Plaintiff Mayra Castro, appearing pro se on behalf of herself and her two infant sons, alleges that she and her sons were injured on board American Airlines Flight 611 ("Flight 611") as it made its way from John F. Kennedy International Airport ("JFK") in New York to Puerto Plata in the Dominican Republic on August 15, 1993. Specifically, Ms. Castro alleges that despite bad weather conditions and hurricane warnings, Flight 611 departed JFK at 10:30 am on August 15, 1993, and that within one hour the airplane encountered extreme turbulence, causing herself and her children both physical and emotional distress.
Besides causing all three of them to vomit, Ms. Castro states that her two sons "suffered injuries caused by the belts of the . . . plane's seats," and that she suffered severe burns on her right arm when a stewardess "negligently dropped a tray of hot food on [her]. . . ." Complaint at 4. Finally, plaintiffs allege that because the pilot subsequently informed the passengers that they might have to make an emergency landing on the water, they suffered extreme emotional distress and continue to this day "to suffer . . . nightmares and fears of airplane flight-trips." Complaint at 4.
Ms. Castro and her two children filed this action against various employees of the Federal Aviation Administration ("FAA") on April 18, 1996, and subsequently amended their complaint to add defendant American Airlines, Inc. ("American" or "defendant") on June 7, 1996. Shortly thereafter, the federal defendants moved to substitute the United States of America as defendant in place of the FAA employees, and to dismiss the claims against the United States as time-barred. After a hearing on the matter on October 25, 1996, during which the parties consented to Magistrate Judge Caden deciding the motion, Magistrate Judge Caden signed an Order dated November 7, 1996 granting the motion.
The remaining defendant, American, has now brought a motion to dismiss plaintiffs' claims for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).
American argues, in part, that plaintiffs' claims should be dismissed because they are time-barred. Specifically, defendant argues that plaintiffs' claims are governed by the terms of the Warsaw Convention, and that Article 29 of that convention requires claims to be brought within two years of the arrival of the aircraft at its destination. Because Flight 611 arrived in Puerta Plata on August 15, 1993, and plaintiffs filed their claims against American only on June 7, 1996, American argues that this Court should dismiss plaintiffs' claims as time-barred.
I. Applicability of the Warsaw Convention.
Plaintiffs' claims in this case are governed by the Warsaw Convention. See Convention for the Unification of Certain Rules Relating to International Transportation by Air, done at October 29, 1929, 49 Stat. 3000, T.S. No. 876, reprinted at 49 U.S.C. § 40105 note (hereinafter "Convention"). The Convention applies "to all international transportation of persons, baggage, or goods performed by aircraft for hire." Id. at Art. 1(1). International transportation, in turn, is defined as "any transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated . . . within the territories of two High Contracting Parties . . . ." Id. at Art. 1(2). The United States and the Dominican Republic, which were, respectively, the place of departure and destination for Flight 611, are both High Contracting Parties. See Hartford Insurance Co. v. Compania Dominicana de Aviacion, 1990 U.S. Dist. LEXIS 16140, No. CV-90-0622, 1990 WL 198744, at *4, 6 n.* (E.D.N.Y. Nov. 19, 1990). Flight 611 was therefore engaged in international transportation as defined by the Warsaw Convention.
Additionally, Article 17 of the Convention provides that "the carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft . . . ." Convention, Art. 17. As plaintiffs' allegations make clear, the injuries sustained by Ms. Castro and her two sons took place on board Flight 611, and the Warsaw Convention therefore provides for American's liability to them. Because the Convention applies to plaintiffs' claims, it provides the exclusive avenue for relief and state law is preempted. See In re Air Disaster at Lockerbie, Scotland, on December 21, 1988, 928 F.2d 1267, 1273-74 (2d Cir.), cert. denied, 502 U.S. 920 (1991).
II. The Convention's Statute of Limitations: Article 29.
Article 29 of the Convention provides for a two-year statute of limitations:
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.
Convention, Art. 29(1). Because Flight 611 arrived in Puerta Plata on August 15, 1993, plaintiffs' claims were extinguished on August 15, 1995 -- long before they filed their claims against American on June 7, 1996, or served American on July 18, 1996. Accordingly, defendant argues that plaintiffs' claims should be dismissed as time-barred.
Plaintiffs argue, however, that the two-year limitation period should be tolled during the two children's infancy pursuant to N.Y. C.P.L.R. § 208 (McKinney 1990).
American responds that Article 29(1) is a condition precedent to bringing an action under the Warsaw Convention, and is not subject to tolling under the law of the forum court.
A few courts have found that Article 29 is subject to the forum court's tolling provisions, see, e.g., Joseph v. Syrian Arab Airlines, 88 F.R.D. 530, 532 (S.D.N.Y. 1980), usually relying on their reading of Article 29(2), which provides that "the method of calculating the period of limitation shall be determined by the law of the court to which the case is submitted." More often, however, courts have found that the two-year limit is not subject to tolling. See, e.g., Fishman by Fishman v. Delta Air Lines, Inc., 938 F. Supp. 228, 231 (S.D.N.Y. 1996); Royal Insurance Co. v. Emery Air Freight Corp., 834 F. Supp. 633, 636 (S.D.N.Y. 1993); Data General Corp. v. Air Express Int'l Co., 676 F. Supp. 538, 540 (S.D.N.Y. 1988); Kahn v. Trans World Airlines, Inc., 82 A.D.2d 696, 443 N.Y.S.2d 79, 87 (App. Div. 1981).
These latter courts concluded that tolling was inappropriate after examining the legislative history of Article 29. That history shows that the Convention drafters specifically considered and rejected a version of Article 29 which would have allowed the statute of limitations to be tolled by the law of the forum court. See, e.g., Royal Insurance Co. v. Emery Air Freight Corp., 834 F. Supp. at 636. It also shows that the purpose of Article 29(2) was to have courts apply local law simply to determine when an action has been "brought," rather than to apply local tolling rules. See Fishman by Fishman v. Delta Air Lines, Inc., 938 F. Supp. at 231. This Court therefore rejects plaintiffs' argument that the Convention's two-year limit is subject to New York tolling provisions.
As for determining when the action against American was "brought," this Court need not decide whether federal or New York law is "the law of the court to which the case is submitted." Under either federal or New York rules, the case was not brought within the two-year period.
B. Article 25.
Plaintiffs also argue that the two-year limit does not apply to their claims because they have alleged that American acted with "wilful misconduct" by allowing Flight 611 to fly in obviously dangerous conditions. Article 25 of the Warsaw Convention provides that:
the carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his wilful misconduct . . . .