A lot of people ask about what to do if injured on an airplane. The law is complex but one thing you should know is that for certain international flights the claim is governed by something called the Montreal Convention.
The Montreal Convention came up with a set of rules on how claims are handled when you are on an intentional flight. The purpose was to make a uniform set of rules across countries. That way you are treated the same in Canada as in the United states.
I’m currently in litigation against an airline right now and we are fighting to keep the case in California State Court in Los Angeles. There’s where the my clients live and have received treatment. The airline is trying to kick the case out of state court. Their argument is that the Montreal Convention applies, preempts state law, and the case must be heard in federal court.
I think the defendant airline is wrong because according to some federal court decisions, the Montreal Convention only sets up the rules on the remedies available when you are injured on an airplane, it doesn’t say where the case has to be venued, state or federal court.
Here is some of the supporting law I am using:
The Montreal Convention allows state law tort actions against airlines. “Although a congressional intent favoring uniformity is found in cases turning on the Warsaw Convention, this relates to the remedy available, not to the forum adjudicating the remedy.” Rogers v. American Airlines, Inc., 192 F. Supp. 2d 661 (N.D. Tex. 2001).
Federal Courts in the 9th Circuit have regularly permitted state law tort causes of action to proceed in state court applying the remedies allowed under the Montreal Convention. See Serrano v. Am. Airlines, Inc., No. CV08-2256 AHM (FFMX), 2008 WL 2117239, at *7 (C.D. Cal. May 15, 2008) (“…[T]he Montreal Convention does not completely preempt claims such as Plaintiffs’ from being litigated in state court. Defendant has not demonstrated that Congress intended that the Montreal Convention ‘wholly displace[ ]’ Plaintiffs’ contract and tort causes of action.”; See also Nankin v. Cont’l Airlines, Inc., No. CV 09-07851 MMM RZX, 2010 WL 342632, at *6 (C.D. Cal. Jan. 29, 2010)
