9th Cir.;

The court of appeals affirmed a judgment of the district court. The court held that under the plain language of the Montreal Convention, a wrongful death claim that had not yet accrued when the two-year limitation period was triggered was nonetheless barred by that limitation.

Panansam Narayanan (Panansam) suffered from an advanced-stage lung disease. While aboard a British Airways (BA) international flight in December 2008, Panansam was allegedly denied supplemental oxygen. Panansam died in June 2009. In March 2011, Panansam’s widow, Susheela Narayanan (Narayanan), individually and on behalf of the heirs and estate of Panansam, filed a lawsuit against BA in California state court under the Montreal Convention (MC). Narayanan alleged that the denial of oxygen hastened Panansam’s death. BA removed the case to federal court. The district court dismissed Narayanan’s complaint as untimely, finding that MC art. 35(1) required her claim to be filed within two years of the date the BA aircraft arrived. Narayanan appealed.

The court of appeals affirmed, holding that Narayanan’s action was barred by the two-year limitation period in art. 35(1).

In an issue of first impression in the Ninth Circuit, the court concluded that Narayanan’s complaint was clearly untimely. Under art. 35(1), Narayanan had to file by December 2010, but did not do so until March 2011. Further, regardless of the start of the limitation period six months before Narayanan’s claim accrued, the court maintained that art. 35(1) applied to bar her action. The plain language of art. 35(1) left no room for flexibility as to the start of the limitation period. Rather, art. 35(1) designates three specific triggering events as the date of arrival at the destination, the date on which the aircraft ought to have arrived, or the date on which carriage stopped. The court declined to infer a fourth trigger based on the date that Narayanan’s claim accrued under California law.

Moreover, the court was not persuaded by Narayanan’s arguments as to why art. 35(1) did not bar her claim. MC art. 29 provides that any action seeking damages — regardless of when such claim accrued — is subject to, among other things, the requirements of art. 35. Further, the fact that the MC did not expressly contemplate the possibility that some claims might not accrue until after the aircraft arrived at its destination did not necessarily place such claims beyond the reach of art. 35(1). Rather, the more natural interpretation of art. 35 was that it was intended to operate without reference to when a particular claim actually accrued.

In addition, the court noted that art. 35(2) provides that the art. 35(1) limitation period is to be calculated under “the law of the court seized of the case.” However, article 35(2) has not been understood as offering claimants a state-law-based alternative to the strictures of art. 35(1). Rather, it has been held that the provision merely invokes the power of the forum court to determine whether the plaintiff accomplished the filing within the limitation period, a question that may involve matters bearing on when an action has been “brought,” such as the proper party or agent for receipt of process and the means of service.

Judge Pregerson dissented. He opined that retention of the rigid two-year limitation period of the 1929 Warsaw Convention in the 1999 MC protects international air carriers to the detriment of passengers like Panansam, whose injury was not among the dangers typically associated with air travel, such as mechanical failure and pilot error, but was due solely to the negligence of BA personnel.