Narayanan Ex Rel. Narayanan v. British Airways

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SUSHEELA NARAYANAN, No. 11-55870
individually and as Successor-in-
interest to Papanasam Narayanan, D.C. No.
deceased, on behalf of the Heirs and 2:11-cv-02175-
Estate of Papanasam Narayanan; JFW-CW
TARA CASTRO NARAYANAN; RANJIT
NARAYANAN,
Plaintiffs-Appellants, OPINION

v.

BRITISH AIRWAYS,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding

Argued and Submitted
February 4, 2013—Pasadena, California

Filed March 19, 2014

Before: Harry Pregerson, William A. Fletcher, and
Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Nguyen;
Dissent by Judge Pregerson
2 NARAYANAN V. BRITISH AIRWAYS

SUMMARY*

Montreal Convention

The panel affirmed the district court’s dismissal as
untimely of an action for damages under the Montreal
Convention.

The complaint alleged that the denial of oxygen aboard an
international flight hastened a passenger’s death. The panel
held that the two-year limitations period set forth in Article
35(1) of the Convention applied to the complaint, which was
filed more than two years after the flight but within two years
of the passenger’s death. The panel held that under its plain
language, Article 35(1) applies irrespective of when a claim
actually accrues.

Dissenting, Judge Pregerson wrote that the Montreal
Convention’s rigid statute of limitations protects international
airline carriers at the expense of their passengers.

COUNSEL

Gerald C. Sterns (argued), Sterns & Walker, Oakland,
California; Fred M. Isaacs, Lake Oswego, Oregon, for
Plaintiffs-Appellants.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 NARAYANAN V. BRITISH AIRWAYS 3

Scott D. Cunningham (argued) and Natasha N. Mikha,
Condon & Forsyth LLP, Los Angeles, California, for
Defendant-Appellee.

OPINION

NGUYEN, Circuit Judge:

Panansam Narayanan (“Narayanan”) suffered from an
advanced-stage lung disease. While aboard a British Airways
international flight, he was allegedly denied supplemental
oxygen. Narayanan died six months after the plane landed.
Plaintiffs, Narayanan’s heirs and estate, filed this lawsuit
under the Montreal Convention (the “Convention”), alleging
that the denial of oxygen hastened Narayanan’s death. The
action was filed on March 7, 2011—more than two years
from the date of the flight’s arrival, but within two years of
Narayanan’s death.

The district court dismissed the complaint as untimely
because Article 35(1) of the Convention requires a claim for
damages under the Convention to be filed within two years of
the date upon which the aircraft arrived, or ought to have
arrived, at its destination. In an issue of first impression in
our circuit, we must decide whether Article 35(1)’s strictures
apply equally to a claim which had not yet accrued at the time
that the Convention’s two-year limitations period was
triggered. We hold that, under the plain language of the
Convention, the answer is yes. Therefore, Plaintiffs’ claim
was untimely.
4 NARAYANAN V. BRITISH AIRWAYS

Background

On December 26, 2008, Narayanan boarded a British
Airways flight from Los Angeles, California, to Bangalore,
India, with an intermediate stop in London, England.
Narayanan, who suffered from an advanced-stage, terminal
lung disease, required supplemental oxygen during the flight.1
Having been advised of his condition prior to boarding,
British Airways assured Narayanan that he would have access
to his supplemental oxygen. However, during the flight from
Los Angeles to London, British Airways denied Narayanan
access to this oxygen. Upon arriving in London, Narayanan
sought medical attention and was cleared to continue onto
Bangalore. He received further medical treatment in India, as
well as in the United States following his return on January
16, 2009. However, his health continued to deteriorate and,
on June 11, 2009, Narayanan died.

On March 7, 2011, Narayanan’s widow and two adult
children filed a claim against British Airways under Article
17(1) of the Convention, alleging that the denial of
supplemental oxygen on his flight to London hastened
Narayanan’s death. They sought general, special, and
survival damages for this claim.

British Airways removed the case to federal court and
moved to dismiss under Federal Rule of Civil Procedure
12(b)(6), arguing that the complaint was time-barred under

1
This appeal arises from a dismissal under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Accordingly, all factual allegations set forth in
the complaint are taken as true and construed in the light most favorable
to Plaintiffs. See Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir.
2001).
 NARAYANAN V. BRITISH AIRWAYS 5

the two-year limitation period established by Article 35(1) of
the Convention because the flight at issue arrived on
December 26, 2008, and the complaint was not filed until
March 7, 2011. The district court agreed and dismissed the
complaint with prejudice. This appeal followed.

Standard of Review

We review de novo the district court’s grant of a motion
to dismiss under Rule 12(b)(6), accepting all factual
allegations in the complaint as true and construing them in
the light most favorable to the nonmoving party. Newdow v.
Lefevre, 598 F.3d 638, 642 (9th Cir. 2010).

Discussion

A

The Convention, which governs “all international carriage
of persons, baggage or cargo performed by aircraft for
reward,” provides the exclusive remedy for international
passengers seeking damages against airline carriers.
Convention for the Unification of Certain Rules for
International Carriage by Air art. 1(1), May 28, 1999, S.
Treaty Doc. No. 106-45 (hereinafter “Montreal
Convention”).2 In interpreting this Convention, we begin by

2
The Montreal Convention is the successor to the Warsaw Convention
of 1929. See Convention for the Unification of Certain Rules Relating to
International Transportation by Air, October 12, 1929, 49 Stat. 3000, 137
L.N.T.S. 11 (hereinafter “Warsaw Convention”). 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 intercarrier agreements of which the Warsaw Convention
system of liability consists.” Sompo Japan Ins., Inc. v. Nippon Cargo
6 NARAYANAN V. BRITISH AIRWAYS

looking to its text. Medellin v. Texas, 552 U.S. 491, 506
(2008).

Article 17(1) of the Convention provides that a carrier is
“liable for damage sustained in case of death or bodily injury
of a passenger upon condition only that the accident which
caused the death or injury took place on board the aircraft or
in the course of any of the operations of embarking or
disembarking.” Montreal Convention art. 17(1). We have
defined an “accident” for purposes of Article 17 as “an
unexpected or unusual event or happening that is external to
the passenger.” Phifer, 652 F.3d at 1223 (quoting Air France
v. Saks, 470 U.S. 392, 405 (1985)). The parties do not
dispute that British Airways’ alleged failure to provide
Narayanan supplemental oxygen was an “accident” within the
meaning of Article 17.

Article 29 sets forth limits on such claims, however,
providing that:

any action for damages, however founded,
whether under this Convention or in contract

Airlines Co., 522 F.3d 776, 780 (7th Cir. 2008) (internal quotation marks
and citation omitted).

Although designed to replace the Warsaw Convention, the Montreal
Convention incorporates many of its substantive provisions. See Montreal
Convention art. 55; see also Ehrlich v. Am. Airlines, 360 F.3d 366, 371–73
(2d Cir. 2004). Accordingly, in interpreting the Montreal Convention,
courts have routinely relied upon Warsaw Convention precedent where the
equivalent provision in the Montreal Convention is substantively the
same. See, e.g., Phifer v. Icelandair, 652 F.3d 1222, 1224 n.1 (9th Cir.
2011); see also Baah v. Virgin Atl. Airways Ltd., 473 F. Supp. 2d 591,
595–96 (S.D.N.Y. 2007) (citing legislative and executive statements
indicative of intent to preserve Warsaw Convention precedent).
 NARAYANAN V. BRITISH AIRWAYS 7

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 . . . .

Montreal Convention art. 29 (emphasis added).

At issue here is one such limit on liability, set forth in
Article 35(1). This provision states as follows:

The right to damages shall be extinguished if
an action is not brought within a period of two
years, reckoned from the date of arrival at the
destination, or from the date on which the
aircraft ought to have arrived, or from the date
on which the carriage stopped.

Montreal Convention art. 35(1) (emphasis added).3 Taken
together, Articles 29 and 35(1) require that a claim for
damages under the Convention must be filed within two years
of the date upon which the aircraft arrived, or ought to have
arrived, at its destination. Id.

B

Applying these provisions here, it is clear that Plaintiffs’
complaint was untimely filed. Plaintiffs brought an action
pursuant to Article 17(1), alleging that British Airways’
refusal to give Narayanan supplemental oxygen during an

3
See also Warsaw Convention art. 29(1) (“The right to damages shall
be extinguished if an action is not brought within two years, reckoned
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.”).
8 NARAYANAN V. BRITISH AIRWAYS

international flight hastened his death. Their claim arises
under the Convention and is therefore subject to Article
35(1). See Montreal Convention art. 29. This, in turn, means
that Plaintiffs’ right to damages for their wrongful death
claim would be “extinguished if [their] action [was] not
brought within a period of two years, reckoned from the date
of arrival at the destination.” Montreal Convention art. 35(1);
see also Dickson v. Am. Airlines, Inc., 685 F. Supp. 2d 623,
627 (N.D. Tex. 2010). Here, the flight at issue arrived on
December 26, 2008; Plaintiffs thus had until December 26,
2010, to file a claim. However, they did not file their
complaint until March 7, 2011—approximately three months
too late.

This analysis seems straightforward enough. However, a
factual wrinkle persists: even though the “accident” giving
rise to liability under the Convention occurred on December
26, 2008, Narayanan did not die for another six months. As
a result, the limitations period on Plaintiffs’ wrongful death
claim began running six months before it even accrued. The
question thus becomes whether Article 35(1) applies
irrespective of when a claim actually accrues, or whether
local law governs the timeliness of any claims which were not
in existence when the aircraft arrived at its destination. In
answering this question, we write on a virtually blank slate;
we are aware of only one cursory decision (by an Illinois
district court fifty years ago) presenting similar facts. See
Bapes v. Trans World Airlines, Inc., 209 F. Supp. 380, 381
(N.D. Ill. 1962) (summarily holding that the plaintiff’s
wrongful death claim was time-barred under the Warsaw
Convention where her complaint was filed within two years
of the passenger’s death, but more than two years from the
date the aircraft arrived at its destination).
 NARAYANAN V. BRITISH AIRWAYS 9

Plaintiffs contend that the Convention’s two-year
limitations period should have been triggered on the day of
Narayanan’s death, when their wrongful death claim accrued
under California law.4 While this argument may have some
appeal, the plain text of the Convention, as well as its drafting
history and relevant caselaw, convince us that we must
squarely apply Article 35(1), under which Plaintiffs’ claim is
time-barred.

Turning again to the text, the plain language of Article
35(1) leaves no room for flexibility as to the commencement
of the limitations period. Rather, as noted above, the
Convention designates three specific triggering events:
(1) the date of arrival at the destination; (2) the date on which
the aircraft ought to have arrived; and (3) the date on which
the carriage stopped. Montreal Convention art. 35(1). These
are the terms that the Convention’s drafters settled on—and
that 103 separate signatory nations agreed to—in their efforts
to “accommodate or balance the interests of passengers
seeking recovery for personal injuries, and the interests of air
carriers seeking to limit potential liability.” El Al Israel
Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 170 (1999)
(discussing the Warsaw Convention). By urging us to
evaluate the timeliness of their claim under the Convention
based upon the date upon which it accrued under California
law, Plaintiffs effectively ask us to write an implied fourth
trigger into the Convention’s terms. This we cannot do. See
Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 (1989).

4
We note that Plaintiffs still had a year-and-a-half after Narayanan’s
death in which to file their complaint. In this sense, Plaintiffs’ case is not
nearly as sympathetic as the plaintiff in Bapes, whose wrongful death
claim did not accrue until after the two-year window had already closed.
209 F. Supp. at 380–81.
10 NARAYANAN V. BRITISH AIRWAYS

Moreover, we are not persuaded by Plaintiffs’ arguments
as to why Article 35(1) does not apply to their claim.
Plaintiffs first pick apart Article 35(1)’s initial clause, which
states that “[t]he right to damages shall be extinguished if an
action is not brought within a period of two years . . . .”
Montreal Convention art. 35(1). Specifically, they contend
that the drafters’ use of articles such as “the” and “an” means
that Article 35 can only refer to a right or cause of action that
was already in existence at the time of arrival—otherwise the
drafters would have said “any” claim for damages.

This argument, however, rests on faulty logic. Article
35’s reference to “an” action simply refers to a putative claim
for damages brought under the Convention; “the” right to
damages refers to the remedy sought in connection with this
action. Any lingering confusion is further alleviated by
Article 29, which confirms that “any action for damages . . .
can only be brought subject to the conditions and such limits
of liability as are set out in th[is] [Montreal] Convention
. . . .” Montreal Convention art. 29 (emphasis added). This
means, in other words, that any action seeking
damages—regardless of when the cause of action accrued—is
subject to, inter alia, the requirements of Article 35.5

5
Plaintiffs’ argument appears to be premised on our observation in
Chubb Insurance Co. of Europe S.A. v. Menlo Worldwide Forwarding,
Inc. that Article 35 “does not require that ‘all actions’ relating to a
particular event must be brought within two years.” 634 F.3d 1023, 1027
(9th Cir. 2011). Chubb, however, is inapposite here. In Chubb, we drew
a distinction between “an” action and “all actions” as support for our
holding that third-party claims for indemnity and contribution were
beyond the reach of Article 35(1), which applies only to claims for
damages. Id. at 1027–28. Here, because Plaintiffs brought a claim for
damages—not indemnity or contribution—their reliance on Chubb is
misplaced.
 NARAYANAN V. BRITISH AIRWAYS 11

Plaintiffs also rely on Zicherman v. Korean Air Lines
Co., 516 U.S. 217 (1996), for the proposition that “where the
Convention is silent or ambiguous on a key point . . . a ‘pass
through’ to local law is permissible, if not mandatory.”
Under Zicherman, they argue, a “pass-through” to California
law is appropriate because the Convention fails to specify
what happens if a claimant’s cause of action had not accrued
at the time of the flight’s arrival.

The factual premise supporting this argument is incorrect.
The Convention is not silent as to when the two-year
limitations period begins to run on claims for damages;
Article 35(1) provides three specific triggering events. True,
the Convention does not expressly contemplate the possibility
that some causes of actions may not accrue until weeks,
months, or even years after the aircraft arrived at its
destination. But this does not necessarily place such claims
beyond the reach of Article 35(1). The more natural
interpretation of Article 35 is that it was intended to operate
without reference to when a particular claim actually accrued.

Zicherman is inapposite for another reason as well. In
Zicherman, the Supreme Court considered whether the
mother and sister of a deceased passenger could claim
loss-of-society damages. 516 U.S. at 219–21. It reasoned
that because the Warsaw Convention did not resolve the
issues of “who may recover, and what compensatory damages
they may receive,” id. at 227, absent special legislation,
Articles 17 and 24(2) of the Warsaw Convention “provide
nothing more than a pass-through,” and authorize courts to
apply the domestic law that would govern in the absence of
the Warsaw Convention. Id. at 229.
12 NARAYANAN V. BRITISH AIRWAYS

We are unaware of any decision applying Zicherman in
the context of Article 35(1). To the contrary, numerous
courts have expressly limited it to issues pertaining to
compensatory damages. See, e.g., In re Air Crash at Taipei,
Taiwan, on October 31, 2000, 219 F. Supp. 2d 1069, 1071
(C.D. Cal. 2002) (“When read in its entirety, the Zicherman
opinion clearly addresses the sole question of whether the
substantive rule for awarding compensatory damages should
be taken from French law—the language in which the treaty
was written and from which the meaning of the term
‘damages’ (‘dommage’ in the French) must be
determined—or through application of local law, including
the forum’s choice of law principles.”); In re Aircrash
Disaster Near Roselawn, Ind., on Oct. 31, 1994, 960 F. Supp.
150, 152 (N.D. Ill. 1997) (“[T]here are ample indications in
the [Zicherman] decision that the Court was addressing only
the various types of compensatory damages that may be
available.”); cf. In re Air Crash Off Point Mugu, Cal., on Jan.
30, 2000, 145 F. Supp. 2d 1156, 1162 (N.D. Cal. 2001) (“The
court is of the opinion that the Supreme Court’s ‘pass
through’ language was discussing only those claims that were
not otherwise barred by the Warsaw Convention, and that the
Court did not mean to overrule the prohibitions established by
the Convention.”).

Plaintiffs also assert that applying California law is
consistent with Article 35(2) of the Convention. This
provision states:

The method of calculating [the two-year]
period [set forth in Article 35(1)] shall be
determined by the law of the court seized of
the case.
 NARAYANAN V. BRITISH AIRWAYS 13

Montreal Convention art. 35(2).6 However, Article 35(2) has
not been understood as offering claimants a state-law-based
alternative to the strictures of Article 35(1). Rather, as the
Second Circuit has explained, this provision “merely . . .
invoke[s] the power of the forum court to determine whether
the plaintiff accomplished the filing within the limitation
period, a question that may involve . . . the proper party or
agent for receipt of process, and the means of service—in
other words, matters bearing on when an action has been
‘brought.’” Fishman v. Delta Air Lines, Inc., 132 F.3d 138,
144 (2d Cir. 1998) (relying on drafting history in concluding
that “the only matter to be referred to the forum court by
subsection 2 of Article 29 [of the Warsaw Convention] was
‘the determination of whether the plaintiff had taken the
necessary measures within the two-year period to invoke that
particular court’s jurisdiction over the action’” (emphasis
added)); see also, e.g., Pennington v. British Airways, 275 F.
Supp. 2d 601, 604–06 (E.D. Pa. 2003) (holding that Warsaw
Convention Article 29(2) permitted application of a
Pennsylvania procedural rule providing that whenever last
day of limitations period fell on Saturday or Sunday, that day
would be omitted from computation of the limitations
period). Accordingly, we are not persuaded that Article 35(2)
allows for an end-run around Article 35(1).

6
The equivalent provision in the Warsaw Convention, Article 29(2),
similarly provides:

The method of calculating the period of limitation shall
be determined by the law of the Court seised of the
case.

Warsaw Convention art. 29(2).
14 NARAYANAN V. BRITISH AIRWAYS

C

Because we find the language of Article 35 unambiguous,
our analysis need proceed no further. Nevertheless, we note
that the drafting history of the Convention lends support to
our conclusion that Plaintiffs’ complaint is subject to Article
35(1). See Medellin, 552 U.S. at 507 (“Because a treaty
ratified by the United States is ‘an agreement among
sovereign powers,’ we have also considered as ‘aids to its
interpretation’ the negotiation and drafting history of the
treaty as well as ‘the postratification understanding’ of
signatory nations.” (citations omitted)). To start, Plaintiffs’
position that California law governs the timeliness of their
claim is at odds with the Convention’s “cardinal purpose” of
“achiev[ing] uniformity of rules governing claims arising
from international air transportation.” El Al Israel Airlines,
525 U.S. at 169 (internal quotation marks and citation
omitted) (discussing the Warsaw Convention). As the
Supreme Court reasoned in El Al Israel Airlines, “[g]iven the
Convention’s comprehensive scheme of liability rules and its
textual emphasis on uniformity, 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. By this same logic, we are
hard pressed to conclude that the drafters intended to allow
the date upon which a claim accrued under the laws of the
forum state to act as an additional trigger for the Montreal
Convention’s two-year limitations period. Injecting such
uncertainty into the rules governing carriers’ liability would
disrupt the balance that the Montreal Convention’s drafters
and signatories struck.

The drafting history of the Warsaw Convention also
reveals that the drafters intended Article 29 to operate as a
 NARAYANAN V. BRITISH AIRWAYS 15

statute of repose, which, “like a jurisdictional prerequisite,
extinguishes a cause of action after a fixed period of time . . .
regardless of when the cause of action accrued.” Albillo-De
Leon v. Gonzales, 410 F.3d 1090, 1097 n.5 (9th Cir. 2005)
(internal quotation marks and citation omitted) (emphasis
added). The drafters considered—and rejected—a proposal
that would have allowed the limitations period to be tolled in
accordance with the law of the forum court. See R.C. Horner
and D. Legrez, Minutes of the Second International
Conference on Private Aeronautical Law, 110–13 (1975); see
also Fishman, 132 F.3d at 144 (observing that “[a]lmost
every court that has reviewed the drafting minutes of the
[Warsaw] Convention . . . has rejected the contention that
Article 29(2) incorporates the tolling provisions otherwise
applicable in [a] forum [state]” (citations omitted)). Instead,
the Warsaw Convention’s drafters adopted a “very simple”
proposal advanced by the Italian delegation: “if two years
after the accident no action has been brought, all actions are
extinguished.” Laroche v. Spirit of Adventure (UK) Ltd.,
2009 P.I.Q.R P12, P223.7 As one British court observed,

it is clear that the signatories to the Warsaw
Convention intended to adopt the Italian
proposal that, in the interests of certainty,
at the expiry of the two year period, all
claims under the Convention would be
“extinguished” . . . . This is a powerful
indicator that the words of art. 29(1) mean
what they say and that the two year period is

7
Montreal Convention precedent “includes the judicial opinions of our
sister signatories.” Chubb, 634 F.3d at 1028 n.5 (citing Saks, 470 U.S. at
404) (deeming “the opinions of our sister signatories to be entitled to
considerable weight” in interpreting treaties).
16 NARAYANAN V. BRITISH AIRWAYS

not subject to suspension, interruption or
extension in any circumstances.

Id. at P223–24; accord Kahn v. Trans World Airlines, Inc.,
443 N.Y.S.2d 79, 87 (App. Div. 1981) (“[I]t is abundantly
clear that the delegates to the Warsaw Convention expressly
desired to remove those actions governed by the Convention
from the uncertainty which would attach were they to be
subjected to the various tolling provisions of the laws of the
member states, and that the two-year time limitation specified
in article 29 was intended to be absolute—barring any action
which had not been commenced within the two-year
period.”).

Consistent with this history, the prevailing view among
courts across jurisdictions is that the Montreal Convention’s
limitations period operates as a condition precedent to suit
and, as such, is not subject to equitable tolling. See Duay v.
Continental Airlines, Inc., No. H-10-cv-1454, 2010 WL
5342824, at *6 (S.D. Tex. 2010) (noting the “overwhelming
weight of authority against tolling the Montreal Convention’s
two-year limitations period”); Dickson, 685 F. Supp. 2d at
627 (“[The] language [of the Montreal Convention] leaves no
room for the application of a tolling theory, class action or
otherwise, designed to overcome the two-year condition
precedent.”); Husmann v. Trans World Airlines, Inc.,
169 F.3d 1151, 1154 (8th Cir. 1999); Fishman, 132 F.3d at
144. But see Flanagan v. McDonnell Douglas Corp., 428 F.
Supp. 770, 776 (C.D. Cal. 1977).
 NARAYANAN V. BRITISH AIRWAYS 17

Conclusion

It is axiomatic that where the text of a treaty is clear,
courts “have no power to insert an amendment.” Chan,
490 U.S. at 134. As Justice Story once put it:

[T]o alter, amend, or add to any treaty, by
inserting any clause, whether small or great,
important or trivial, would be on our part an
usurpation of power, and not an exercise of
judicial functions. . . . [H]aving found [the
intention of the parties], our duty is to follow
it as far as it goes, and to stop where that
stops—whatever may be the imperfections or
difficulties which it leaves behind.

Id. at 135 (quoting The Amiable Isabella, 6 Wheat. 1, 71,
5 L.Ed. 191 (1821)) (first alteration in original) (internal
quotation marks omitted).

Article 35(1) is clear: a claim for damages based on an
injury incurred aboard an international flight must be filed
within two years of the date upon which the aircraft arrived
at its destination. Plaintiffs’ wrongful death claim was not
timely filed. We therefore hold that the district court
correctly dismissed Plaintiffs’ complaint without leave to
amend.

AFFIRMED.
18 NARAYANAN V. BRITISH AIRWAYS

PREGERSON, Circuit Judge, dissenting:

I dissent. The rationale behind the Montreal
Convention’s uncompromising two-year statute of limitations
(and its $75,000 cap on damage awards) is to protect
international airline carriers to the detriment of passengers
who suffer injuries caused by airline personnel.

The “primary purpose” of the original Warsaw
Convention of 1929 was to “limit[] the liability of air carriers
in order to foster the growth of the fledgling commercial
aviation industry.” Eastern Airlines, Inc. v. Floyd, 499 U.S.
530, 546 (1991) (citations omitted). The Warsaw Convention
was written when the airline industry was in its vulnerable
infancy, and when air travel was considered risky.

The Montreal Convention, however, was adopted in 1999,
after international air travel became a multi-billion dollar
industry, and the risks of flying had decreased exponentially.
In fact, Mr. Narayanan’s injury was not among the dangers
typically associated with air travel (such as mechanical
failures and pilot error), but was due solely to the negligence
of British Airways’s employees. Yet the Montreal
Convention, by retaining the Warsaw Convention’s rigid
statute of limitations, continues to protect international airline
carriers at the expense of its passengers, and bars Mr.
Narayanan’s family from holding British Airways
accountable for its misconduct.

Because of the unfair and unconscionable result in this
case and perhaps others, I hope that the Montreal Convention
will be revisited and revised to protect families like the
Narayanans.