In re Air Crash at Lexington, Ky, August 27, 2006, 5:06 CV 316 KSF.

Citation501 F.Supp.2d 902
Decision Date26 June 2007
Docket NumberNo. 5:06 CV 316 KSF.,5:06 CV 316 KSF.
PartiesIn re AIR CRASH AT LEXINGTON, KENTUCKY, AUGUST 27, 2006 RELATING TO: Civil Action 06-CV-371-KSF (formerly styled Demrow v. Comair, Inc.) Tony Byrd, et al., Plaintiffs v. Comair, Inc., Defendant.
CourtUnited States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
501 F.Supp.2d 902
RELATING TO: Civil Action 06-CV-371-KSF (formerly styled Demrow v. Comair, Inc.)
Tony Byrd, et al., Plaintiffs
Comair, Inc., Defendant.
No. 5:06 CV 316 KSF.
United States District Court, E.D. Kentucky, Central Division
June 26, 2007.

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David T. Royse, Perry M. Bentley, Robert M. Watt, III, Steven Brian Loy, Stoll Keenon Ogden, PLLC, Jerome Park

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Prather, William R. Garmer, Garmer & O'Brien, LLP, Phillip D. Scott, Greenebaum, Doll & McDonald, PLLC, Keith Moorman, Frost Brown Todd LLC, Joe C. Savage, Escum L. Moore, III, Savage, Elliott, Houlihan, Moore, Mullins & Skidmore, LLP, Benjamin L. Kessinger, III, Shelby C. Kinkead, Jr., Kinkead & Stilz, PLLC, Peter Perlman, Peter Perlman Law Offices, William W. Allen, Gess, Mattingly & Atchison, P.S.C., Lexington, KY, Gerard R. Lear, Speiser Krause, Arlington, VA, Howard W. Simcox, Jr., Karen L. Sussman, Sussman & Simcox, Gaithersburg, MD, Kenneth P. Nolan, Speiser, Krause, Nolan & Granito, Dorothea M. Capone, Douglas A. Latto, Michel F. Baumeister, Baumeister & Samuels, PC, Marc S. Moller, Kreindler & Kreindler, LLP, New York, NY, B. Keith Williams, Lannom & Williams, Lebanon, TN, T. Bradley Manson, T. Bradley Manson, PA, Overland Park, KS, Louise Malbin Roselle, Paul M. Demarco, Renee A. Infante, Stanley M. Chesley, Waite, Schneider, Bayless & Chesley Co., LPA, Cincinnati, OH, Allen Schulman, Jr., Canton, OH, Bruce A. Lampert, Richard F. Schaden, Schaden Katzman Lampert & McClune, Broomfield, CO, Charles M. Pritchett, Jr., Frost Brown Todd LLC, Louisville, KY, David I. Katzman, Schaden Katzman Lampert & McClune, Troy, MI, David L. Fiol, Elizabeth J. Cabraser, Lexi J. Hazam, Robert L. Lieff, Leiff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA, Kulbinder Singh Garcha, Doig & Garcha, Kingsway Burnaby, BC, Jeff Ralston, Wilmot, May & Ralston, Stanford, KY, David L. Bohannon, Nora J. Shepherd, Sword, Floyd & Moody, PLLC, Walter G. Ecton, Jr., Ecton, Harhai & Shannon, PLLC, Richmond, KY, James N. Osteen, Jr., L. Kelly Davis, Osteen & Osteen, Hinesville, GA, Edward Z. Menkin, Syracuse, NY, for Plaintiffs.

C. Timothy Cone, Gess, Mattingly & Atchison, P.S.C., Lexington, KY, pro se.

Alan J. Brinkmeier, Linda J. Schneider, Michael J. Merlo, Merlo, Kanofsky, Brinkmeier & Gregg, Chicago, IL, Carol L. Thomson, Treece, Alfrey, Musat & Bosworth, PC, Denver, CO, Douglas W. Rennie, Matthew Elton Stubbs, Montgomery, Rennie & Johnson, Cincinnati, OH, Richard W. Edwards, Boehl, Stopher & Graves, Louisville, KY, Ronald L. Green, Boehl, Stopher & Graves, LLP, Linsey W. West, Kara MacCartie Stewart, Woodward, Hobson & Fulton, LLP, Lexington, KY, Bradley E. Jewett, Edwin W. Green, Allen, Matkins, Leck, Gamble, Mallory & Natsis, LLP, Los Angeles, CA, Terence M. Healy, U.S. Department of Justice-Aviation & Admiralty Litigation, `Washington, DC, for Defendant.

Edward H. Stopher, Boehl, Stopher & Graves, Louisville, KY, L. Richard Musat, Treece, Alfrey, Musat & Bosworth, PC, Denver, CO.


FORESTER, Senior District Judge.

This matter is before the Court on Plaintiffs' Motion to Remand [DE # 191] the action to the Fayette Circuit. Court. This motion was passed in the Court's Opinion and, Order remanding other cases in order to allow briefing on the jurisdictional impact of the Warsaw Convention1 or Montreal Convention.2 The matter having

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been fully briefed, it is now ripe for review.


Brian Byrd was a passenger on Comair Flight 5191 that crashed August 27, 2006, in Lexington, Kentucky. The parties agree that he had a round-trip ticket from Lexington with a stay in St. Lucia. They do not agree, however, on whether his flight is subject to an international treaty regarding air carrier liability.

In their initial memorandum, Plaintiffs argue that neither the Warsaw Convention nor the Montreal Convention affect their motion to remand for several reasons. First, they note that St. Lucia is not a signatory to either treaty. Second, Plaintiffs made no claims under the treaties; instead, they pled only state law causes of action. Third, they urge this Court to apply the same preemption analysis to the Warsaw Convention or Montreal Convention as it applied to the Federal Aviation Act of 1958, under which Comair asserted federal question jurisdiction for purposes of removal of this and other cases [DE # 423, p. 3; # 448, p. 6]. Under such an analysis, they argue that Comair's "defense" of preemption will not support removal. Moreover, they claim there is no evidence the contracting parties intended to completely preempt state courts from consideration of such claims. Plaintiffs emphasize the rarity of complete preemption in the United States and the narrow interpretation to be given to removal statutes. Fourth, Plaintiffs argue that Comair waived any application of either convention by not pleading it as an affirmative defense and by not raising it in response to Plaintiffs' motion to remand. Finally, Plaintiffs argue that Comair must prove compliance with the contractual requirements of a convention before it may avail itself of the convention benefits.

Comair responds that St. Lucia need not be a signatory to the treaties in order for Brian Byrd's flight to constitute "international travel" subject to the treaties, and that both treaties preempt state law claims in substantially the same way. Comair argues, alternatively, that St. Lucia may be considered a signatory to the Warsaw Convention because it ratified other treaties or because it was a colony at the time the United Kingdom ratified it. Comair next argues that federal law exclusively governs and completely preempts claims arising under the conventions. With respect to its compliance with the conventions, it provides the affidavit of its General Attorney regarding notification routinely given to passengers. Finally, it argues that it did not waive application of the conventions and will amend its pleadings to assert a defense based upon the Montreal Convention.

Plaintiffs reply that removal jurisdiction is improper in that Comair is confusing "ordinary preemption" with "complete preemption" and that removal may not be based upon a defense of preemption. Plaintiffs note that removal was not an issue in the cases relied upon by Comair, and that a few courts have remanded similar cases, rejecting claims of complete preemption by the Warsaw Convention. They reassert the absence of evidence of the contracting parties' intent that only federal courts can hear claims to which one of the conventions applies. Plaintiffs submit that, if the Court holds that `the conventions completely preempt state law claims, "there remain factual and legal issues that must be determined before any court can find that the Montreal Convention applies" [DE # 448, p. 7]. For example, Plaintiffs seek discovery regarding the e-ticket and confirmation allegedly delivered to Byrd as to whether it complied with the notice requirements under the convention. Finally, Plaintiffs clearly refute Comair's arguments

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that St. Lucia may be deemed to be a signatory to the Warsaw Convention, but they do not respond to Comair's claim that the conventions are applicable even if St. Lucia is not a signatory party.


A. Background of Warsaw and Montreal Conventions' Provisions Regarding Bodily Injury Resulting From An Accident While On Board the Aircraft

1. Warsaw Convention

When the Warsaw Convention was drafted in 1929, "the airline industry was in its infancy." Ehrlich v. American Airlines, Inc., 360 F.3d 366, 370 (2d Cir.2004) (quoting In re Air Disaster at Lockerbie, Scotland on December 21, 1988, 928 F.2d 1267, 1270 (2d Cir.1991)) (overruled on other grounds by Zicherman v. Korean Air Lines Co., 516 U.S. 217, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996)).

The convention had two primary goals: first, to establish uniformity in the aviation industry with regard to "the procedure for dealing with claims arising out of international transportation and the substantive law applicable to such claims," as well as with regard to documentation such as tickets and waybills; second — clearly the overriding purpose — to limit air carriers' potential liability in the event of accidents.

Id. The Convention preamble states the signatories `.'recognized the advantage of regulating in a uniform manner the conditions of international transportation by air in respect of the documents used for such transportation and of the liability of the carrier." 49 Stat. 3014. The United States Supreme Court recognized that the primary purpose of the contracting parties was "limiting the liability of air carriers in order to foster the growth of the fledgling commercial aviation industry." Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 545, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991).

With respect to personal injury, the Warsaw Convention was a compromise between carriers and passengers providing, generally, strict liability for bodily injury to a passenger while on board or during embarking or disembarking, but capping that liability at approximately $8,300 unless the passenger could prove the carrier engaged in willful misconduct. El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 170, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999); 1999 WL 33292734, September 6, 2000 Letter of Transmittal from the White House to the Senate. Article 17 provided:

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 or in the course of any of the operations of embarking or disembarking.

The Montreal Accord3 modified the scheme in 1966 by raising the liability cap to $75,000. Lockerbie, 928 F.2d at 1270, n. 2. The Montreal Protocol No. 44 amended...

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    • United States
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    • July 9, 2014
    ...Plaintiffs' flights involved international carriage as defined by the Montreal Convention. See, e.g., In re Air Crash at Lexington, Ky., Aug. 27, 2006, 501 F.Supp.2d 902, 908 (E.D.Ky.2007) (determining that the Montreal Convention applies to a “round-trip ticket from the United States with ......
  • Irabor v. Lufthansa Airlines, Civil Action No. 19-12087-FDS
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    • December 5, 2019; Knowlton v. American Airlines, Inc. , 2007 WL 273794, at *3-5 (D. Md. Jan. 31, 2007) (same); In re Air Crash at Lexington , 501 F. Supp. 2d 902, 909-913 (E.D. Ky. 2007) (same). Courts that have considered the preemptive effect of the Montreal Convention's predecessor treaty, the Wa......
  • Jane Doe v. Etihad Airways
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    • U.S. Court of Appeals — Sixth Circuit
    • August 30, 2017
    ...Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. 876, 137 L.N.T.S. 11 (Warsaw Convention); In re Air Crash at Lexington, Ky. , 501 F.Supp.2d 902, 907–08 (E.D. Ky. 2007) (noting that "the 'common law' of the Warsaw jurisprudence is vitally important to understanding the meaning of t......
  • Aikpitanhi v. Iberia Airlines of Spain
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    ...Ltd., 83 F.3d 127 (6th Cir.1996), vacated in part on separate issue, 96 F.3d 151 (6th Cir. 1996); see In re: Air Crash at Lexington, Kentucky, 501 F.Supp.2d 902, 910 (E.D.Ky.2007) (noting 5. Plaintiffs mistakenly state in their response that Article 33(1) allows a suit to be brought against......
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1 books & journal articles
  • Recent developments under the Montreal Convention.
    • United States
    • Defense Counsel Journal Vol. 77 No. 4, October 2010
    • October 1, 2010
    ...360 F.3d 366, 371 n. 4 (2d Cir. 2004)). (3) Montreal Convention, Preamble; see In re Air Crash at Lexington, Kentucky, August 27, 2006, 501 F. Supp.2d 902, 907 (E.D. Ky. 2007); Serrano v. Am. Airlines, Inc., No. 82256, 2008 WL 2117239 (C.D. Cal. May 15, 2008)(citing Weiss v. El A1 Israel Ai......

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