SUSHEELA NARAYANAN, individually and as Successor-in-interest to Papanasam Narayanan, deceased, on behalf of the Heirs and Estate of Papanasam Narayanan; TARA CASTRO NARAYANAN; RANJIT NARAYANAN, Plaintiffs-Appellants,
BRITISH AIRWAYS, Defendant-Appellee
Argued and Submitted, Pasadena, California: February
Appeal from the United States District Court for the Central District of California. D.C. No. 2:11-cv-02175-JFW-CW. John F. Walter, District Judge, Presiding.
Gerald C. Sterns (argued), Sterns & Walker, Oakland, California; Fred M. Isaacs, Lake Oswego, Oregon, for Plaintiffs-Appellants.
Scott D. Cunningham (argued) and Natasha N. Mikha, Condon & Forsyth LLP, Los Angeles, California, for Defendant-Appellee.
Before: Harry Pregerson, William A. Fletcher, and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge Nguyen; Dissent by Judge Pregerson.
NGUYEN, Circuit Judge:
Panansam Narayanan (" Narayanan" ) suffered from an advanced-stage lung disease. While aboard a British Airways international flight, he was allegedly denied supplemental oxygen. Narayanan died six months after the plane landed. Plaintiffs, Narayanan's heirs and estate, filed this lawsuit under the Montreal Convention (the " Convention" ), alleging that the denial of oxygen hastened Narayanan's death. The action was filed on March 7, 2011--more than two years from the date of the flight's arrival, but within two years of Narayanan's death.
The district court dismissed the complaint as untimely because Article 35(1) of the Convention requires a claim for damages under the Convention to be filed within two years of the date upon which the aircraft arrived, or ought to have arrived, at its destination. In an issue of first impression in our circuit, we must decide whether Article 35(1)'s strictures apply equally to a claim which had not yet accrued at the time that the Convention's two-year limitations period was triggered. We hold that, under the plain language of the Convention, the answer is yes. Therefore, Plaintiffs' claim was untimely.
On December 26, 2008, Narayanan boarded a British Airways flight from Los Angeles, California, to Bangalore, India, with an intermediate stop in London, England. Narayanan, who suffered from an advanced-stage, terminal lung disease, required supplemental oxygen during the flight. Having been advised of his condition prior to boarding, British Airways assured Narayanan that he would have access to his supplemental oxygen. However, during the flight from Los Angeles to London, British Airways denied Narayanan access to this oxygen. Upon arriving in London, Narayanan sought medical attention and was cleared to continue onto Bangalore. He received further medical treatment in India, as well as in the United States following his return on January 16, 2009. However, his health continued to deteriorate and, on June 11, 2009, Narayanan died.
On March 7, 2011, Narayanan's widow and two adult children filed a claim against British Airways under Article 17(1) of the Convention, alleging that the denial of supplemental oxygen on his flight to London hastened Narayanan's death. They sought general, special, and survival damages for this claim.
British Airways removed the case to federal court and moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that the complaint was time-barred under the two-year limitation period established by Article 35(1) of the Convention because the flight at issue arrived on December 26, 2008, and the complaint
was not filed until March 7, 2011. The district court agreed and dismissed the complaint with prejudice. This appeal followed.
Standard of Review
We review de novo the district court's grant of a motion to dismiss under Rule 12(b)(6), accepting all factual allegations in the complaint as true and construing them in the light most favorable to the nonmoving party. Newdow v. Lefevre, 598 F.3d 638, 642 (9th Cir. 2010).
The Convention, which governs " all international carriage of persons, baggage or cargo performed by aircraft for reward," provides the exclusive remedy for international passengers seeking damages against airline carriers. Convention for the Unification of Certain Rules for International Carriage by Air art. 1(1), May 28, 1999, S. Treaty Doc. No. 106-45 (hereinafter " Montreal Convention" ). In interpreting this Convention, we begin by looking to its text. Medellin v. Texas, 552 U.S. 491, 506, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008).
Article 17(1) of the Convention provides that a carrier is " liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking." Montreal Convention art. 17(1). We have defined an " accident" for purposes of Article 17 as " an unexpected or unusual event or happening that is external to the passenger." Phifer, 652 F.3d at 1223 (quoting Air France v. Saks, 470 U.S. 392, 405, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985)). The parties do not dispute that ...