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.