In what circumstances is the statute of limitations under the Montreal Convention tolled by reason of a bankruptcy stay?

Article 35 — Limitation of Actions

1. 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.

2. The method of calculating that period shall be determined by the law of the court seised of the case.

In arguing for dismissal, defendants cite to a line of cases regarding the characterization of the two-year limitation. Although there is a scarcity of precedent discussing Article 35 of the Montreal Convention, which entered into force in 2003, cases considering the effect of Article 35 look to prior case law interpreting an identical provision in Article 29 of the Warsaw Convention, which was the predecessor to the Montreal Convention.⁴ See Mateo v. JetBlue Airways Corp., 847 F.Supp.2d 383, 388 (E.D.N.Y.2012) ; Duay v. Cont'l Airlines, Inc., Civ. Action No. H–10–CV–1454, 2010 WL 5342824, at *4 & n. 4 (S.D.Tex. Dec. 21, 2010) ; see also George N. Tompkins, Jr., Liability Rules Applicable to International Air Transportation as Developed by the Courts in the United States 267 (2010). The most cited of these precedents is Fishman v. Delta Air Lines, Inc., 132 F.3d 138 (2d Cir.1998), in which the Second Circuit deemed the two-year limitation in Article 29 a “condition precedent to suit” and affirmed the lower court's conclusion that it was not subject to a state-law provision allowing tolling for a plaintiff's infancy. Id. at 143–45. In Fishman, the Second Circuit looked to the treaty's legislative history, which revealed that “the drafters of the Convention specifically considered and rejected a proposed provision that would have allowed the limitations period to be tolled according to the law of the forum court.” Id. at 144. In holding that tolling was unavailable under

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Article 29, the Second Circuit emphasized that “the main concern of the drafters in rejecting the tolling proposal was ‘to remove those actions governed by the Convention from the uncertainty which would attach were they to be subjected to the various tolling provisions of the laws of the member states.’ ” Id. (quoting Kahn v. Trans World Airlines, Inc., 82 A.D.2d 696, 443 N.Y.S.2d 79, 87 (1981) ). A number of other courts have followed the reasoning in Fishman to find tolling unavailable under Article 29 of the Warsaw Convention. Redl v. Nw. Airlines, Inc., 22 Fed.Appx. 652, 654 (8th Cir.2001) (holding Art. 29 not subject to equitable tolling); Sanchez Morrabal v. Omni Air Servs., Co., 497 F.Supp.2d 280, 285 & n. 10 (D.P.R.2007) ( “[Art. 29] has been consistently interpreted by federal courts as a condition precedent to suit and thus not subject to tolling.”); McCaskey v. Cont'l Airlines, Inc., 159 F.Supp.2d 562, 580–81 (S.D.Tex.2001) (holding Art. 29 not subject to state-law tolling provision for fraudulent concealment).

Following the Fishman line of cases, the few cases so far decided under the Montreal Convention consider it fairly well settled that the limitation provision in Article 35 creates a condition precedent to suit, rather than a statute of limitations, and is therefore not subject to tolling. See Mateo, 847 F.Supp.2d at 387–88 (holding two-year limitation “not subject to tolling”); Duay, 2010 WL 5342824, at *4–*5 (same); Dickson v. Am. Airlines, Inc., 685 F.Supp.2d 623, 627 (N.D.Tex.2010) (finding limitation to be a “repose provision” or “condition precedent” not subject to tolling); cf. Am. Home Assurance Co. v. Kuehne & Nagel (A.G. & Co.) KG, 544 F.Supp.2d 261, 263 (S.D.N.Y.2008) (although not addressing availability of tolling, finding that “the two-year period of limitation constitutes a condition precedent—an absolute bar—to bringing suit”) (quotation marks omitted); but see Smith–Ligpn v. British Airways Worldwide, Civ. Action No. 11–7437, 2012 WL 1382468, at *3 (E.D.Pa. Apr. 20, 2012) (referring to two-year limitation as a “statute of limitations” that is a “condition precedent to bringing suit”).

B. Applicability of Local Tolling Provisions to Warsaw Convention Time Limitations.

Plaintiffs' filing of suit more than two years after their flight's arrival in New York exceeds the time limitation fixed in Article 29 of the Convention, subsection (1):

The right to damages shall be extinguished if an action is not brought within 2 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 transportation stopped.

49 U.S.C. § 40105 note. Plaintiffs contend however that under New York law, the two-year limitations period should be tolled during Penina's infancy, see N.Y. C.P.L.R. § 208 (McKinney 1990), and that such tolling is allowed under subsection (2) of Article 29, which provides:

The method of calculating the period of limitation shall be determined by the law of the court to which the case is submitted.

49 U.S.C. § 40105 note.

This tolling issue presents a preliminary but not necessarily controlling question as to whether the period is a statute of limitations or a condition precedent. Compare Molitch v. Irish Int'l Airlines, 436 F.2d 42, 43 (2d Cir.1970) (referring to Article 29(1) as a statute of limitations), with Kahn v. Trans World Airlines, Inc., 82 A.D.2d 696, 443 N.Y.S.2d 79, 87 (2d Dep't 1981) ("[T]he time limitation incorporated in article 29 was intended to be in the nature of a condition precedent to suit."). Ordinarily, a time limitation is deemed a condition precedent if it is fixed in the statute that creates the cause of action, whereas a statutory time limitation must be pleaded as the affirmative defense of statute of limitations if the cause of action was previously cognizable either at common law or by virtue of another statute. See Romano v. Romano, 19 N.Y.2d 444, 447, 280 N.Y.S.2d 570, 227 N.E.2d 389 (1967); Clark v. Abbott Labs., 155 A.D.2d 35, 553 N.Y.S.2d 929, 933 (4th Dep't 1990). We have already held that the Warsaw Convention creates the causes of action asserted under it. See Benjamins v. British European Airways, 572 F.2d 913, 919 (2d Cir.1978) (Lumbard, J.); see also Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 12 (2d Cir.1996). Accordingly, the time limitation in Article 29 is best termed a condition precedent to suit, a kind of limitation that is often deemed not subject to tolling. See Cohen v. Pearl River Union Free School Dist., 51 N.Y.2d 256, 264, 434 N.Y.S.2d 138, 414 N.E.2d 639 (1980); Dreger v. New York State Thruway Auth., 177 A.D.2d 762, 575 N.Y.S.2d 743, 744 (3d Dep't 1991).

The district court determined that the language of Article 29 was ambiguous, and therefore based its conclusion that tolling was inappropriate on an analysis of the negotiating history of the treaty. Plaintiffs argue that the Warsaw Convention is unambiguous; that it unambiguously allows tolling under the rules of the forum; that these conclusions were reached by the French Cour de

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Cassation; and that the construction of the tolling provision by that court is particularly persuasive because the Convention was drafted in French. We reject all of these propositions.

In interpreting the Warsaw Convention, we look first to the literal language of the treaty and go no further if that language is reasonably susceptible to no more than one interpretation. See Tai Ping Ins. Co. v. Northwest Airlines, Inc., 94 F.3d 29, 31 (2d Cir.1996). We agree with the district court that the language of Article 29 is reasonably susceptible to conflicting interpretations. See Fishman, 938 F.Supp. at 230. On the one hand, as plaintiffs argue, the wording in Article 29(2) that leaves to the forum the "method of calculating the period of limitations" could be taken to encompass the forum's tolling provisions. Three district court opinions have so held. See Halmos v. Pan American World Airways, Inc., 727 F.Supp. 122, 123 (S.D.N.Y.1989); Joseph v. Syrian Arab Airlines, 88 F.R.D. 530, 532 (S.D.N.Y.1980); Flanagan v. McDonnell Douglas Corp., 428 F.Supp. 770, 776 (C.D.Cal.1977); see also Royal Ins. Co. v. Emery Air Freight Corp., 834 F.Supp. 633, 635 (S.D.N.Y.1993) ("method of calculating" language "could be interpreted as allowing local statutes of limitations to modify the two-year limitations period"). On the other hand, the same wording can be read merely to invoke the power of the forum court to determine whether the plaintiff accomplished the filing within the limitation period, a question that may involve (for example) the proper party or agent for receipt of process, and the means of service--in other words, matters bearing upon when an action has been "brought." One court has concluded that this is the clear and unambiguous meaning of the Article 29 language. See Data General Corp. v. Air Express Int'l Co., 676 F.Supp. 538, 540 (S.D.N.Y.1988).

Because the language of Article 29 is susceptible to at least two plausible interpretations, we turn to the negotiating history of the Convention to resolve the ambiguity. See Tai Ping Ins. Co., 94 F.3d at 31 (When the text of a treaty is unclear, "[w]e may apply traditional methods of interpretation."). The Supreme Court has explicitly sanctioned the use of a treaty's legislative history to understand its meaning. See Zicherman v. Korean Air Lines Co., 516 U.S. 217, ----, 116 S.Ct. 629, 634, 133 L.Ed.2d 596 (1996) ("Because a treaty ratified by the United States is not only the law of this land ..., but also an agreement among sovereign powers, we have traditionally considered as aids to its interpretation the negotiating and drafting history (travaux preparatoires) and the post-ratification understanding of the contracting parties."); Saks, 470 U.S. at 396, 105 S.Ct. at 1340 ("Treaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.") (quoting Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-32, 63 S.Ct. 672, 677-78, 87 L.Ed. 877 (1943)).

Almost every court that has reviewed the drafting minutes of the Convention, including the district court in this case, has rejected the contention that Article 29(2) incorporates the tolling provisions otherwise applicable in the forum. See, e.g., Castro v. Hinson, 959 F.Supp. 160, 163 (E.D.N.Y.1997); Fishman, 938 F.Supp. at 230; Royal Ins. Co., 834 F.Supp. at 636; Kahn, 443 N.Y.S.2d at 87. The minutes reveal that the drafters of the Convention specifically considered and rejected a proposed provision that would have allowed the limitations period to be tolled according to the law of the forum court. See R.C. Horner and D. Legrez, Minutes of the Second International Conference on Private Aeronautical Law, 110-13 (1975); Kahn, 443 N.Y.S.2d at 86-87; Royal Ins. Co., 834 F.Supp. at 636. As the district court recognized, the main concern of the drafters in rejecting the tolling proposal was "to remove those actions governed by the Convention from the uncertainty which would attach were they to be subjected to the various tolling provisions of the laws of the member states." Kahn, 443 N.Y.S.2d at 87. Moreover, the debates over the language ultimately adopted in Article 29 indicate that the only matter to be referred to the forum court by subsection 2 of Article 29 was "the determination of whether the plaintiff had taken the necessary measures within the two-year period to invoke that particular court's jurisdiction over the action." Id.

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Plaintiffs focus on the minutes of the negotiating session that followed the one in which the drafters discussed and rejected the proposal to amend Article 29 to permit tolling. Plaintiffs say that these minutes raise difficult questions regarding the intent behind Article 29, and the significance to be accorded the rejection of the tolling proposal. These passages from the minutes are far from clear, and they seem hardly relevant. An amendment was proposed that would have expressly allowed what plaintiffs want to do; a reason for rejecting that proposal (the uncertainty of various tolling provisions would frustrate the strict two year limit) was clearly articulated; and the proposal was rejected on the merits. Subsequent statements by individual delegates, however ambiguous, do not alter our understanding of the intent behind the enactment of the language in Article 29. ²

Plaintiffs direct our attention to the decision of France's Cour de Cassation in Lorans v. Air France (Cour de Cassation [Assemblee Pleniere] Jan. 14, 1977). According to treatises cited by plaintiffs (no copy of the opinion was furnished to us), that court ruled that the running of the Article 29 time limitation can be suspended by reason of minority status. According to plaintiffs, the French court reasoned that in order for an international convention to replace municipal law, the text of the convention must unequivocally establish that the ordinarily applicable municipal law must be set aside. Plaintiffs also rely upon the argument articulated by the French First Avocat-General in Lorans, to the effect that since the Warsaw Convention was open to adhesion by states (like the United States) that were not party to the negotiations or the drafting of the text, those nations are bound only by the letter of the text. We are unpersuaded.

The Lorans decision proceeds along lines that are foreign to the principles of treaty construction adopted by our legal system. As we said above, United States courts look to the legislative history of a treaty when the textual language is ambiguous. Whether or not the United States was a High Contracting Party to the Warsaw Convention has no discernible bearing on the rules of construction set out by the Supreme Court and this Court. See Zicherman, 516 U.S. at ----, 116 S.Ct. at 634; Saks, 470 U.S. at 396, 105 S.Ct. at 1340; Tai Ping Ins. Co., 94 F.3d at 31.

Finally, plaintiffs raise for the first time on appeal causes of action based upon defendant's alleged breach of certain rules in the Code of Federal Regulations. These claims were not asserted in the complaint, and were never mentioned at any point in the district court proceedings. We will not consider them now. See Lo Duca v. United States, 93 F.3d 1100, 1104 (2d Cir.) (as a matter of prudence a federal appellate court generally will not consider an issue not passed upon below), cert. denied, --- U.S. ----, 117 S.Ct. 508, 136 L.Ed.2d 399 (1996).

The parties agree that the Montreal Convention³ governs plaintiff's negligence claim. Defendants argue that plaintiff's claim must be dismissed because it was not filed within two years of the date of the landing accident as required by Article 35 of the Montreal Convention. Article 35 contains a “limitation of actions” provision that provides:

1. 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....

2. The method of calculating that period shall be determined by the law of the court seized of the case.

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Ireland did not file suit until December 21, 2012, which was just shy of three years from the date of the accident upon arrival in Jamaica. Accordingly, defendants argue, his suit must be dismissed.

In opposition, plaintiff argues that the running of the two-year limitations period under Article 35 was suspended by the automatic stay that went into effect under section 362 of the Bankruptcy Code upon defendants' filing for bankruptcy on November 29, 2011. Plaintiff relies predominantly on section 108(c) of the Bankruptcy Code, which states in relevant part:

[I]f applicable nonbankruptcy law ... fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor ... and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of—

(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or

(2) 30 days after notice of the termination or expiration of the stay under section 362... with respect to such claim.

11 U.S.C. § 108(c). Plaintiff argues that, because the two-year period under Article 35 of the Montreal Convention had not yet expired when defendants filed for bankruptcy on November 29, 2011, section 108(c) operated to suspend the running of the two-year period. He submits that, under section 108(c)(2), he had until 30 days after he received notice of the expiration of the automatic stay to file his claim. Notice of the termination of the stay was not given until January 2, 2014—well after plaintiff filed his suit in December 2012. He thus argues that his time to file suit within the Article 35 limitation—what he refers to as a “statute of limitations”—did not run out prior to his bringing this action.

This court finds neither Okeke nor Husmann persuasive because neither decision gave serious consideration to whether the extension of time provided by 108(c) is available in a treaty case subject to the Article 29/Article 35 language. Moreover, this court is not bound by the decisions of the courts in those cases. It is, however, bound by the Second Circuit's holding in Fishman that the provision language—then found in Article 29 of the Warsaw Convention and now in Article 35 of the Montreal Convention—creates a condition precedent to suit, and that it is not subject to tolling. The court can find no reason why that holding would not apply to prevent the extension of the two-year Article 35 provision even by operation of section 108(c).

The concerns that led the Second Circuit to reject the availability of tolling under New York law in Fishman are equally applicable here. Looking to the legislative history of the provision that now constitutes Article 35 of the Montreal Convention, the Second Circuit agreed with the lower court's conclusion that it was the purpose of the provision's drafters to eliminate the uncertainty that would arise from actions under the treaty being “subjected to the various tolling provisions of the laws of the member states.” 132 F.3d at 144 (quoting Kahn, 443 N.Y.S.2d at 87 ). Although section 108(c) operates differently from a typical stop-the-clock tolling provision of the kind addressed in Fishman, it has the same effect as a tolling provision in that it acts to extend the statute of limitations beyond the date on which it would otherwise expire. See 9B Am.Jur.2d Bankruptcy § 1734. Subjecting actions under the treaty to this extension of time under section 108(c) creates the same risk of uncertainty that the drafters sought to avoid by creating a hard stop after two years at which time a plaintiff's rights under the treaty were extinguished. It makes little difference that this extension of time arises under federal bankruptcy law rather than state law, as the concern addressed by the treaty provision involved differences among the rules of member states who were parties to the treaty, not simply among the states within the United States. As the full title of the Montreal Convention suggests, it was the treaty's aim to unify the rules applicable to international air carriage between member states. See Fishman v. Delta Air Lines, Inc., 938 F.Supp. 228, 232 (S.D.N.Y.1996) (citing as a purpose of the predecessor Warsaw Convention “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”) (citation and quotation marks omitted). Under the language of the treaty, as interpreted by Fishman, the two-year limitation is a hard stop after which a plaintiff's right to sue is extinguished, and this court sees no reason to depart from this rule in the case of a bankruptcy stay.

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As regards plaintiff's policy argument that, if section 108(c) is not applied to extend the two-year limitation period, injured parties such as plaintiff will be unfairly prevented from asserting their claims under the Montreal Convention, the court finds this argument without merit. First, plaintiff argues that he would have been unable to file suit during the pendency of the bankruptcy stay, and yet he did precisely that. If he had filed suit within the two-year limitation period but after the filing of the bankruptcy petition, his action would have been stayed until it could proceed following the lifting of the stay, which is exactly what has occurred in this case. Moreover, although plaintiff here did not do so, he could have applied to the bankruptcy court to lift the stay for purposes of this suit. Second, it is difficult to see how any unfairness that might be worked here is different from the kind of unfairness inherent in situations where tolling on other statutory or equitable grounds is unavailable to extend Article 35's two-year limitation period. In rejecting local tolling provisions in favor of a hard-stop two-year limitation provision, the provision's drafters apparently concluded that the benefits of uniformity outweighed the risk of unfairness. This is why the Second Circuit held in Fishman that the two-year limitation period could not be tolled for a plaintiff's infancy despite any resulting unfairness, and this court cannot find any factor to materially distinguish the case at hand.

Because plaintiff did not file his complaint within the two-year period following the crash in Jamaica, his right to bring suit under the Montreal Convention was extinguished, and the defendants' bankruptcy did not operate to keep plaintiff's claim alive beyond the time period dictated by Article 35 of the Convention. As a result, plaintiff's suit cannot now go forward.

Article 35 of the Montreal Convention provides that “[t]he 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” and “[t]he method of calculating that period shall be determined by the law of the court seised of the case.” This limitations period “constitutes a condition precedent—an absolute bar—to bringing suit.” American Home Assur. Co. v. Kuehne & Nagel (AG & Co.) KG, 544 F.Supp.2d 261, 263 (S.D.N.Y.2008) (quoting Split End Ltd. v. Dimerco Express (Phils) Inc., No. 85–1506, 1986 WL 2199, at *6 (S.D.N.Y. Feb. 11, 1986)).

Under New York law, an action is commenced by filing of a summons and complaint. See C.P.L.R. § 304(a). Plaintiffs do not contest that by filing their initial complaint “on or around” July 28, 2010, Pl. Rule 56.1 St. ¶ 1, they commenced this action well over two years after the December 16, 2007, accident. They contend,

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however, that the limitations period should be tolled because Jetblue engaged in bad-faith settlement negotiations that lulled plaintiffs into missing the filing deadline.

The Convention's time limitation is not subject to tolling. See Fishman by Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 143 (2d Cir.1998) (holding that the Warsaw Convention's two-year limitation was not subject to tolling); Duay v. Continental Airlines, Inc., No. 1454, 2010 WL 5342824 at *4 (S.D.Tex. December 21, 2010) (holding that the Montreal Convention is not subject to tolling). Even if it were, the parties' negotiations would not entitle plaintiffs to equitable estoppel. “To be entitled to an estoppel, the plaintiff must show that by engaging in protracted settlement discussions, defendant intended to lull the plaintiff into inactivity and to induce plaintiff to continue negotiations until after the statute of limitations had run.” Murphy v. Wegman's Food Market, Inc., 140 A.D.2d 973, 529 N.Y.S.2d 648, 649 (4th Dep't 1988). Although Jetblue was engaged in settlement negotiations with Mateo, there is no evidence that the airline was negotiating in bad faith and “[m]ere evidence of communications or settlement negotiations ... either before or after the expiration of the limitations period is not, without more, sufficient to establish grounds for waiver or estoppel.” Stubbs v. Pirzada, 55 A.D.3d 597, 865 N.Y.S.2d 326, 327 (2d Dep't 2008).

Defendants urge that we affirm the dismissal of Campbell's claims on the alternative ground that his amended complaint was untimely because it was not filed within the Montreal Convention's two-year limitations period. We decline their invitation because Rule 15(c) allows Campbell's amended complaint to relate back to his timely original complaint.

Campbell filed his initial complaint on September 7, 2011, within the two-year limitations period. After the district court sua sponte dismissed without prejudice and with leave to file an amended complaint within fifteen days, Campbell filed an amended complaint on December 12, 2011, outside of the two-year window. Though the district court dismissed on other

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grounds, it noted that it was “inclined to reject the limitations' period argument, because it would be patently unfair to bar a plaintiff's suit on the basis of the limitations period where the initial Complaint was filed within the applicable period and dismissed without prejudice to refile.”

Article 35 of the Montreal Convention specifies that “[t]he 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 arrive, or from the date on which the carriage stopped.” Montreal Convention art. 17, S. Treaty Doc. No. 106–45. But Article 35 also provides that “[t]he method of calculating that period shall be determined by the law of the court seised of the case.” Id. Meanwhile, Federal Rule of Civil Procedure 15(c) allows an amended pleading to relate back to the date of a complaint filed within the limitations period when “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.” Fed.R.Civ.P. 15(c)(1)(B). This condition for relation back is satisfied here because Campbell's original complaint alleged the same essential facts that formed the basis for the claims pled in his amended complaint. However, the parties dispute whether the Montreal Convention permits Rule 15(c) relation back.

Our Circuit has not previously addressed the application of Rule 15(c) to the two-year limit in the Montreal Convention or its predecessor, the Warsaw Convention. Courts that have confronted similar problems generally distinguish between two doctrines: tolling, deemed impermissible, and relation-back, considered to be consistent with the Convention. Tolling occurs when a party invokes equitable principles to stop the running of a statute of limitations so that an untimely claim may still be asserted. See, e.g., Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 706 (11th Cir.1998) (“ ‘Equitable tolling’ is the doctrine under which plaintiffs may sue after the statutory time period has expired if they have been prevented from doing so due to inequitable circumstances.”). With tolling, no claim need be filed within the limitations period. Courts have refused to apply local tolling rules to Convention claims. See, e.g., Husmann v. Trans World Airlines, Inc., 169 F.3d 1151, 1154 (8th Cir.1999); Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 143–45 (2d Cir.1998). By contrast, relation back can occur only when amendments are made to a timely filed claim that involved the same facts and circumstances. SeeFed.R.Civ.P. 15(c).

Therefore, when an original complaint is timely filed and the only effect of amendment is to allow the plaintiffs to conform their pleading to the requirements of the Convention, “[g]ranting leave to amend has no prohibited tolling effect.” Pennington v. British Airways, 275 F.Supp.2d 601, 606–07 (E.D.Pa.2003); see In re Air Crash Near Rio Grande P.R. on Dec. 3, 2008, 11–MD–02246–KAM, 2012 WL 3962906, at *3–4 (S.D.Fla. Sept. 11, 2012) (unpublished) (“[Plaintiffs] seek to bring a claim pursuant to the Montreal Convention, rather than state law, based upon the same conduct, transaction and occurrence set out in the original complaint. [Plaintiffs] seek to apply the relation-back doctrine, not tolling. ... Rule 15(c) permits application of the relation-back doctrine.”); Raddatz v. Bax Global, Inc., 07–CV–1020, 2008 WL 2435582 (E.D.Wis. June 16, 2008) (unpublished) (“[T]he court finds that Rule 15(c) applies to any amendments to Raddatz's original complaint and his cause of action would be timely under the two-year limitation period set forth in the Warsaw Convention.”). In

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Motorola, Inc. v. MSAS Cargo Int'l, Inc., 42 F.Supp.2d 952, 955–56 (N.D.Cal.1998), a district court refused to allow a plaintiff to use Rule 15(c) to add a new defendant after the limitation period expired. But, as a later court observed, “the real evil at issue in Motorola ... was the fact that the plaintiff ... was attempting to use the complaint amending mechanism of Rule 15(c) in order to commence an entirely new and separate suit against a party otherwise protected by the” limitations period. Pennington, 275 F.Supp.2d at 606. Here, where the alleged facts and the named defendants are consistent across the two complaints, there is “no prohibited tolling effect.” Id. at 607.

Our review of the Montreal Convention leads us to agree with this trend permitting Rule 15(c) relation-back in cases like Campbell's. Treaty interpretation starts with the text. Medellín v. Texas, 552 U.S. 491, 506, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008). But the language alone does not tell us whether Rule 15(c) concerns the method of calculating the two-year period, which the Convention leaves to the court of the forum. See Fishman, 132 F.3d at 144 (“[T]he language of Article [35] is reasonably susceptible to conflicting interpretations.”). Rule 15(c) does not involve computation in a narrow sense, which could cover only questions like the time of day by which filings must be entered. But Rule 15(c) does address the calculation of the limitations period for amended claims when a plaintiff raised similar issues in an earlier filing.

When the text is ambiguous, we turn to the treaty's drafting history. Saks, 470 U.S. at 396, 105 S.Ct. 1338 (“Treaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.” (quoting Choctaw Nation of Indians v. United States, 318 U.S. 423, 431–432, 63 S.Ct. 672, 87 L.Ed. 877 (1943)); Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996)) (“Because a treaty ratified by the United States is not only the law of this land ..., but also an agreement among sovereign powers, we have traditionally considered as aids to its interpretation the negotiating and drafting history (travaux préparatoires) and the postratification understanding of the contracting parties.”).

The preliminary draft of the Warsaw Convention presented at a 1925 Paris conference on private aeronautical law provided that “[t]he method of calculating the period of limitation, as well as the causes of suspension and interruption of the period of limitation, shall be determined by the law of the court having taken jurisdiction.” Second International Conference on Private Aeronautical Law Minutes 267 (Robert C. Horner & Didier Legrez trans., 1975). In other words, the original version would have allowed the application of local tolling rules. At the 1929 Warsaw Conference, however, the Italian delegation proposed an amendment that would replace that provision in the interests of predictability and simplicity with “a plea in bar; that is to say, that after two years any action dies and is no longer admissable.” Id. at 110. The French delegation, while “not at all opposed to the Italian proposal,” noted that there was still a need to indicate that “the law of the forum court ... will fix how, within the period of two years, the court will be seized, because in all the countries of the world suits are not brought in the same way.” Id. at 111. The delegates ultimately voted to remove the allowance for forum courts to determine “the causes of suspension and interruption of the period of limitation.” But the delegates retained the provision instructing that “[t]he method of calculating the period shall be determined by the law of the court having taken jurisdiction.”

[760 F.3d 1177]

Id. at 219. This same language was carried over into Article 35 of the Montreal Convention.

This drafting history suggests that the delegates intended to avoid the application of tolling rules, which would make it “very difficult for the shipper ... to know when the interruption or suspension begins.” Id. at 110; see Fishman, 132 F.3d at 144 (“Almost every court that has reviewed the drafting minutes of the Convention, including the district court in this case, has rejected the contention that Article [35] incorporates the tolling provisions otherwise applicable in the forum.”). On the other hand, the delegates showed no opposition to principles of relation-back. To the contrary, the Italian delegation described its bright-line proposal as having the following effect: “if two years after the accident no action has been brought, all actions are extinguished.” Campbell did bring an action within two years, avoiding the foreseeability problems characteristic of tolling. Moreover, the adopted language specifically permits a forum court to set methods of calculating the two-year period. In sum, we agree with the consensus of courts that the Montreal Convention permits the application of Rule 15(c) relation back, at least when the amending plaintiff identifies the same defendants named in the original complaint. Campbell's amended complaint was timely under Article 35.

Finally, Plaintiffs' contention that Defendants have failed to establish that a French court will accept waiver of the Convention's statute of limitations is misplaced. Article 29(1) of the Convention provides that "The right to damages shall be extinguished if an action is not brought within 2 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 transportation stopped." 49 U.S.C. § 40105 note. Plaintiffs cite Husmann v. Trans World Airlines, Inc., 169 F.3d 1151 (8th Cir.1999) and Fishman v. Delta Air Lines, Inc., 132 F.3d 138 (2d Cir.1998) for the proposition that satisfaction of Article 29 is a condition precedent to suits, and not subject to tolling agreements or waivers, as it goes to a court's treaty jurisdiction.

Husmann and Fishman, however, do not compel dismissal of the motion. First, in those cases plaintiffs had failed to file their initial claims in time to satisfy the statute of limitations of Article 29, and argued, unsuccessfully, that the statute of limitations had been tolled by bankruptcy filings (Husmann) and infancy (Fishman). In the instant motion, by contrast, Plaintiffs have satisfied the Article 29 statute of limitations by timely filing their claims in the United States. Fishman and Husmann say nothing about whether the statute of limitations is not satisfied when a timely filed action in a United States court is dismissed and refiled in a foreign court at a point when the statute of limitations would have run had the claim never been previously filed.

Second, the decision would be for a French court to make, and any decisions of United States courts on the issue would not be binding.

Third, Defendants have provided the expert affidavit of Philipe Delebecque, a French attorney and professor of Civil Procedure and Transportation law, who concludes that the courts of France will not deem the refiling of the French Actions in such courts to be time-barred by the Convention. In the alternative, Professor Delebecque concludes that Defendants' waiver of any statute of limitations defense would enable a French court to adjudicate the French Actions. Unlike Plaintiffs' claims regarding French law, which are merely conjectural, Professor Delebecque provides specific statutory authority in support of his conclusions.