Dagi v. Delta Airlines, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

T. FORCHT DAGI, M.D., )

)

Plaintiff, ) CIVIL ACTION NO.

) 18-11432-DPW

v. )

)

DELTA AIR LINES, INC. )

)

Defendant. )

MEMORANDUM AND ORDER

December 11, 2018

At issue in the motion to dismiss before me is whether the

two-year statute of limitations under the Convention for the

Unification of Certain Rules for International Carriage by Air,

May 28, 1999, S. Treaty Doc. No. 106-45 (entered into force Nov.

4, 2003) (the “Montreal Convention”) forecloses a passenger’s

claim against an airline. The passenger’s overnight flight took

off from Boston on March 30, 2015, arriving in London on March

31, 2015, where the passenger says he was confined without

justification1 by Delta employees at Heathrow Airport. The

1 I share the concern of the Reporter to an ongoing Restatement

of the Law (Third) Torts project that conventional nomenclature

for the torts of false imprisonment and, derivatively, false

arrest may be confusing or misleading. See generally RESTATEMENT

(THIRD) TORTS: INTENTIONAL TORTS TO PERSONS § 7 Reporter’s Notes cmt. a

(AM. LAW INST., Tentative Draft No. 3, 2018) (false imprisonment);

see also id. at § 9 Reporter’s Notes cmt. c (“Wrongful or

‘false’ arrest is generally treated as a subcategory of false

imprisonment, with the same legal requirements except that

wrongful arrest involves taking a person into custody.”) At the

passenger did not commence this action based on that confinement

until March 28, 2018, nearly three years after the incident. If

the Montreal Convention applies, this suit is time barred.

Concluding that the Montreal Convention applies because the

personal injury alleged by plaintiff did not extend beyond his

disembarkation process and, consequently, that potentially

applicable municipal law — which would provide a more generous

limitation period of not less than three years — is preempted by

the international law regime of the Montreal Convention, I will

allow the motion to dismiss.

I. LEGAL LANDSCAPE

An international air carriage and transportation convention2

embodies an international agreement designed to ensure

outset, I have sought to characterize more precisely the

specifically relevant issues, “confinement” and “justification”

or privilege at the heart of the complaint before me. Greater

doctrinal precision seems especially important in framing my

approach to the claims of “false [or ‘wrongful’] imprisonment”

and “false arrest” asserted by conventional name in plaintiff’s

complaint since those claims may need to be addressed under the

personal injury law of one or another of several different

liability regimes: the Montreal Convention, the municipal law of

England, or the municipal law of Massachusetts.

2 Consideration of the case law regarding two international air

carriage Conventions is appropriate, although only the Montreal

Convention is directly applicable in this case. The

Convention for the Unification of Certain Rules Relating to

International Transportation by Air, Oct. 12, 1929, 49 Stat.

3000, T.S. No. 876 (1934) (“Warsaw Convention”) was the Montreal

Convention's predecessor. As a result, courts rely on case law

arising from the Warsaw Convention in interpreting the Montreal

Convention when the provisions of the two Conventions are

essentially the same. See, e.g., Narayanan v. British Airways,

“protection of the interests of consumers in international

carriage by air and the need for equitable compensation based on

the principle of restitution” while at the same time maintaining

the goal of assuring “limited and predictable damage awards for

airlines.” Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co.,

Ltd., 522 F.3d 776, 781 (7th Cir. 2008) (quoting Ehrlich v. Am.

Airlines, Inc., 360 F.3d 366 (2d Cir. 2004)). Such a convention

provides the sole basis for recovery for bodily injury to

passengers and “precludes a passenger from maintaining an action

for personal injury damages under local law when [his] claim

does not satisfy the conditions for liability under the

Convention.” El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng,

525 U.S. 155, 176 (1999).

Under Art. 17, ¶ 1 of the Montreal Convention, a “carrier

is liable for damage sustained in case of . . . bodily injury of

a passenger upon condition only that the accident which caused

the . . . injury took place on board the aircraft or in the

747 F.3d 1125, 1127 n.2 (9th Cir. 2014) (“Although designed to

replace the Warsaw Convention, the Montreal Convention

incorporates many of its substantive provisions. 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.”) (citations omitted). I follow that interpretive

approach in this Memorandum and will not separately identify the

specific Convention considered in the relevant case law I

discuss, except where the provisions under consideration require

Convention-specific discussion.

course of any of the operations of embarking and disembarking.”

Under Art. 35, ¶ 1 of the Montreal Convention, “[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 . . . .”

If the injury alleged is within the scope of Art. 17, ¶ 1,

the Convention’s statute of limitations (Art. 35, ¶ 1) will bar

Dr. Dagi’s claim. In that circumstance, there will be no need

for further recourse to choice-of-law analysis regarding

alternative statutes of limitation.3 The precise factual focus

3 The preemptive effect of the Montreal Convention is the sole

source of any time bar to Dr. Dagi’s complaint. Absent the

preemptive effect of the Convention, a federal court sitting in

diversity would otherwise apply the choice-of-law rules of the

forum state. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.

487, 496-497 (1941). Thus, I would ordinarily look to

Massachusetts choice-of-law principles as the law of the forum

state here to determine the applicable statute of limitations.

The Massachusetts statute of limitations for false imprisonment

and false arrest is three years. Mass. Gen. Laws ch. 260, § 4.

But Massachusetts choice-of-law jurisprudence takes a

“functional approach” that follows the teachings of the RESTATEMENT

(SECOND) CONFLICT OF LAWS § 142 (AM. LAW INST. 1971). See Nierman v.

Hyatt Corp., 808 N.E.2d 290, 292 (Mass. 2004). Under § 142, the

Massachusetts statute of limitations would apply unless “the

claim would be barred under the statute of limitations of a

state bearing a more significant relationship to the parties and

the occurrence.” RESTATEMENT (SECOND) CONFLICT OF LAWS, § 142(2)(b).

It appears that England would have a more significant

relationship than Massachusetts to the occurrence at issue here.

And the statute of limitations for torts in England is six

years, twice that of Massachusetts. See Limitations Act 1980, c.

58, § 2 (Eng.). Thus, in either case, the potentially

applicable municipal law would not bar Dr. Dagi’s action. As

this Memorandum and Order explains, however, municipal law is

preempted, in any event, by the Montreal Convention.

is on whether Dr. Dagi’s alleged injury on March 31, 2015

occurred “in the course of any of the operations of . . .

disembarking.” Art. 17, ¶ 1.

II. FACTUAL BACKGROUND

The facts alleged in the operative complaint can be

summarized briefly; they are recited more fully when relevant to

the analysis in Section III of this Memorandum.

As the aircraft on which the plaintiff, T. Forcht Dagi,

M.D., began descent to Heathrow Airport, the bag of a Delta

airline flight attendant (the “Attendant”) was reported over the

aircraft intercom as having disappeared. The Attendant loudly

and falsely accused Dr. Dagi of stealing the bag. Dr. Dagi’s

onboard luggage was searched by the Attendant, but the missing

bag was found elsewhere on the plane. The Attendant then

“loudly accused” Dr. Dagi of “probably” having “thrown” the bag

to the other location.

Once the aircraft landed, the Attendant prevented Dr. Dagi

from leaving the aircraft before the other passengers. Upon

reaching the mobile section of the Jetway connecting the

aircraft to the terminal, the Attendant directed a uniformed

Delta ground employee to detain Dr. Dagi and turn him over to

authorities. The Attendant ordered Dr. Dagi to surrender his

passport to the Delta ground employee.

The Delta ground employee then ordered Dr. Dagi to follow

her to another location within the Heathrow Airport terminal

until the police arrived. This involved a walk of ten to

fifteen minutes to a location four hundred yards from the

aircraft and the Jetway. The terminal through which Dr. Dagi

was marched was not itself leased or under the control of Delta;

it was also utilized by other airlines and their passengers.

Dr. Dagi was subject to the sole direction of Delta employees

during his relevant passage through the terminal. Following the

initial walk through the terminal, Dr. Dagi was marched back to

the vicinity of the aircraft where he was handed over to a Delta

supervisor. Dr. Dagi, who was recovering from leg surgery,

suffered significant pain while being forced to transport his

carry-on luggage without assistance.

After the Delta supervisor to whom Dr. Dagi was delivered

talked with a British police officer by phone, the phone was

turned over to Dr. Dagi who was interviewed by the police

officer. Following this phone interview, the police officer

told Dr. Dagi he was free to go, and he proceeded through

immigration without further restraint by Delta employees.

III. ANALYSIS

For purposes of determining whether claims arise from “any

of the operations of . . . disembarking,” Art. 17, ¶1, under the

Montreal Convention, the First Circuit has outlined a “three-

pronged inquiry” involving evaluation of “(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.” McCarthy v. Nw. Airlines,

Inc., 56 F.3d 313, 317 (1st Cir. 1995). The McCarthy court

stated that it did “not view the three factors—activity,

location, and control—as separate legs of a stool, but, rather,

as forming a single, unitary base. In the last analysis, the

factors are inextricably intertwined.” Id. The First Circuit

identified in particular the role of “control” as “an integral

factor in evaluating both location and activity.” Id. (quoting

Evangelinos v. Trans World Airlines, Inc., 550 F.2d 152, 155 (3d

Cir. 1977) (en banc)).

Review of a pair of illustrative cases involving

embarkation will be helpful in getting a sense for how courts

construe the terms “embarking” and, by implication,

“disembarking.”

Day v. Trans World Airlines, Inc., 528 F.2d 31 (2d Cir.

1975) involved injuries from terrorist acts of shooting and

throwing grenades at passengers waiting in line to board the

defendant’s airliner. Id. at 32. The Second Circuit held that

the passengers were “embarking” at the time of the attack

because they had:

already surrendered their tickets, passed through

passport control, and entered the area reserved

exclusively for those about to depart on international

flights. They were assembled at the departure gate,

virtually ready to proceed to the aircraft. The

passengers were not free agents roaming at will through

the terminal. They were required to stand in line at

the direction of TWA's agents for the purpose of

undergoing a weapons search which was a prerequisite to

boarding.

Id. at 33.

By contrast, in McCarthy, the plaintiff, due to her

tardy arrival at the airport for her flight, was escorted

by an airline agent through the airport terminal to the

international boarding area. 56 F.3d at 314. While the

plaintiff was descending an escalator before reaching that

area, the escalator malfunctioned and she fell breaking her

knee. Id. She sued the airline. The First Circuit held

the plaintiff was not “embarking” because she had yet to

fulfill most of the conditions of boarding (e.g., she had

not reached the area restricted for travelers), was not

under the defendant’s control, and was too remote

“temporally and spatially” from the act of embarking. Id.

at 317-18.

With that general framework in mind, I now turn to

unbundling the three distinctive factors identified by the

First Circuit for consideration in the analytical process.

It must bear reemphasis, however, that these factors should

not be conceived as separate strands, but rather are

“inextricably intertwined.” Id. at 317.

A. Location

The relevant locational facts, as alleged, began onboard

the aircraft with the initial accusation by the Attendant. Dr.

Dagi avers that “[o]nce the Aircraft landed, the Attendant

prevented the Plaintiff from leaving the Aircraft before the

other passengers had done so.” This allegedly tortious conduct

then continued on the Jetway, which “connect[s] the Aircraft to

the Terminal.” It was from that point other airline employees

took Dr. Dagi on a walk of ten to fifteen minutes duration

through the terminal to a point approximately 400 yards away,

kept him at that location for 15 minutes, and then escorted him

on another walk of ten to fifteen minutes back to the vicinity

of the aircraft.

The location of the alleged incident through the terminal

justifies classifying it as occurring during disembarking.

In MacDonald v. Air Canada, 439 F.2d 1402, 1405 (1st Cir.

1971), before the First Circuit in McCarthy outlined the three

factors to guide analysis, the court deployed a bright-line test

focusing on location where the court stated “it would seem that

the operation of disembarking has terminated by the time the

passenger has descended from the plane by the use of whatever

mechanical means have been supplied and has reached a safe point

inside of the terminal . . . .” Id. Even using that

mechanistic formulation, it is clear that Dr. Dagi here was

still disembarking when he left the Jetway connection between

the plane and the terminal because he remained under the

supervision and express control of Delta employees who directed

him to points, safe or otherwise, of their choice within the

terminal.

Spatially, the relevant events began on and continued

seamlessly at Delta’s direction directly from the aircraft and

then back to its vicinity during the process of disembarkation.

Temporally, the events in question began on the aircraft

and unfolded in an unbroken chain until the police officer

terminated the airline’s direction and control. There was no

intervening period between Dr. Dagi leaving the aircraft itself

and the alleged tortious conduct. Instead the tortious conduct

involved a continuous course of conduct of slightly less than an

hour that began with directions inside the cabin of the plane

and ended within the terminal, just a walking distance away from

the aircraft.4

4 Dr. Dagi, in his opposition to the motion to dismiss, attempts

to split his claims against Delta into separate actionable

pieces subject to the law of separate jurisdictions by arguing

that once he had reached the Jetway, Delta’s actions became

actionable under the law of England. This approach would avoid

the Convention’s statute of limitations bar for conduct

thereafter.

I conclude Delta’s alleged tortious activity as alleged,

As is apparent, and as anticipated by the First Circuit in

McCarthy, the factor of control is intertwined with the factor

of location. 56 F.3d at 317. Thus, where an airline continues

to wield effective control over an individual even at some

distance from the curtilage of the airplane, disembarkation may

still be occurring. While the concept of control will be

separately discussed below, it is important to observe at this

point that Dr. Dagi admits to being in the uninterrupted and

exclusive control of Delta on the plane, on the Jetway, and in

the terminal until told by the police he could go on his way.

See, e.g., Amended Complaint [Dkt. No. 5 at ¶¶ 25, 27, 28, 33-

35, 38, 42, 46-49, 52, 60] (notably, the Plaintiff uses the

words “detention,” “custody,” “duress,” and “forced” in his

complaint which all denote determinative degrees of control).

The determinative control Delta is alleged to have had over Dr.

Dagi suffuses the “location” and related “duration” analysis.

however, took place during “the operations of disembarking” in a

single, continuous course of conduct that began in the cabin of

the airplane and continued through the Jetway and into the

terminal until supervening direction by the police officer left

Dr. Dagi free to leave Delta’s control. Dr. Dagi’s effort to

transmute his claims into more than one cause of action (i.e.,

pre-Jetway, presumably governed by the Montreal Convention, and

post-Jetway, presumably covered by the law of England) to avoid

the preemptive effect of the Montreal Convention (and its

associated statute of limitations) for the post-Jetway

operations distorts beyond recognition the gravamen of the

single tort by a single defendant alleged in the factual

assertions of the Amended Complaint.

The exercise of control by Delta undergirds the role of location

and duration in supporting the classification of the conduct as

occurring during disembarkation operations.

To use the words of McCarthy, the incidents alleged were

never “far removed” from the threshold point in the process of

disembarkation, 56 F.3d at 318; instead, they were inextricably

connected both temporally and spatially to Dr. Dagi’s ongoing

process of disembarking from the airplane. Id.

B. Activity at Time of Injury

The activity in which Dr. Dagi was compelled to be engaged

at the time of the injury is plainly material to the question

whether he was a passenger still engaged by the operations of

disembarking and thus subject to the Montreal Convention. The

case law outlines the relevant boundaries for embarkation and

disembarkation operations. Compare Schroeder v. Lufthansa

German Airlines, 875 F.2d 613, 618 (7th Cir. 1989) (“[Police

were] questioning Schroeder about a bomb threat. This activity

is not even remotely related to a passenger's embarking or

disembarking from an airplane.”), and Martinez Hernandez v. Air

France, 545 F.2d 279, 282 (1st Cir. 1976) (“[T]he passengers had

already emerged from the aircraft, descended the stairs from the

plane to the ground, traveled via bus or foot from the plane to

the terminal, and presented their passports to the Israeli

authorities. On these facts we do not believe it can be said

that the passengers were still engaged in any activity relating

to effecting their separation from the aircraft.”), with Marotte

v. Am. Airlines, Inc., 296 F.3d 1255, 1260 (11th Cir. 2002)

(“[T]he party had their boarding passes in hand and were

attempting to board the plane when the attack took place.”), and

Day, 528 F.2d at 33 (“[T]he plaintiffs had already surrendered

their tickets, passed through passport control, and entered the

area reserved exclusively for those about to depart on

international flights. They were assembled at the departure

gate, virtually ready to proceed to the aircraft.”)

Here, Dr. Dagi alleges he was falsely imprisoned when he

was disembarking. To be sure, the aircraft’s journey had ended

and Dr. Dagi wanted to get on with his activities in England.

But the relevant events started on the aircraft, proceeded into

the disembarkation process, and had not yet resulted in Delta

surrendering him to either the police or immigration

authorities. This is not a circumstance, like Schroeder or

Martinez, where a plaintiff had moved on to activities

uncontrolled by the airline or its agents following

disembarkation operations.

C. Control

In his opposition to Delta’s motion to dismiss, Dr. Dagi

concedes that he was “under the control of the airline during

the entire duration of his detention . . . .”5 However, he

suggests, without authority, that this is not the “control” with

which McCarthy was concerned. Rather, he contends that the

McCarthy control factor is concerned with the passenger’s

interaction with the airline in the routine course of events

while disembarking at a particular terminal.

Dr. Dagi’s argument is unpersuasive for three basic

reasons.

First, his suggested definition of “control” does not

conform to the ordinary meaning of the word in English or

American dictionaries. The word “control” is not limited

to “routine” circumstances. In the Oxford English

Dictionary, the word control means in this context “[t]he

5 This circumstance effectively distinguishes Dr. Dagi’s case

from other disembarkation cases in which under settled case law

a plaintiff’s passage through the terminal after emerging from

the aircraft was held not to be part of the airline’s operations

of disembarkation. See, e.g., Elnajjar v. Northwest Airlines,

Inc., 2005 WL 1949545, at *4 (S.D. Tex. Aug 15, 2005) (“‘[F]alse

imprisonment’ . . . entailed the direction of law enforcement

officials, not just Defendant’s agent.”); Alleyn v. Port

Authority of N.Y. & N.J., 58 F. Supp. 2d 15, 20-21 (E.D.N.Y.

1999) (citing cases where plaintiffs “unaccompanied by airline

personnel” and cases where “the airlines were no longer exerting

control over the plaintiffs or the area of the terminal where

the plaintiffs were injured.”); Knoll v. Trans World Airlines,

Inc., 610 F. Supp. 844, 847 (D. Colo. 1985) (“Plaintiffs

remaining activities (e.g. immigration, customs) were not

conditions imposed by the airline for her disembarking.”);

Curran v. Aer Lingus, No. 81 Civ. 4590, 1982 U.S. Dist. LEXIS

15937, at *6-7 (S.D.N.Y. Sept. 28, 1982) (restrictions on

plaintiff “imposed by customs, not Aer Lingus.”).

act or power of directing or regulating; command,

regulating influence.” Control, The New Shorter Oxford

English Dictionary (4th ed. 1993). The American usage of

the word is similarly defined. Control, American Heritage

Dictionary (4th ed. 2000) (“To exercise authoritative or

dominating influence over; direct.”) To redefine the word

as suggested by Dr. Dagi would be to introduce without

justification an anomalous linguistic limitation to the

scope of the Montreal Convention and to the First Circuit’s

opinion in McCarthy.

Second, Dr. Dagi suggests that a broad definition of

control would be “pernicious” because it would “empower an

airline, with legal impunity under both the Convention and local

law, to detain an arriving passenger at any location of its

choosing in an arrival ‘secure area,’ and, further, to do so for

as long as is its pleasure.” Other courts have rejected such

“policy” arguments for ignoring the plain understandings reached

in the Convention. I do so as well. The definition and its

implications are part and parcel of the choices made by the

drafters. See, e.g., King v. Am. Airlines, Inc., 284 F.3d 352,

362 (2d Cir. 2002) (Sotomayor, J.) (“It is not for the courts to

rewrite the terms of a treaty between sovereign nations.”

Instead, it is the court’s “responsibility to give the specific

words of the treaty a meaning consistent with the shared

expectations of the contracting parties.”) (quoting Air France

v. Saks, 470 U.S. 392, 399 (1985)).

Third, it appears Dr. Dagi overstates the restrictions on

recovery from the airline, and hence the deterrent effect of

litigation for damages, if timely brought under the Montreal

Convention. Because, as alleged, the claim is based on the

wrongful acts of the airline’s servants or agents and not on

acts of a third party, under the Montreal Convention, the strict

liability damages limit under Art. 21, ¶ 1 could have been

exceeded to the extent Dr. Dagi could prove such damages. Id.

at ¶ 2. Thus, reference in the case law regarding the manner in

which “the Convention massively curtails damage awards . . . ,”

Turturro v. Continental Airlines, 128 F. Supp. 2d 170, 181

(S.D.N.Y. 2001) (emphasis supplied), appears, on closer

analysis, to involve damage limitations for harm caused by third

parties and/or the more restrictive damage limitation regime of

the Warsaw Convention.

Under any of the three potentially applicable regimes for

liability, Dr. Dagi likely would have been able to recover for

his physical injuries and associated mental suffering. See,

e.g., Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 385 (2d Cir.

2004) (Convention permits passengers to hold a carrier liable

for a mental injury causally connected to a bodily injury);

Foley v. Polaroid Corp., 508 N.E.2d 72, 78 (Mass. 1987)

(plaintiff in false imprisonment case may recover “such damages

as are the direct result of the defendant’s wrongful conduct,”

including compensatory damages for “indignity, humiliation and

mental suffering, and shame and anguish of mind”); James

Edelman, McGregor on Damages 1664, 1667-68 (20th ed. 2018)

(referencing English case law dealing with false imprisonment

providing recovery for physical injury, psychological harm, and

humiliation).

As alleged, the complaint before me does not present the

severe limitation of denial of recovery under the Montreal

Convention for personal injury not involving bodily injury. See

E. Airlines, Inc. v. Floyd, 499 U.S. 530, 551-52 (1991).

Whatever the fate of a pure dignitary personal injury claim

under the Montreal Convention, this case presents a compensable

bodily injury claim in which associated mental suffering

damages would be recoverable.

Moreover, if English municipal law applied (as Dr. Dagi

appears to suggest), Dr. Dagi’s quantum of recovery would likely

be more modest than that which could be awarded by a United

States jury (either pursuant to the Montreal Convention or

Massachusetts municipal law). The English and Wales Court of

Appeal has provided guidance for juries stating that basic

damages (to compensate for the loss of liberty) of £500 for the

first hour of false imprisonment is appropriate, with sums

awarded after the first hour to be awarded on a “reducing

scale.” See Thompson v. Commissioner of Police of the

Metropolis [1998] Q.B. 498 (EWCA) 515. As alleged, the duration

of the tort asserted by Dr. Dagi is no more than one hour. In

addition to those relatively modest “basic damages,” English

juries may award “aggravated damages” (for example, humiliation)

but these should generally not exceed twice the basic damages

awarded. Id. at 516; see also Edelman, McGregor on Damages,

supra, at 1667-68.

Dr. Dagi would not be able to recover punitive damages

(referred to as “exemplary damages” in England) under the

Montreal Convention. See Montreal Convention, Art. 29. That is

similarly the law of England, see Rookes v. Barnard [1964] A.C.

1129 (HL) (limiting exemplary damages to three limited

scenarios, none of which are applicable in Dr. Dagi’s case), and

Massachusetts. See Aleo v. SLB Toys USA, Inc., 995 N.E.2d 740,

753 (Mass. 2013) (“Under Massachusetts law, punitive damages may

be awarded only where authorized by statute.”)

For all practical purposes, then, the Montreal Convention

does not by terms categorically provide the potential for any

less generous damage recovery than would the law of England or

Massachusetts if, absent preemption, the municipal law supplied

by either of those jurisdictions were to govern this dispute.6

In short, even if I were authorized — which I am not — to

rewrite the terms of the Montreal Convention to avoid preemption

and employ the substantive law of England or Massachusetts, it

does not appear that any significant benefit involving more

generous damages would accrue to Dr. Dagi. Thus, by permitting

the statute of limitations for the Montreal Convention to run,

Dr. Dagi lost not only the right to pursue damages essentially

no less generous than would have been available under the law of

England or Massachusetts, he also lost the opportunity to deploy

the Convention as a tool to deter airlines from the “pernicious”

conduct of unlawfully and unreasonably detaining passengers

during disembarkation operations.

6 Massachusetts choice-of-law principles, otherwise applicable in

this diversity action as the law of the forum, Klaxon Co., 313

U.S. at 496-497, would likely apply § 146 of the RESTATEMENT

(SECOND) CHOICE OF LAW. See Cosme v. Whitin Mach. Works, Inc., 632

N.E.2d 832, 835 (Mass. 1994); Robidoux v. Muholland, 642 F.3d

20, 25 (1st Cir. 2011). Under § 146 of the Restatement, the law

of England as the jurisdiction where the injury occurred,

presumptively applies. It does not appear, applying the

principles stated in § 6 of the Restatement, that Massachusetts

has a more significant relationship to the occurrence than

England. Thus, no argument based on § 6 appears available to

overcome the presumptive application of the substantive law of

England in this case, absent the preemptive effect of the

Convention. See Cosme, 632 N.E.2d at 647. Presumably, this is

why Dr. Dagi appears in his complaint principally to reference

the law of England regarding false arrest and wrongful

imprisonment.

D. Summary on Disembarkation

In summary, after evaluating the three-factor analysis

directed by the First Circuit in McCarthy, I conclude that the

factors considered separately and together require the incident

be classified as occurring during “disembarking.” This case is

clearly distinguishable from those dealing with passengers

suffering injury during some part of their passage through an

airport unrelated to the operations of embarking or

disembarking. Instead, here the acts as alleged arose on the

plane near the end of the flight, continued after landing, and

proceeded through the airline’s Jetway into the terminal during

which time Dr. Dagi was under the control of Delta employees who

directed his movement from location to location at all points.

The alleged tortious conduct occurred during disembarkation

operations for Dr. Dagi. Liability is governed exclusively by

the Montreal Convention. Under the Montreal Convention, that

liability was extinguished on March 31, 2017, two years after

Dr. Dagi’s arrival in London where he says the wrongful conduct

took place.

IV. CONCLUSION

Dr. Dagi’s complaint must be read to allege that he was

engaged in operations of disembarking at the time of the

challenged conduct by Delta and its employees. Dr. Dagi’s

municipal law claims are, therefore, preempted by the Montreal

Convention because the Convention’s limitation provision

extinguished the liability for the injury alleged in his

complaint well before this action was filed.

Accordingly, Delta’s motion [Dkt. No. 7] to dismiss based

on the statute of limitations established by the Montreal

Convention is hereby GRANTED and Delta’s belated motion [Dkt.

No. 16] to file an amended motion to dismiss is therefore

treated as MOOT. The Clerk shall terminate this case.

/s/ Douglas P. Woodlock_________

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE