United States Court of Appeals
For the First Circuit
No. 05-1699
MICHEL ACEVEDO-REINOSO,
Plaintiff, Appellant,
MARÍA T. PACHECO-GONZÁLEZ
Plaintiff,
v.
IBERIA LÍNEAS AÉREAS DE ESPAÑA S.A.; JANE DOE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Lipez, and Howard, Circuit Judges.
Alfredo Fernández-Martínez, with whom Delgado & Fernández, LLP
was on brief, for appellant Michel Acevedo-Reinoso.
Juan R. Marchand-Quintero, with whom Francisco Ortiz-Santini
was on brief, for appellee.
May 23, 2006
LIPEZ, Circuit Judge. This case requires us to decide
whether a passenger's state tort claim against an international air
carrier was preempted by the Warsaw Convention1 and therefore
properly dismissed by the district court. For the reasons set
forth below, we vacate the district court's judgment granting the
motion to dismiss and remand for further proceedings consistent
with this opinion.
I.
The following facts are drawn from the complaint. Michel
Acevedo-Reinoso is a citizen of Cuba with legal residence in the
United States. At the time of this action, Acevedo-Reinoso resided
in Puerto Rico. In October 2002, Acevedo-Reinoso, a banking
executive, was invited to participate in an annual convention
hosted by the Mortgage Loan Officers Association ("Association") in
Madrid, Spain. The Association contracted with a travel agency,
The Travel Place, to coordinate all travel arrangements for
attendees to the convention. The Travel Place assured Acevedo-
Reinoso that he would not require a visa, and instead need only
show his Cuban passport and U.S. resident alien card upon entry to
Spain. On November 13, 2002, Acevedo-Reinoso and his partner,
Maria Pacheco-Gonzalez, a U.S. citizen (collectively,
1
The Convention for the Unification of Certain Rules Relating to
International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000,
3014, T.S. 876 (1934), note following 49 U.S.C. § 40105
[hereinafter "Warsaw Convention" or "Convention"].
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"Plaintiffs"), arrived at the Iberia Líneas Aéreas Españolas, S.A.
("Iberia") airline counter in Puerto Rico to check in. The Iberia
agent informed Acevedo-Reinoso and Pacheco-Gonzalez that all
immigration documents were in place and gave them their tickets and
boarding passes.
Upon arriving in Spain on November 14, 2002, a Spanish
immigration officer requested passports from all passengers. When
Acevedo-Reinoso showed his Cuban passport, the Spanish government
ordered his immediate detention. Acevedo-Reinoso was questioned,
represented by counsel appointed by the Spanish government, and
detained with other allegedly illegal immigrants in a closed room
in the airport. Meanwhile, Pacheco-Gonzalez suffered great anguish
at seeing her partner detained in front of his peers in the banking
industry, mocked by Spanish immigration officers, and humiliated.
Acevedo-Reinoso's appointed counsel provided him with several
documents for his review. At the behest of a Spanish officer who
told him the documents were for his own benefit, Acevedo-Reinoso
signed the documents without reading them, and was subsequently
told that he would be deported to his country of origin – Cuba.
Acevedo-Reinoso suffered great anguish thinking about the
punishment he would face at the hands of Cuban authorities upon
returning to a country he was forced to leave many years ago, and
the suffering – financial and otherwise – of his partner and two
children who would be forced to live without him in Puerto Rico.
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Later that evening, Acevedo-Reinoso was taken to another
room where he was strip-searched and humiliated by a female Spanish
officer. He was then taken to a detention room with hundreds of
allegedly illegal immigrants, where he was served his first meal of
the day and was ordered to pass the night in a cold room that
included a row of bunk beds without sheets or blankets. During
this time, Acevedo-Reinoso observed Spanish officers beating a
young adolescent from Ecuador who stood up to visit the restroom.
The following morning, after speaking with Pacheco-Gonzalez about
a letter she had obtained from the General Manager of the hotel in
Spain assuming responsibility for him during his stay, Acevedo-
Reinoso inquired whether he could be sent back to Puerto Rico.
Spanish officers declined to accept this proposition. Pacheco-
Gonzalez was extremely nervous about her partner's future and the
well-being of herself and her children. The following day,
Acevedo-Reinoso was escorted by several Spanish guards to an Iberia
airplane bound for San Juan, Puerto Rico, detained until airline
crew boarded the airplane, and thereafter released.
As a result of the humiliation, emotional distress, and
mental anguish they experienced, Plaintiffs sued Iberia, a foreign
entity, in federal court, alleging negligence under Puerto Rico
law.2 On February 25, 2003, Iberia brought a motion to dismiss for
2
Plaintiffs also sued The Travel Place and its owner in the
Superior Court of Puerto Rico.
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failure to join as indispensable parties The Travel Company and its
owner. That motion was denied. Iberia then filed its answer to
Plaintiffs' complaint. After discovery and the entry of a pretrial
order, Iberia filed a second motion to dismiss, based on
Plaintiffs' failure to state a claim under the Convention, and, in
the alternative, under Puerto Rico law. The district court
dismissed Plaintiffs' action for failure to state a claim under the
Convention. Acevedo-Reinoso appealed.3
II.
We review the district court's grant of Iberia's motion
to dismiss de novo. See SFW Arecibo, Ltd. v. Rodríguez, 415 F.3d
135, 138 (1st Cir. 2005). To that end, we accept as true the
well-pleaded factual allegations of the complaint, drawing all
reasonable inferences in favor of the non-movant, Acevedo-Reinoso.
See id. at 138-39. "Our goal is to determine whether the
complaint, so read, alleges facts sufficient to make out a
cognizable claim. In so doing, we are free to affirm on any basis
supported by the record." Carroll v. Xerox Corp., 294 F.3d 231,
241 (1st Cir. 2002) (internal citations and quotation marks
omitted).
3
Pacheco-Gonzalez did not join this appeal.
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A. Applicability of the Warsaw Convention
1. The Warsaw Convention
The Convention, as amended by the Montreal Agreement,4
governs the liability of international air carriers for "passenger
injuries occurring 'on board the aircraft or in the course of any
of the operations of embarking or disembarking.'"5 El Al Israel
Airlines, 525 U.S. at 172 (quoting Convention art. 17); see
Langadinos v. American Airlines, Inc., 199 F.3d 68, 70 (1st Cir.
2000). The Convention is preemptive: a carrier is not subject to
liability under local law for passenger injuries "covered by" the
4
While "[t]he United States initially adhered to the Warsaw
Convention on October 29, 1934," McCarthy v. Northwest Airlines,
Inc., 56 F.3d 313, 316 n.2 (1st Cir. 1995), all references to the
Convention herein are to that document as modified by Montreal
Protocol No. 4. Montreal Protocol No. 4 to Amend the Convention
for the Unification of Certain Rules Relating to International
Carriage by Air, Signed at Warsaw on Oct. 12, 1929, as amended by
the Protocol Done at the Hague on Sept. 8, 1955 [hereinafter
Protocol No. 4] reprinted in S. Exec. Rep. No. 105-20, pp. 21-32
(1998). This protocol, "ratified by the Senate on September 28,
1998, amends Article 24 [of the Convention] to read, in relevant
part: 'In the carriage of passengers and baggage, any action for
damages, however founded, can only be brought subject to the
conditions and limits set out in this Convention . . . .'" El Al
Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 174 (1999)
(quoting Convention art. 24, as amended by Montreal Protocol No.
4).
5
Article 17 of the Convention states, in relevant part, that
[t]he carrier shall be liable for damage sustained in the
event of the death or wounding of a passenger or any
other bodily injury suffered by a passenger, if the
accident which caused the damage so sustained took place
on board the aircraft or in the course of any of the
operations of embarking or disembarking.
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Convention, that is, "all personal injury cases stemming from
occurrences on board an aircraft or in embarking or disembarking."
El Al Israel Airlines, 525 U.S. at 168 (adopting Government's
construction of Convention); see also Convention art. 24 (stating
that in personal injury cases "covered by" the Convention, "any
action for damages, however founded, can only be brought subject to
the conditions and limits set out in this convention"6). The
corollary is also true:
the 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.
El Al Israel Airlines, 525 U.S. at 172 (internal citations and
quotation marks omitted); see also Commercial Union Ins. Co. v.
Alitalia Airlines, S.p.A., 347 F.3d 448, 456 (2d Cir. 2003) ("As a
treaty adhered to by the United States, it is the supreme law of
the land and trumps local law when it applies.") (emphasis added).
"Treaty interpretation," we have noted, "is a purely
legal exercise." McCarthy, 56 F.3d at 317 (interpreting meaning of
"embarking" and "disembarking" under Convention). Therefore, the
question [of] whether a passenger's injury was sustained "on board
6
Article 24 of the Convention states that "[i]n the cases covered
by article 17 [i.e., personal injury cases]," Convention art.
24(2), "any action for damages, however founded, can only be
brought subject to the conditions and limits set out in this
convention," Convention art. 24(1).
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the aircraft or in the course of any of the operations of embarking
or disembarking," Convention art. 17, "is a question of law to be
decided by the court" based on the facts of each case, Marotte v.
American Airlines, Inc., 296 F.3d 1255, 1259 (11th Cir. 2002). See
also Schmidkunz v. Scandinavian Airlines Sys., 628 F.2d 1205, 1207
(9th Cir. 1980) (same). Since "[t]he terms 'embarking' and
'disembarking' are not specifically defined in the Convention,"
Marotte, 296 F.3d at 1259, and absent some direction from the
Supreme Court, which has not yet had occasion to define them, we
have found "(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 . . . highly relevant in
determining the applicability of [the Convention]." McCarthy, 56
F.3d at 317.
If the Convention applies (and local law is thereby
preempted), the next question is whether the carrier is liable
under the Convention. This inquiry involves a determination of
whether there was an "accident," i.e., "an unexpected or unusual
event or happening that is external to the passenger," Air France
v. Saks, 470 U.S. 392, 405 (1985); whether the passenger suffered
a compensable injury, i.e., "death, physical injury, or physical
manifestation of injury," Eastern Airlines, Inc. v. Floyd, 499 U.S.
530, 552 (1991); and whether the accident was a proximate cause of
the passenger's injury, see Langadinos, 199 F.3d at 71.
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2. The District Court Proceeding
The district court held that Plaintiffs' Puerto Rico tort
claim was preempted by the Convention because Plaintiffs failed to
state a claim for liability under the Convention. According to the
district court, "plaintiffs may not sue a carrier pursuant to state
law if they are barred from recovering under the convention." The
district court noted that Plaintiffs did not allege that "they
suffered death, physical injury or physical manifestation of an
injury" – one of the requirements for proving liability under the
Convention.7 Rather, Plaintiffs alleged only "humiliation,
embarrassment, and great anguish" – none of which is compensable
under the Convention. Since Plaintiffs were barred from recovering
under the Convention, the court held that their claim under Puerto
Rico law was likewise barred.
3. Application of the Warsaw Convention
Echoing the district court, Iberia notes that since
"[t]he Warsaw Convention's dispositions provide the exclusive
source of an airline's liability in international flights claims,"
Acevedo-Reinoso's claim falls short because he does not allege any
physical injury or an "accident." Acevedo-Reinoso, on the other
hand, argues that the court erroneously assumed the Convention's
7
The district court noted that since Plaintiffs' claim failed to
satisfy the injury requirement for liability under the Convention,
the court did not need to decide whether Plaintiffs' claim
satisfied the "accident" requirement for liability – i.e., whether
Plaintiffs alleged that their injury resulted from an unexpected or
unusual event or happening external to the passenger.
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applicability without resolving the threshold issue of whether his
injuries were "sustained . . . on board the aircraft or in the
course of any of the operations of embarking or disembarking."8
Convention art. 17. According to Acevedo-Reinoso, the Convention
does not apply – and his Puerto Rico tort claim is therefore not
preempted – because he was not embarking or disembarking when he
sustained his injuries. Rather, Acevedo-Reinoso argues, his
injuries were sustained "in Spain in a detention jail and [in] . .
. being deported back to Puerto Rico in front of all the members of
the Association."
We agree with Acevedo-Reinoso that the district court
erroneously conflated the applicability of the Convention with
liability under the Convention. The Convention's applicability
rests on a determination of whether the passenger's injury occurred
"on board the aircraft or in the course of any of the operations of
embarking or disembarking." Convention art. 17. If 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. See El Al Israel, 525 U.S. at 161 ("[R]ecovery for a
8
Acevedo-Reinoso also argues that the district court should never
have reached the merits of Iberia's second motion to dismiss
invoking the applicability of the Convention. According to
Acevedo-Reinoso, Iberia waived the arguments raised in the second
motion to dismiss by not asserting them earlier in the proceedings.
We are unpersuaded by this argument but see no need to discuss it
in any detail since we decide this appeal in Acevedo-Reinoso's
favor on the merits.
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personal injury 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.") (internal citation and
quotation marks omitted); see id. at 174 ("[I]n all questions
relating to the carrier's liability, it is the provisions of the
[C]onvention which apply and [] the passenger does not have access
to any other remedies, whether under the common law or otherwise,
which may be available within the particular country where he
chooses to raise his action." (quoting Sidhu v. British Airways
plc, [1997] 1 All E. R., 193 at 201, 207)). If the Convention is
not applicable, it is not preemptive, and the passenger is free to
pursue his or her claim under local law. Id. at 171-72 ("[T]he
Convention addresses and concerns, only and exclusively, the
airline's liability for passenger injuries occurring 'on board the
aircraft or in the course of any of the operations of embarking or
disembarking.'" (quoting Convention art. 17)).
Here, the district court assumed the applicability of the
Convention, stating that "pursuant to El Al Israel, plaintiffs'
only basis of redress is the Convention's passenger liability
provision." But El Al Israel does not support such an assumption.
In that case, applicability of the Convention was not at issue
because the parties explicitly agreed that "the episode-in-suit
occurred in international transportation in the course of
embarking." El Al Israel, 525 U.S. at 167. In this case, by
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contrast, the parties dispute whether Acevedo-Reinoso's damages
were sustained "in the course of any of the operations of embarking
or disembarking," and, thus, whether the Convention is applicable.
Acevedo-Reinoso argues that Iberia's failure to advise
him at the ticket counter of the need for a visa to enter Spain
preceded his boarding the plane, and that his subsequent arrest
upon arrival in Spain came well after he disembarked from the
plane. Iberia, on the other hand, contends that its alleged
failure to warn Acevedo-Reinoso at the airport in Puerto Rico and
his ensuing arrest in Spain took place during the process of
embarking and disembarking, respectively. Because the district
court did not address this dispute, there was never any
determination that the Convention was applicable and therefore
preemptive of Acevedo-Reinoso's claim. See Marotte, 296 F.3d at
1260-61 (holding that the Convention preempted plaintiffs' state
law claims where plaintiffs' injuries "occurred in the process of
embarking, as contemplated by the Warsaw Convention"); see also
McCarthy, 56 F.3d at 317 (holding that plaintiff was not engaged in
the course of "embarking" under the Convention, based on "(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"). The district
court therefore erred in dismissing Acevedo-Reinoso's claim under
the Convention without first determining whether Acevedo-Reinoso's
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injury occurred on board the airplane or in the process of
embarking or disembarking.
B. Liability Under Puerto Rico Law
Even if the Convention is not applicable and therefore
not preemptive, Iberia asks us to affirm on a different basis,
arguing that the motion to dismiss was properly granted because
Acevedo-Reinoso does not state a claim under Puerto Rico law.
1. Contract Claim
Iberia contends that while Acevedo-Reinoso characterizes
his claim as sounding only in tort, his claim also sounds in
contract, based on the allegation in the complaint that Iberia
"breached its contract to travel with Acevedo."9 Iberia further
argues that, as between these two sources of law, "in Puerto Rico
contractual law [] control[s] the scenario depicted in the
complaint. As a result, Acevedo cannot resort to general
principles of tort law but must submit [himself] to the provisions
applicable to contracts." Furthermore, because "the parties did
not contract for Iberia to assume the duty of verifying that
Acevedo's papers were in order for entering Spain, a task that was
Acevedo's personal obligation to comply with," Iberia argues that
Acevedo-Reinoso's claim fails to state a claim for breach of
9
According to Iberia, "[t]he well-pleaded allegations []form a
basic contract: Acevedo would pay a specific monetary amount to
Iberia, in exchange for safe transportation to Madrid, Spain."
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contract under Article 1054 of the Civil Code of Puerto Rico, P.R.
Laws Ann., Tit. 31, § 3018.10
Aside from language in the complaint briefly alluding to
a contractual claim, Acevedo-Reinoso nowhere argues that Iberia
breached a contract. On the contrary, Acevedo-Reinoso asserts that
his claim "is without a doubt one in tort," and states in the
complaint that his state law claims are "based on Article 1802 of
the Civil Code of Puerto Rico" – the Puerto Rico statute governing
tort claims, P.R. Laws Ann., Tit. 31, § 5141.11 Nevertheless, even
if we assume that Acevedo-Reinoso's claim sounds in both tort and
contract, it does not follow that Puerto Rico contract law provides
the remedy. In fact, the opposite is true: where the event that
caused the damage results from the breach of both a contractual
10
Article 1054 states, in relevant part, that
those who in any manner whatsoever act in contravention
of the stipulations of [their contractual obligations],
shall be subject to indemnify for the losses and damages
caused thereby.
P.R. Laws Ann., Tit. 31, § 3018; see also P.R. Laws Ann., Tit. 31,
§ 2994 ("Obligations arising from contracts have legal force
between the contracting parties, and must be fulfilled in
accordance with their stipulations.").
11
Article 1802 states in relevant part that
[a] person who by an act or omission causes damage to
another through fault or negligence shall be obliged to
repair the damage so done.
P.R. Laws Ann., Tit. 31, § 5141.
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obligation as well as a noncontractual duty not to cause harm to
another, Puerto Rico law holds that an action for damages for
breach of contract does not lie. According to the Puerto Rico
Supreme Court:
an action for damages for breach of contract [Article
1054] only lies when the damage suffered exclusively
arises as a consequence of the breach of an obligation
specifically agreed upon, which damage would not occur
without the existence of a contract. However . . . a
claim for noncontractual damages resulting from the
breach of a contract lies if the act that caused the
damage constitutes a breach of the general duty not to
injure anyone and, at the same time, a breach of
contract.
Ramos Lozada v. Orientalist Rattan Furniture, Inc., 130 P.R. Dec.
712, 727, 1992 P.R.-Eng. 755597 (P.R. 1992) (emphasis added).
Iberia's argument regarding the application of Puerto Rico contract
law is therefore unavailing.
2. Tort Claim
Iberia argues that even if Puerto Rico tort law applies
to Acevedo-Reinoso's claim, his claim should still be dismissed.
By contrast, Acevedo-Reinoso argues that the complaint adequately
states a claim for negligence. We agree with Acevedo-Reinoso.
Puerto Rico tort law "imposes responsibility for damages caused by
negligence or fault. The necessary elements to prevail in [such a]
tort action are: (1) a negligent act or omission, (2) damages, and
(3) a causal relationship between them." Irvine, IRG v. Murad Skin
Research Labs., Inc., 194 F.3d 313, 321-22 (1st Cir. 1999). The
complaint alleges facts addressing each of these elements, stating
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that Iberia's negligent acts or omissions – i.e., its "fail[ure] to
advise [Acevedo-Reinoso] that he needed a visa in order to enter
Spain" – caused Acevedo-Reinoso to be "detained by Spanish
authorities in Spain, humiliated in front of his peers from the
banking industry, and subjected to extensive mental anguish and
sufferings."
Iberia's argument that an air carrier has no duty to
advise passengers under Puerto Rico law is foreclosed by our
decision in Compagnie Nationale Air France v. Castano, 358 F.2d 203
(1st Cir. 1966). In that case, three passengers and a relative
sued an air carrier under Puerto Rico tort law for failing to
advise them that they needed visas to enter Spain. We opined that
the Puerto Rico court would . . . hold [that] where there
was evidence that the defendant, as an inducement to
plaintiffs to purchase passage, had held itself out as a
tourist or travel agency, and had negligently failed to
provide the information that plaintiffs had reasonably
been led to expect, [] damages for negligence would
include . . . proximate, though unforeseeable, injury of
any sort.
Id. at 209. Applying this reasoning to the facts of that case, we
held that "the unforseen suffering occasioned by defendant's
failure to perform of the type here claimed can be compensated."
Id. We noted, however, that "there was a substantial factual issue
whether this damage was proximate, and whether the plaintiff or
plaintiffs reasonably attempted to mitigate the damages." Id.
Here, Acevedo-Reinoso claims that he was injured by the
failure of an air carrier to advise him that he needed a visa to
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enter Spain. The facts alleged by Acevedo-Reinoso in this case are
nearly identical to those alleged by the passengers in Castano, and
thus are sufficient to state a claim for the negligent failure to
advise under Puerto Rico tort law.12
III.
In summary, we hold that the district court erred in
granting Iberia's motion to dismiss based on the preemptive effect
of the Convention, without first determining whether the Convention
in fact applied to this case. On remand, the district court must
determine whether Acevedo-Reinoso's injury occurred "in the course
of any of the operations of embarking or disembarking." If the
district court answers this question in the affirmative, the
Convention will apply and will preempt Acevedo-Reinoso's Puerto
Rico tort claim, thus limiting his claim to one that meets the
12
Iberia's attempts to distinguish this case from Castano are
unavailing. While Castano did not discuss the applicability of the
Convention, our determination that Acevedo-Reinoso states a claim
under Puerto Rico tort law does not depend on the applicability of
the Convention. In fact, Acevedo-Reinoso's tort claim has effect
only to the extent that the Convention does not apply (and does not
preempt the tort claim). In addition, while we vacated three of
the verdicts in Castano (and dismissed the fourth) and remanded for
a new trial, the lack of a final disposition in that case does not
render our holding under Puerto Rico law any less binding. See
Room v. Caribe Hilton Hotel, 659 F.2d 5, 8 n.3 (1st Cir. 1981)
(relying on Castano for proposition that "[u]nder Puerto Rico law
a plaintiff may recover damages for mental suffering"). Finally,
while it may be that "Iberia was in no position to induce Acevedo
to purchase passage" and did not hold itself out "as a tourist or
travel agency," these issues await further factual development at
summary judgment or trial. At this stage in the proceedings, for
the reasons discussed above, Acevedo-Reinoso has alleged sufficient
facts to overcome Iberia's motion to dismiss.
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requirements of the Convention. If, on the other hand, the
district court answers this question in the negative, the
Convention will have no application and this case will go forward
on the elements of the tort claim set forth under Puerto Rico tort
law. We vacate the district court's judgment granting Iberia's
motion to dismiss and remand for further proceedings consistent
with this opinion. Costs of appeal are awarded to appellant.
So ordered.
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