The Continuing Debate Regarding Complete Preemption And The Warsaw/Montreal Convention

In the United States, there has been uncertainty for decades in respect of the Montreal Convention 1999 ("the Montreal Convention") and the Montreal Convention's predecessor, the Warsaw Convention 1929 ("the Warsaw Convention"). This uncertainty stems from divergent United States court decisions as to the application of a doctrine called complete preemption to certain claims that are not expressly brought pursuant to the Conventions, but fall within the Conventions' scope.

With little binding precedent on the issue, differences in individual judges' interpretation of the Conventions have led to divergent opinions issued by different judges, sometimes in the same court, leading to unnecessary confusion as to whether US federal courts can hear these claims.

The Warsaw and Montreal Conventions

Like its predecessor, the Montreal Convention is a treaty that governs air carrier liability in the international transportation by air of passengers, baggage and cargo. Specifically, Articles 17 through 19 of the Convention address an air carrier's liability for death and injury to passengers "[taking] place on board the aircraft or in the course of any of the operations of embarking or disembarking," for damage to checked baggage and cargo when such checked baggage and cargo is in the air carrier's charge, and for "delay in the carriage by air of passengers, baggage, or cargo."

Prior to the Montreal Convention going into effect in 2003, the Warsaw Convention, the Montreal Convention's predecessor, had been subject to four Protocols amending its original text, one supplementary Convention, denunciation by the United States (subsequently withdrawn) and supplemental "private" agreements amongst carriers. Signed in 1999 and ratified in 2003, the Montreal Convention sought to update and "'harmonize the hodgepodge of supplementary amendments and intercarrier agreements of which the Warsaw Convention system of liability consists", and, like the Warsaw Convention, sought to achieve uniformity of the rules governing international carriage.

In US courts, an issue arose as to whether plaintiffs, asserting a claim within the Conventions' scope, must assert a claim pursuant to the Warsaw/Montreal Convention or whether they could assert any claim consistent with the Conventions. This is a significant issue because it could determine what court possesses jurisdiction to hear a plaintiff's claim.

The doctrine of complete pre-emption

Pursuant to its authority to determine the scope of federal courts' jurisdiction within the limits of Section 2 of Article III of the Constitution, the United States Congress enacted 28 U.S.C. § 1331, which provides federal district courts with original jurisdiction, known as "federal question" jurisdiction, over "all civil actions arising under the Constitution, laws, or treaties of the United States." Further, pursuant to 28 U.S.C. § 1332, federal district courts also possess original jurisdiction, known as "diversity jurisdiction," over civil actions between citizens of different states where the amount in controversy exceeds US$75,000.

Although the plaintiff, as the master of his/her complaint, can choose between filing an action in state or federal court, in general a defendant may remove an action filed in state court to federal court pursuant to 28 U.S.C. § 1441, which provides in pertinent part:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. Thus, generally, where a federal court has federal question or diversity jurisdiction (among other bases for original jurisdiction), a defendant may evoke 28 U.S.C. § 1441 to remove a case from state court to federal court.

However, under the "well-pleaded complaint rule," federal question jurisdiction does not exist unless a plaintiff affirmatively alleges a federal claim in his/her complaint (Caterpillar v. Williams, 482 U.S. 386, 392 (1987)). Thus, a plaintiff can avoid federal question jurisdiction by exclusively relying on state law in asserting his or her claims. An exception to the well-pleaded complaint rule is the doctrine of "complete preemption," which applies when "the pre-emptive force of [a federal law] is so powerful as to displace entirely any state cause of action [addressed by that law]." (Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 7 (2003) ("Beneficial")).

The Beneficial decision is the latest United States Supreme Court decision addressing the "complete preemption doctrine." In holding that provisions of the...