the competence of the European Community with regard to matters governed by the Convention of 28 May 1999 for the unification of certain rules for international carriage by air (the Montreal Convention): 1. The Montreal Convention provides that Regional Economic Integration Organisations constituted by sovereign States of a given region, which have competence in respect of certain matters governed by this Convention, may become parties to it. 2. The current Member States of the European Community are the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland. 3. This declaration is not applicable to the territories of the Member States in which the Treaty establishing the European Community does not apply and is without prejudice to such acts or positions as may be adopted under the Convention by the Member States concerned on behalf of and in the interests of those territories. 4. In respect of matters covered by the Convention, the Member States of the European Community have transferred competence to the Community for liability for damage sustained in case of death or injury of passenger. The Member States have also transferred competence for liability for damage caused by delay and in the case of destruction, loss, damage or delay in the carriage of baggage. This includes requirements on passenger information and a minimum insurance requirement. Hence, in this field, it is for the Community to adopt the relevant rules and regulations (which the Member States enforce) and within its competence to enter into external undertakings with third States or competent organisations*. 5. The exercise of competence which the Member States have transferred to the Community pursuant to the EC Treaty is, by its nature, liable to continuous development. In the framework of the Treaty, the competent institutions may take decisions which determine the extent of the competence of the European Community. The European Community therefore reserves the right to amend the present declaration accordingly, without this constituting a prerequisite for the exercise of its competence with regard to matters governed by the Montreal Convention. ______________ *Sources: 1) Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents, Official Journal of the European Union, L 285, 17.10.1997, p. 1; 2) Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002 amending Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents, Official Journal of the European Union, L 140, 30.05.2002, p. 2." (10) The instrument of accession by Austria contains the following declaration: "The Republic of Austria declares according to Article 57 of the Convention for the Unification of Certain Rules for International Carriage by Air of 28 May 1999 that this Convention shall not apply to: a) international carriage by air performed and operated directly by the Republic of Austria for non-commercial purposes in respect to its functions and duties as a sovereign State; b) the carriage of persons, cargo and baggage for the military authorities on aircraft registered in or leased by the Republic of Austria, the whole capacity of which has been reserved on behalf of such authorities." (11) The instrument of ratification by Denmark contains a declaration that until later decision, the Convention will not be applied to the Faroe Islands. (12) The instrument of ratification by Germany was accompanied by the following declaration: "In accordance with Article 57 of the Convention of for the Unification of Certain Rules for International Carriage by Air of 28 May 1999, the Federal Republic of Germany declares that the Convention shall not apply to international carriage by air performed and operated directly by the Federal Republic of Germany for non-commercial purposes in respect to its functions and duties as a sovereign State or to the carriage of persons, cargo and baggage for the military authorities of the Federal Republic of Germany on aircraft registered in or leased by the Federal Republic of Germany, the whole capacity of which has been reserved by or on behalf of such authorities." (13) The instrument of ratification by Spain contains the following declarations: "The Kingdom of Spain, Member State of the European Community, declares that in accordance with the Treaty establishing the European Community, the Community has competence to take actions in certain matters governed by the Convention." "In accordance with the provisions of Article 57, the Convention shall not apply to: a) international carriage by air performed and operated directly by Spain for non-commercial purposes in respect to its functions and duties as a sovereign State; b) the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or leased by Spain, the whole capacity of which has been reserved by or on behalf of such authorities." (14) The instrument of ratification by the Kingdom of the Netherlands states that the ratification is for the Kingdom in Europe. By a Note dated 29 April 2004 from the Ministry of Foreign Affairs, the Netherlands transmitted to ICAO the following declaration: "The Kingdom of the Netherlands, Member State of the European Community, declares that in accordance with the Treaty establishing the European Community, the Community has competence to take actions in certain matters governed by the Convention". (15) By a Note dated 15 July 2004 from the Minister of Foreign Affairs, Belgium transmitted to ICAO the following declaration in accordance with Article 57: "the Convention does not apply to: a) international carriage by air performed and operated directly by Belgium for non-commercial purposes in respect to its functions and duties as a sovereign State; b) the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or leased by Belgium, the whole capacity of which has been reserved by or on behalf of such authorities." (16) In its instrument of accession, Qatar confirmed the application of the following declaration in accordance with Article 57: "the Convention does not apply to: a) international carriage by air performed and operated directly by that State Party for non-commercial purposes in respect to its functions and duties as a sovereign State, and/or b) the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or leased by that State Party, the whole capacity of which has been reserved by or on behalf of such authorities." (17) The instrument of ratification by Lithuania contains the following declarations: ". . . in accordance with Article 57 . . ., the Seimas of the Republic of Lithuania declares that this Convention shall not apply to international carriage by air performed and operated directly by the Republic of Lithuania for non-commercial purposes in respect to its functions and duties as a sovereign State; and also shall not apply to the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or leased by the Republic of Lithuania, the whole capacity of which has been reserved by or on behalf of such authorities." ". . . in accordance with the Treaty establishing the European Community, the Seimas of the Republic of Lithuania declares that the Community has competence to take actions in certain matters governed by the Convention." (18) (A) The instrument of ratification by China contains the following declaration: "The Convention does not apply in the Hong Kong Special Administrative Region of the People's Republic of China until notified otherwise by the Government of the People's Republic of China." (B) In addition, the Representative of China on the Council of ICAO made the following declaration at the time of deposit of the instrument of ratification: "The Convention applies in the Macao Special Administrative Region of the People's Republic of China." (C) By a letter dated 20 October 2006, the Representative of China on the Council of ICAO made the following statement on behalf of the Government of the People's Republic of China (PRC): "Article 153 of the Basic Law of the Hong Kong Special Administrative Region of the PRC provides that the application to the Hong Kong Special Administrative Region of the PRC of international agreements to which the PRC is or becomes a party shall be decided by the Central People's Government in accordance with the circumstances and needs of the Region and after seeking the views of the Government of the Region. In consultation with the Government of the Hong Kong Special Administrative Region, the Government of the PRC has decided to apply the Convention in the Hong Kong Special Administrative Region of the PRC from the date of December 15, 2006." (19) The instrument of accession by Singapore contains the following declaration in accordance with Article 57: "the Convention shall not apply to: a) international carriage by air performed and operated directly by the Republic of Singapore for non-commercial purposes in respect to its functions and duties as a sovereign State; and b) the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or leased by the Republic of Singapore, the whole capacity of which has been reserved by or on behalf of such authorities." (20) The instrument of accession by Malaysia is accompanied by the following reservation: "Malaysia, in accordance with Article 57 (b) of the Montreal Convention, declares that the Convention shall not apply to the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or leased by Malaysia, the whole capacity of which has been reserved by or on behalf of such authorities." (21) The instrument of ratification by Chile contains the following reservation in accordance with Article 57 (b): "The Republic of Chile declares that the Convention shall not apply to the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or leased by that State Party, the whole capacity of which has been reserved by or on behalf of such authorities." (22) The instrument of accession by Argentina contains the following "interpretative declaration": "For the Argentine Republic, the term 'bodily injury' in Article 17 of this treaty includes mental injury related to bodily injury, or any other mental injury which affects the passenger's health in such a serious and harmful way that his or her ability to perform everyday tasks is significantly impaired." (23) The instrument of accession by Montenegro contains the following reservation in accordance with Article 57: "this Convention shall not apply to: a) international carriage by air performed and operated directly by Montenegro for non-commercial purposes in respect to its functions and duties as a sovereign State; b) the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or leased by Montenegro, the whole capacity of which has been reserved by or on behalf of such authorities."