Recent Ninth Circuit Memorandum Decision Underscores Importance of Pleading Conditions of Liability for Claims Subject to the Montreal Convention

By Rachael R. Wallace | Related Practice: Aviation

In a recent unpublished decision, the Ninth Circuit reversed a district court’s dismissal of a plaintiff’s lawsuit against an air carrier. In doing so, the Ninth Circuit provided a reminder that a party seeking to bring a claim subject to the Montreal Convention must plead the correct conditions of liability and file within the applicable statute of limitation period.

The memorandum decision in Doe v. Compania Panamena de Aviacion, No. 21-55983, 2022 WL 1658229, at *1 (9th Cir. May 25, 2022) reversed and remanded, in part, the district court’s denial of the plaintiff’s motion for leave to amend the complaint to state a claim under the Montreal Convention. The Ninth Circuit concluded that such a claim was not time-barred by the Montreal Convention’s two year statute of limitation.

Instead of requiring the plaintiff to amend her complaint to cite to the Montreal Convention explicitly, the Ninth Circuit instructed the district court on remand to construe the plaintiff’s complaint as alleging a claim under Article 17 of the Montreal Convention.

Such an instruction from the Ninth Circuit could prove fatal to the plaintiff’s claims because, although there is no requirement that the Montreal Convention be cited or specifically pleaded for a cause of action to arise under it, the Montreal Convention contains specific conditions of liability that must be plead for a plaintiff to recover under any law. 

For a plaintiff to maintain any personal injury claim arising out of international carriage, the plaintiff must allege facts that show an (1) accident (2) that caused the plaintiff to (3) suffer bodily injury (4) which took place on board the aircraft or in the course of any of the operations of embarking or disembarking. See Montreal Convention, Art. 17, § 1.

When the Montreal Convention applies, failure to allege facts sufficient to meet these

conditions of liability results in dismissal of the claims on the basis of preemption. Depending on how the plaintiff in this case pleaded her original complaint, which did not anticipate the application of the Montreal Convention, she may face dismissal for having failed to plead the specific conditions outlined above in Article 17.