Von Schoenebeck v. Koninklijke Luchtvaart Maatschappij N.V.

659 F. App'x 392

Opinions

MEMORANDUM

Footnotes

•

**

Johanna and Andreas von Schoenebeck (“the von Schoenebecks”) appeal the district court’s Rule 12(b)(6) dismissal of their action under the Montreal Convention against Koninklijke Luchtvaart Maat-schappij N.V., doing business as KLM Royal Dutch Airlines (“KLM”). We have jurisdiction under 28 U.S.C. § 1291. We affirm.

The district court correctly determined that the von Schoenebecks’ Montreal Convention claim is untimely. Under Article 29 of the Montreal Convention, “any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention.” Convention for the Unification of Certain Rules for International Carriage by Air art. 29, May 28, 1999, S. Treaty Doc. No. 106-45 (“Montreal Convention”). One such “limit[ ] of liability” is contained in Article 35(1), which provides:

The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

Id. art. 35(1). “Taken together, Articles 29 and 35(1) require that a claim for damages under the Convention must be filed within two years of the date upon which the aircraft arrived, or ought to have arrived, at its destination.” Narayanan v. British Airways, 747 F.3d 1125, 1128 (9th Cir. 2014).

The von Schoenebecks’ aircraft arrived in San Francisco on August 26, 2008, and they were scheduled to arrive at their final destination of Johannesburg, South Africa on November 24, 2008. The von Schoene-becks filed this action more than two years later, on October 25, 2013. Therefore, the von Schoenebecks’ claim for damages under the Montreal Convention is time-barred. See Montreal Convention arts. 29, 35(1).

The von Schoenebecks’ action is not made timely by virtue of the fact that Ms. von Schoenebeck filed an action against KLM in the High Court of South Africa on August 4, 2010. Taking Articles 29 and 35(1) together, as we must, see Narayanan, 747 F,3d at 1128, the Montreal Convention clearly bars “any action for damages” brought after the “period of two years,” Montreal Convention arts. 29, 35(1) (emphasis added). See also Narayanan, 747 F.3d at 1129 (explaining that “any lingering confusion” about the text of Article 35(1) is “further alleviated by Article 29”). Whether or not Ms. von Schoene-beck’s action in South Africa was brought within the two-year period, the instant action plainly was not. As such, this action is untimely. See Montreal Convention arts. 29, 35(1).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.