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TANDON v. UNITED AIR LINES

February 21, 1996

JAGJIT TANDON, as personal representative of DILDAR SEEKREE, deceased, Plaintiff, against UNITED AIR LINES, Defendant.


The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 Plaintiff Jagjit Tandon ("Tandon" or plaintiff) brings this diversity action *fn1" 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.

 BACKGROUND

 On September 28, 1991 Mrs. Seekree embarked on United Airlines flight 901 from London to New York with her daughter Harjit Tandon, her son-in-law Jagjit Tandon, and the couple's two children. According to her plane ticket, Mrs. Seekree's trip began in India, where she lived, and was to make stops in Bahrain, London, New York, and Chicago before arriving in Nashville.

 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, *fn2" 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. *fn3" 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.

 DISCUSSION

 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 *fn4" 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. ยง 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.

 A. Accidents Governed by the Warsaw Convention

 In Air France v. Saks the Supreme Court construed the term accident as used in Article 17 *fn5" 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 ...


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