In Duay v. Continental Airlines, Inc. (S.D. Tex. Dec. 21, 2010) the plaintiff, a Swiss citizen, when arriving in Texas on a Continental flight from Switzerland on December 2, 2007 discovered that his custom-fitted wheelchair had been damaged. He was provided with a replacement wheelchair which he claims did not fit his body properly and caused him skin irritation. On December 17, 2007, after having returned to Switzerland, the plaintiff attended a doctor’s appointment. Upon examination, he learned that he had sustained a skin irritation injury that would ultimately require hospitalization and surgery. However, he did not file his complaint until December 18, 2009. He alleged claims against Continental for negligence, bailment, and breach of contract. Continental contended that Duay’s claims are barred by the Montreal Convention’s two year statute of limitations. The plaintiff aurgued that the method of calculating the limitations period is determined by Texas law. Thus, he contended that the Texas discovery rule tolled the accrual of the limitations period on his claims until the time he visited his doctor and discovered his injuries.The court dismissed the claim and held that subjecting the Article 35(1) two-year period to the “various tolling provisions of the member states” would be contrary to the Montreal Convention’s policy goal of achieving uniformity of the rules governing international air transportation claims. Furthermore the Texas discovery rule did not apply where the accrual of a limitation period was “specifically defined by law,” and Article 35(1) “unequivocally” prescribed the accrual date as the date of the arrival of the flight.Full opinion of Dec. 21, 2010 available here>>.
