The opinion of the court was delivered by: CHIN
Plaintiff Jagjit Tandon ("Tandon" or plaintiff) brings this diversity action
against United Airlines, Inc. ("United Airlines" or defendant) on behalf of his deceased mother-in-law Dildar Seekree ("Mrs. Seekree") asserting claims arising out of Mrs. Seekree's death on board a United Airlines flight. United Airlines moves (i) to amend its answer to assert an affirmative defense that the action is governed by the Warsaw Convention and (ii) for summary judgment dismissing the action as time-barred under the Warsaw Convention's two-year limitations period. Because I find that the Warsaw Convention has not preempted plaintiff's claims, both motions are denied.
While on flight 901 from London to New York, Mrs. Seekree showed signs of physical distress, such as dizziness and weakness. She began to wheeze, became pale, her extremities grew cold, and her heart rate accelerated. Jagjit Tandon, a physician,
diagnosed Mrs. Seekree as suffering from a heart attack and began to treat her with medication he carried with him. Tandon then asked a flight attendant to bring a portable oxygen container with an oxygen mask so that he could administer oxygen to Mrs. Seekree. The flight attendant brought the container and mask and Tandon began to administer oxygen to Mrs. Seekree, causing her condition to improve. Meanwhile, the pilot agreed to land the aircraft in Boston rather than New York so that Mrs. Seekree could be admitted to a hospital as soon as possible.
Shortly thereafter, Tandon discovered that the oxygen container was nearly empty.
He requested additional oxygen from a flight attendant, but was told that there was no more oxygen available to treat Mrs. Seekree. While the plane was still en route, Mrs. Seekree lost consciousness and died.
United Airlines bases its motion for summary judgment on two grounds. First, United Airlines argues that Mrs. Seekree's death was caused by an accident covered by the Warsaw Convention
and that plaintiff's claims are time-barred under Article 29 of the Warsaw Convention. Second, United Airlines contends that, even if Mrs. Seekree's death was not caused by an accident, the Warsaw Convention preempts all claims arising out of international flights to which it applies so that plaintiff's state law claims are preempted. Plaintiff argues that his claims are not time-barred because Mrs. Seekree's death was not caused by an accident within the meaning of the Warsaw Convention and that his claims are not preempted because the Warsaw Convention does not preclude state law claims that do not arise under its provisions.
The Warsaw Convention establishes the liability of international air carriers for damages caused by accidents and limits carriers' liability for such damages. See Warsaw Convention arts. 17, 22; Air France v. Saks, 470 U.S. 392, 397, 84 L. Ed. 2d 289, 105 S. Ct. 1338 (1985); Rein v. Pan Amer. World Airways, Inc., 928 F.2d 1267, 1270 (2d Cir.) (In re Air Disaster at Lockerbie, Scotland on December 21, 1988), cert. denied, 502 U.S. 920, 116 L. Ed. 2d 272, 112 S. Ct. 331 (1991). The Montreal Agreement increased the amount recoverable under the Warsaw Convention to $ 75,000 for international flights with points of departure or destination in the United States and eliminated certain defenses. See Agreement Relating to Liability Limitations of the Warsaw Convention and the Hague Protocol, Agreement CAB 18900, 31 Fed. Reg. 7302 (1966), note following 49 U.S.C. App. § 1502; Saks, 470 U.S. at 406-07; Lockerbie, 928 F.2d at 1269 n.2.
In addition, the Second Circuit has held that the Warsaw Convention is the exclusive basis of recovery for injuries to which it applies, so that state law claims based on such injuries are preempted. Lockerbie, 928 F.2d at 1273; see Warsaw Convention art. 24.
The parties do not dispute that Mrs. Seekree's trip constituted international transportation governed by the Warsaw Convention. The parties do disagree, however, on the question of whether Mrs. Seekree's death was caused by an "accident" within the meaning of the Warsaw Convention. If her death did arise out of such an accident, as United Airlines contends, the Warsaw Convention is the exclusive basis for plaintiff's claims under Lockerbie and, as conceded by plaintiff, the claims are time-barred under the Warsaw Convention's two-year limitations period. See Warsaw Convention art. 29 ("The right to damages shall be extinguished if an action is not brought within 2 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 transportation stopped."). The parties also dispute the preemptive effect of the Warsaw Convention on state law claims for injuries that do not arise out of Warsaw Convention accidents. For the reasons set forth below, I conclude that neither Mrs. Seekree's heart attack nor United Airlines' alleged failure to provide additional oxygen constitutes an accident within the meaning of the Warsaw Convention, and that plaintiff's common law negligence claims are not preempted. Accordingly, defendant's motion for summary judgment is denied.
A. Accidents Governed by the Warsaw Convention
In Air France v. Saks the Supreme Court construed the term accident as used in Article 17
of the Warsaw Convention to mean "an unexpected or unusual event or happening that is external to the passenger." 470 U.S. at 405. Applying this definition, the Court held that deafness caused by normal cabin pressure changes during routine landing descent did not arise out of an accident covered by the Warsaw Convention. 470 U.S. at 396, 406. Here, as there is no contention that any ...