Opinion
No. 09-5012616
August 17, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS (NO. 110)
FACTS
On July 29, 2009, the plaintiffs, Ina Berson and Sidney Berson, filed a two-count complaint against the defendant, Delta Air Lines, Inc., for personal injuries allegedly sustained by Ina as the result of a fall that occurred while she was disembarking from an aircraft at Charles de Gaulle airport in Paris, France. In their complaint, the plaintiffs allege the following facts. On or about June 2, 2008, Ina purchased a passenger ticket for an international flight from the defendant that was to occur on November 7, 2008. On that date, Ina traveled as a business invitee on the flight. Once Ina landed at the Charles de Gaulle airport, she was required to disembark the aircraft, cross the airport tarmac and enter a bus that would transfer her to another aircraft that she was to board for the next portion of her trip. At that time, the air stairs, airport tarmac and bus steps were wet and slippery due to rain. As a result of the wet and slippery conditions, Ina slipped and fell while disembarking from her aircraft, suffering serious injuries. Count one of the complaint, brought by Ina, alleges a claim for negligence against the defendant. Count two of the complaint, brought by Sidney, alleges a claim for loss of consortium against the defendant.
On March 22, 2009, the defendant filed a motion to dismiss the plaintiffs' complaint on the ground that the Montreal Convention preempts the present litigation, and therefore, this court lacks subject matter jurisdiction over the plaintiffs' claims. The defendant filed a memorandum of law in support of its motion. On April 8, 2010, the plaintiffs filed a memorandum in opposition to the defendant's motion.
The Montreal Convention is formally known as the Convention for Unification of Certain Rules for International Carriage by Air, done at Montreal on May 28, 1999, reprinted in S. Treaty Doc. No. 106-45, 1999 WL 33292734 (2000).
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
The defendant argues that the plaintiffs' complaint should be dismissed on the ground that the Montreal Convention applies to all claims arising from the international carriage of persons performed by aircraft, and preempts all state law claims that fall within its scope, such as those claims alleged by the plaintiffs. The plaintiffs concede that the Montreal Convention governs their claims, but counters that this court has the authority to adjudicate their tort actions pursuant to the terms of the treaty.
The Montreal Convention is a treaty of the United States, effective November 4, 2003, which governs the rights and liabilities of international air carriers and passengers. The Montreal Convention supercedes and replaces the earlier Warsaw Convention. See Sompo Japan Ins. Co. v. Nippon Cargo Airlines Co., Ltd., 522 F.3d 776, 779-81 (7th Cir. 2008) (discussing history of Warsaw and Montreal Conventions). "Like the Warsaw Convention . . . the Montreal Convention has been construed as having a complete preemptive effect over all claims within its scope." (Internal quotation marks omitted.) Gerard v. American Airlines, Inc., Superior Court, judicial district of Stamford, Docket No. CV 06 4010485 (July 12, 2007, Nadeau, J.) ( 43 Conn. L. Rptr. 760, 762). "Courts interpreting the Montreal Convention rely on cases interpreting similar provisions of the Warsaw Convention." (Internal quotation marks omitted.) Id.
The Warsaw Convention is formally known as the Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934).
The Montreal Convention covers "all international carriage of persons, baggage or cargo performed by aircraft for reward." Montreal Convention, Article 1(1). Liability for personal injury is governed by Article 17 of the Montreal Convention, which provides in relevant part: "The 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." The Montreal Convention also contains an exclusivity provision, found in Article 29, which provides in relevant part: "[T]he Convention and its limits shall be applicable to all actions for damages arising in the carriage of passengers, baggage, and cargo, however such claims may be founded."
Although the United States Supreme Court has yet to interpret the exclusivity clause in the Montreal Convention, it addressed the exclusivity of the Warsaw Convention in El-Al Israel Airlines Ltd. v. Tseng, 525 U.S. 155, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999), in which it held that the Warsaw Convention afforded the exclusive remedy for any personal injury suffered on board an international flight or during any of the operations of embarking or disembarking. The Supreme Court further held that allowing state law causes of action for injuries within the scope of the Warsaw Convention would "undermine the uniform regulation of international air carrier liability that the [Warsaw] Convention was designed to foster." El-Al Israel Airlines Ltd. v. Tseng, supra, 525 U.S. 161. "Under the reasoning of El-Al, the Montreal Convention also precludes alternative causes of action . . . The Montreal Convention, like the Warsaw Convention, will therefore bar any claim outside its terms for personal injury suffered on board an aircraft or in the course of any of the operations of embarking or disembarking." Schaefer-Condulmari v. U.S. Airways Group, Inc., United States District Court, Docket No. 091146 (E.D.Penn. December 8, 2009).
In the present case, the plaintiffs allege that Ina was injured during the process of disembarking from an international flight. The plaintiffs further concede that the Montreal Convention governs their claims. As discussed herein, the Montreal Convention provides the exclusive means by which liability may be imposed upon an airline for bodily injury suffered by a passenger while disembarking an aircraft on an international flight. Both counts of the plaintiffs' complaint allege state law claims. Neither of the plaintiffs' claims are based upon the Montreal Convention's liability provisions, nor do the plaintiffs cite to the Montreal Convention or state that their actions arise under the Montreal Convention. Compare Edem v. Ethiopian Airlines Enterprises, United States District Court, Docket No. 08CV2597 (E.D.N.Y. September 30, 2009) (finding plaintiff's claims arose under Montreal Convention where none of plaintiff's counts were based on treaty provisions, but plaintiff was pro se litigant and alleged his "action arises under the Treaties of the United States"). Because the plaintiffs' claims for negligence and loss of consortium are governed by the Montreal Convention, they must be brought under the treaty's terms, not under state law. See, e.g., Schaefer-Condulmari v. U.S. Airways Group, Inc., supra, United States District Court, Docket No. 091146; Yahya v. Yemania-Yemen Airways, Docket No. 0814789 (E.D.Mich. August 6, 2009). As a result, the defendant's motion to dismiss the plaintiffs' state law causes of action must be granted.
CONCLUSION
Based on the foregoing, the court hereby grants the defendant's motion to dismiss the plaintiffs' complaint in its entirety.