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Posted: March 12, 2018

Judge Ross Dismisses Personal Injury Claim against Airline as time-barred under Montreal Convention

Posted by Solomon N. Klein, Litigation Partner

District Judge Allyne R. Ross recently dismissed a personal injury case against Pakistan International Airlines, holding that the time limitations under the Montreal Convention is not subject to tolling under New York law – even if New York law might otherwise apply to calculating the time period. Mughal v. Pakistan Int’l Airlines, 14-cv-2505 (E.D.N.Y Feb. 28, 2018) (ARR) (SMG).

Plaintiff claimed that he slipped and fell in the airline’s transit lounge during a stopover in Lahore, Pakistan. The action is governed by the Montreal Convention, which is the modern successor to the Warsaw Convention governing liability for injuries to passengers during international commercial flights, as well as during embarking or disembarking.

The action was brought after the two year period for bringing such claims under the Montreal Convention. However, plaintiff argued that plaintiff’s brain injury tolled the time limitation under New York’s tolling statutes. The Court, however, held that the time limitation under the Montreal Convention is not subject to tolling, even if New York law would otherwise apply to calculation of the limitations period.

Article 35 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 the date on which the aircraft ought to have arrive, or from the date on which the carriage stopped.” Article 35 further specifies that “[t]he method of calculating that period shall be determined by the law of the court sei[z]ed of the case.” Under New York Law, an action is commenced by filing of a summons and complaint. See N.Y. C.P.L.R. § 304(a). Plaintiff does not contest that he filed his initial complaint more than two years after his transportation ended. See Pl.’s Opp’n 1. Rather, plaintiff contends that the limitations period should be tolled because he had a brain injury that, he argues, provides grounds to extend the statute of limitations under New York law. See id. (citing N.Y. C.P.L.R. §§ 208, 1201).

Plaintiff’s argument fails as a matter of law, because the Montreal Convention’s two-year time bar is a condition precedent to bringing suit and is not subject to tolling. Ireland, 20 F. Supp. 3d at 345 (holding that “the limitation provision in Article 35 creates a condition precedent to suit, rather than a statute of limitations, and is therefore not subject to tolling”); Mateo, 847 F. Supp. 2d at 387 (“This limitations period ‘constitutes a condition precedent—an absolute bar—to bringing suit.’” (quoting American Home Assur. Co. v. Kuehne & Nagel (AG & Co.) KG, 544 F. Supp. 2d 261, 263 (S.D.N.Y. 2008))); see also Fishman by Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 143 (2d Cir. 1998) (holding that the two-year time limitation in Article 29 of the Warsaw Convention was a “condition precedent to suit . . . that is often deemed not subject to tolling”).

Mughal v. Pakistan Int’l Airlines, 14-cv-2505 (E.D.N.Y Feb. 28, 2018) (ARR) (SMG).

Posted by Solomon N. Klein, Litigation Partner

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