In Narayanan v. British Airways, No. 11-55870 (9th Cir. Mar. 19, 2014), the Ninth Circuit Court of Appeals held that, under the plain language of Article 35(1) of the Montreal Convention, the Convention’s two-year limitations period applies even to claims which have not yet accrued at the time that the limitations period is triggered. In other words, the Court held that even if a cause of action is yet to accrue under local law, the Montreal Convention’s limitation period will foreclose any actions that are not brought within a period of two years.
Article 35(1) of the Montreal Convention provides that “[t]he 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.”
Narayanan involved a wrongful death action brought by the widow and adult children of Papanasam Narayanan. Mr. Narayanan, who suffered from an advanced-stage lung disease, requested supplemental oxygen during a flight from Los Angeles to London. Plaintiffs alleged that he was denied supplemental oxygen during flight and died six months later as a result of that deprivation. Plaintiffs brought their wrongful death suit within two years of Mr. Narayanan’s death, but more than two years after his flight had arrived at its destination. The district court dismissed plaintiffs’ complaint for failure to state a cause of action because the complaint was filed beyond the two-year limitation period of the Montreal Convention.
In upholding the district court’s dismissal, the Ninth Circuit said that a plain reading of the Convention made it clear that the complaint was untimely. The Court noted, however, that a “factual wrinkle” existed, in that the limitations period for plaintiffs’ claim began running six months before the claim actually accrued. In determining whether Article 35(1) applied irrespective of when a claim accrues, the Court pointed out that it was deciding an issue of first impression in the Ninth Circuit and that the only decision presenting similar facts was a brief 1962 Illinois district court decision which had summarily held that a wrongful death claim was time-barred.1
Plaintiffs argued that Article 35(1) should not apply to preclude their action because the wrongful death claim did not begin to accrue under California law until the date that Mr. Narayanan died, which was six months after the aircraft arrived at its destination. Plaintiffs asserted that the drafters’ use of articles “the” and “an” in Article 35(1), rather than referring to “any” claim for damages, must indicate a cause of action that was already in existence at the time the aircraft arrived at its destination, and their claim was not yet in existence at that time.
The Ninth Circuit rejected this argument, noting that Article 35(1) in conjunction with Article 29, which provides that “any” action for damages must be brought subject to the conditions of the Convention, makes clear that any action seeking damages, regardless of when the claim may accrue, is subject to the two-year limitations period of Article 35(1). In a footnote, the Court noted that plaintiffs’ argument appeared to be in reliance on its previous decision in Chubb Ins. Co. of Europe S.A. v. Menlo Worldwide Forwarding, Inc., where the Court distinguished between “an” action and “all” actions in finding that third party claims for indemnity and contribution were beyond the reach of Article 35(1).2 The Court stated that because plaintiffs had brought a claim for damages, and not for indemnity or contribution, their reliance on the Chubb decision was misplaced.
Although the Court held that the text of the Convention was unambiguous and it need not proceed any further, it also noted that the drafting history of the Convention supported its conclusion. The Court stated that plaintiffs’ argument that California law governed the timeliness of their wrongful death claim was at odds with the “Convention’s cardinal purpose of achieving uniformity of rules governing claims arising from international air transportation.” It went on to state that the drafting history of the Convention indicated that the drafters intended the two-year limitations period to act as a statute of repose, which would function as a jurisdictional prerequisite that extinguishes causes of action not brought within the fixed period of time. In further support of its holding, the Court cited to numerous other courts that had similarly held that the limitations period of Article 35(1) operates as a condition precedent to suit and is not subject to any equitable tolling which may be available under local law.
The Ninth Circuit’s decision in Narayanan reinforces the strict application of the limitations period which was contemplated by the drafters of the Montreal Convention, and recognizes the uniform application of the two-year limitations period to all claims for damages, regardless of when those claims may accrue under a jurisdiction’s local law.
1 Bapes v. Trans World Airlines, Inc., 209 F. Supp. 380, 381 (N.D. Ill. 1962).
2 Chubb Ins. Co. of Europe S.A. v. Menlo Worldwide Forwarding, Inc., 634 F.3d 1023, 1027 (9th Cir. 2011).