Skip to main content


Reset A A Font size: Print

United States District Court, M.D. Florida,

Jabbar R. PETTAWAY and Tchernavia L. Pettaway, Plaintiffs, v. MIAMI AIR INTERNATIONAL, INC., Defendant.

Joy Lail, et al., Plaintiffs, v. Miami Air International, Inc., Defendant.

Case No. 3:22-cv-139-TJC-MCR, Case No. 3:21-cv-413-TJC-JBT

Decided: August 31, 2022

Barry Edward Newman, Newman Legal Group, P.A., Jacksonville, FL, Galen D. Bauer, Keith L. Maynard, Robert F. Spohrer, Spohrer & Dodd PL, Jacksonville, FL, for Plaintiffs in 3:22-cv-139-TJC-MCR. Lee P. Teichner, Holland & Knight, LLP, Miami, FL, Joshua Royas Levenson, Holland & Knight, LLP, Fort Lauderdale, FL, for Defendant. Galen D. Bauer, Robert F. Spohrer, Keith L. Maynard, Spohrer & Dodd PL, Jacksonville, FL, for Plaintiffs in 3:21-cv-413-TJC-JBT.


These cases arise from an airplane accident. In each suit, the plaintiffs—passengers aboard the airplane during the accident—allege similar facts about the incident but bring their damages claims under different legal grounds against the airplane's owner and operator, Miami Air International, Inc. (Compare Doc. 1 in 3:21-cv-413 and Doc. 7 in 3:22-cv-139). In the earlier-filed case, Lail, the plaintiffs bring one claim under the Convention for the Unification of Certain Rules for International Carriage by Air, a.k.a. the Montreal Convention. (Doc. 1 at ¶¶ 47–53 in 3:21-cv-413). In the later-filed case, Pettaway, the plaintiffs bring their claims under Florida law. (Doc. 7 at ¶¶ 51–61 in 3:22-cv-139).

Both cases are before the Court on motions that require the Court to determine whether the Montreal Convention controls each case. (See Doc. 60 in 3:21-cv-413 and Doc. 11 in 3:22-cv-139). Pettaway is before the Court on Defendant Miami Air's Motion to Dismiss with Prejudice Plaintiffs’ Complaint. (Doc. 11 in 3:22-cv-139). Lail is before the Court on the plaintiffs’ Motion to Amend Complaint. (Doc. 60 in 3:21-cv-413). The Court previously stayed Lail while both motions were pending. (Doc. 62 at 2–3 in 3:21-cv-413). Because the Court resolves those motions here, Lail is reopened. The Court also rules on the other motions that were pending before the Court stayed Lail, which include Miami Air's Motion to Dismiss and Motion for Partial Summary Judgment. (Docs. 16 and 54 in 3:21-cv-413).


The factual allegations in Pettaway and Lail are similar. Both involve claims by passengers who were aboard commercial Flight 293 on May 3, 2019. (Doc. 1 at ¶¶ 15–46, 48 in 3:21-cv-413; Doc. 7 at ¶¶ 11–48 in 3:22-cv-139).1 The complaints allege that Flight 293 took off from the Naval Station at Guantanamo Bay, Cuba, and arrived at Naval Air Station Jacksonville, Florida—only as the plane attempted to land, it veered off the runway, crashed through a rock wall, and landed in the St. John's River. Id. “[A]s a direct and proximate result” of the Flight 293 incident, the plaintiffs in both cases allege they suffered bodily injuries, along with “pain,” “suffering,” and “mental anguish,” among other harms. (Doc. 1 at ¶ 52 in 3:21-cv-413; Doc. 7 at ¶ 49 in 3:22-cv-139).

Just shy of two years after the incident, on April 15, 2021, the Lail plaintiffs filed their complaint in this Court, bringing a single claim under the Montreal Convention for their alleged damages. (Doc. 1 at ¶¶ 2, 47–53 in 3:21-cv-413). The Pettaways filed their suit later in state court on December 20, 2021, and brought four state law claims: Crew Negligence (Count 1), Vicarious Liability (Count 2), Miami Air's Negligence (Count 3), and Loss of Consortium (Count 4). (Doc. 7 at ¶¶ 51–61 in 3:22-cv-139). Unlike the Lail complaint, the Pettaways affirmatively plead that the Montreal Convention does not apply to their claims because Flight 293 “was not international carriage.” Id. at ¶ 9. The Pettaways allege that Guantanamo Bay, the place of Flight 293's departure, constitutes a domestic location of the United States due to its unique legal status and history with the United States:

The whole law of the State of Florida governs all aspects of the claim. The flight was not international carriage as defined and/or intended under either the Warsaw or Montreal Conventions. Naval Air Station Guantanamo is under the complete jurisdiction and control of the United States of America and has been so held for over one hundred years. The United States Supreme Court has characterized the nation's interest as de facto sovereignty over this territory. And has held that ‘in every practical sense, Guantanamo is not abroad.’

Id. (emphasis added) (footnotes omitted). Comparatively, the Lail plaintiffs allege that Flight 293 was an “international charter flight from Naval Station Guantanamo Bay, Cuba,” that “Naval Station Guantanamo Bay is a military base operated by the U.S.A.” and that “[w]hile the U.S.A. has complete control over Naval Station Guantanamo Bay, the leased land remains within the ultimate sovereignty of Cuba,” and thus the Montreal Convention applies to the Lail plaintiffs’ claims arising from Flight 293. (Doc. 1 at ¶¶ 1–7, 12–13 in 3:21-cv-413).

Soon after the Pettaways filed their complaint, Miami Air removed the action to this Court on the basis that the Montreal Convention applies to and completely preempts their state law claims. (Doc. 1 at ¶ 13 in 3:22-cv-139). In its Notice of Removal, Miami Air contends that Flight 293 constituted “international carriage” because it flew from Guantanamo Bay, despite the Pettaways’ pleading to the contrary. Id. at ¶¶ 15, 20–21. The Pettaways never challenged removal and Miami Air later moved to dismiss the Pettaways’ complaint on related grounds. (Doc. 11 at 5–17 in 3:22-cv-139). Around the same time, the Lail plaintiffs also moved to amend their complaint to add alternative state law claims on the same grounds as the Pettaways: the Montreal Convention does not apply to the Flight 293 incident because the plane flew from Guantanamo Bay, which constitutes a “territory” of the United States, not Cuba, under the Montreal Convention. (Doc. 60 at 3–6 in 3:21-cv-413). The Court stayed Lail during the pendency of each motion,2 and now the issue of whether the Montreal Convention applies to the plaintiffs’ claims arising from the Flight 293 incident is ripe.


The Court first resolves Miami Air's Motion to Dismiss filed in Pettaway (Doc. 11), to which the Pettaways responded (Doc. 17), and the parties replied (Docs. 20, 22). The Court held a hearing on July 12, 2022, the record of which is incorporated by reference. (Doc. 26). In seeking dismissal, Miami Air claims that Flight 293 was an international flight involving “international carriage” within the meaning of the Montreal Convention. (Doc. 11 at 9). Specifically, Miami Air argues that Guantanamo Bay, Cuba—Flight 293's place of departure—constitutes a territory of Cuba, therefore rendering Flight 293 international carriage. Id. at 9–17. Miami Air contends that the Montreal Convention applies and thus preempts the Pettaways’ state law claims. Id. at 17–19. Miami Air further seeks the benefit of the two-year time limitation in Article 35 of the Convention for bringing a claim. Id. at 19–20.

The Pettaways dispute that the flight constituted “international carriage.” (Doc. 17 at 6–7). Put differently, they submit that the Convention does not apply because Flight 293 was a domestic flight. Flight 293 was domestic, the Pettaways contend, because Guantanamo is a territory of the United States, not Cuba, under their reading of the Convention and based on the United States’ history and relationship with Guantanamo. Id. at 6–15. Accordingly, they argue they are not bound to pursue any claims arising from the Flight 293 incident under the Convention and their state law claims may proceed. Id. at 18. Otherwise, if the Montreal Convention applies to their claims, the Pettaways do not dispute its preemptive effect or the untimeliness of any claims they may bring under the Convention. (Doc. 26 at 23:5–23:12; 24:18–24:25).

A. Application of the Montreal Convention

The determinative issue is the applicability of the Montreal Convention, which “applies to all international carriage.” Montreal Convention, Article 1(1). The Montreal Convention is an international treaty that entered into force in the United States on November 4, 2003, and superseded another treaty commonly known as the Warsaw Convention. Ugaz v. Am. Airlines, Inc., 576 F. Supp. 2d 1354, 1360 (S.D. Fla. 2008). The Montreal Convention resulted from the effort of the United Nations “to reform the Warsaw Convention so as to ‘harmonize the hodgepodge of supplementary amendments and intercarrier agreements’ of which the Warsaw Convention system of liability consists.” Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 371 n.4 (2d Cir. 2004) (quoting Carl E. Fumarola, Note, Stratospheric Recovery: Recent And Forthcoming Changes In International Air Disaster Law And Its Effect On Air Terrorism Recovery, 36 Suffolk U. L. Rev. 821, 835 (2003)). Signed in 1929, the Warsaw Convention originated “to aid and assist the then-fledgling commercial airline industry,” and set “forth uniform rules for claims” arising from international air transportation. Marotte v. Am. Airlines, Inc., 296 F.3d 1255, 1258–59 (11th Cir. 2002) (citations omitted). Consistent with achieving uniformity, the Warsaw Convention provided the exclusive mechanism for personal injuries suffered on board an aircraft, because “recourse to local law ․ would undermine the uniform regulation of international air carrier liability that the Warsaw Convention was designed to foster.” El Al Isr. Airlines, Ltd. v. Tseng, 525 U.S. 155, 169, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999).

When the Montreal Convention arose with the intention to “modernize and consolidate the Warsaw Convention and related instruments,” it sought to “[r]ecognize[ ] the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution.” Montreal Convention, Preamble.4 It achieves this purpose by “address[ing] and limit[ing] liability for airline carriers,” while imposing a strict liability scheme in favor of passengers that preserves a plaintiff's right to recover losses up to a certain amount. Vanderwall v. United Airlines, Inc., 80 F. Supp. 3d 1324, 1331 (S.D. Fla. 2015); see Montreal Convention, Articles 17, 21; Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., Ltd., 522 F.3d 776, 789 (7th Cir. 2008); Siddiq v. Saudi Arabian Airlines Corp., No. 6:11–cv–69–Orl–19GJK, 2013 WL 2152566, at *5 (M.D. Fla. Jan. 9, 2013). Like the Warsaw Convention, “[t]he purpose of the Montreal Convention,” aims “to achieve uniformity of rules governing claims arising from international air transportation.” Llanes v. Iberia Air Lines of Spain, S.A., No. 08-21445-CIV-UNGARO, 2008 WL 11417407, at *2 (S.D. Fla. June 30, 2008) (quoting El Al Isr. Airlines, Ltd., 525 U.S. at 169, 119 S.Ct. 662) (internal quotation marks omitted). Therefore, when the Montreal Convention applies, it provides the exclusive means for passengers to seek damages. See Montreal Convention, Article 29 (“In the carriage of passengers ․ any action for damages ․ under this Convention ․ can only be brought subject to the conditions and such limits of liability as are set out in this Convention ․”). See also Pierre-Louis v. Newvac Corp., 584 F.3d 1052, 1056 (11th Cir. 2009); Jacob v. Korean Air Lines Co. Ltd., 606 F. App'x 478, 479–80 (11th Cir. 2015).5

Interpretation of an international treaty begins “with the words of the treaty in the context in which the words are used.” Pierre-Louis, 584 F.3d at 1058; see also Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 180, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982) (“The clear import of treaty language controls unless ‘application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.’ ”). “Other general rules of construction may be brought to bear on difficult or ambiguous passages” in treaties. E. Airlines, Inc. v. Floyd, 499 U.S. 530, 534, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991). That said, “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.” Id. (quotation marks omitted). In short, treaty interpretation starts with the text and may expand to the treaty's drafting history and the parties’ considerations. See Campbell, 760 F.3d at 1176 (interpreting the Montreal Convention).

Here, Article 1(1) of the Montreal Convention defines the treaty's reach: “This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward ․” Article 1, Section 2 defines international carriage as:

[A]ny carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.

(emphasis added). Said simply, “international carriage” means a flight must travel between the “territories” of two countries that are signatories to the Convention. See id. Flight 293 traveled from Naval Station Guantanamo Bay, Cuba to Naval Air Station Jacksonville in the United States. (Doc. 7 at ¶¶ 11, 22, 24). Cuba and the United States are signatories to the Convention. See International Civil Aviation Organization, List and Current Status of Int'l Air Law Multilateral Treaties, Montreal Convention (available at: 20of% 20parties/mtl99_en.pdf (last visited Aug. 30, 2022)).6 However, the words “territory” or “territories” are not defined in the Montreal Convention. (See Doc. 17 at 5; Doc. 20 at 4). Thus, the parties raise the issue of whether Guantanamo Bay constitutes a “territory” of Cuba or the United States under the Convention. (See Doc. 11 at 9–10; Doc. 17 at 7–8). No case law addresses this issue, so the Court faces a novel question.

The Court starts with the text of the Convention. Article 1(2)’s definition of “international carriage” focuses on the locations of the places of departure and arrival, requiring that such places be “situated” “within” the territories of the State Parties. Guantanamo Bay is situated within the country of Cuba, a State Party. The United States does not own Guantanamo Bay; rather, it leases the land comprising Guantanamo Bay from Cuba for its “coaling and naval stations.” (See Doc. 11 at 13; Doc. 17 at 8).7 The United States’ operation of a military base in a foreign country generally does not render that land a territory of the United States. See, e.g., Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993) (“As a threshold matter, a United States military base is not sovereign territory of the United States”); Gallaspy v. Raytheon Tech. Servs. Co., No. EP-04-cv-0012-FM, 2005 WL 1902534, at *5 (W.D. Tex. Aug. 9, 2005) (rejecting the application of a federal statute to a plaintiff's claims because the incident occurred on a United States’ military base in South Korea and holding that the land on which the base sat remained a “Korean territory”). Therefore, under the plain understanding of the word “territory” in the Convention, Guantanamo Bay is not a part of the United States.

Article 57 of the Convention comports with this reading. Article 57 precludes State Parties from making reservations under the Convention with two exceptions.8 First, under Article 57(a), a State Party may reserve from the Convention any international air carriage performed directly by the State Party for non-commercial purposes. Second, under Article 57(b), a State Party may reserve any chartered international air carriage leased by that State Party for its military authorities. In other words, a State Party can exempt from the Convention international flights performed by the State Party or privately chartered flights for its military.

The United States reserved the first exception, but not the second. See International Civil Aviation Organization, List and Current Status of Int'l Air Law Multilateral Treaties, Montreal Convention, n.7.9 The United States’ choice to exempt international flights performed by the United States—but not those leased for the United States’ military—is illustrated in Mertens v. Flying Tiger Line, Inc., 341 F.2d 851 (2d Cir. 1965).10 There, the Second Circuit held that an incident involving a chartered plane that traveled from Travis Air Force Base, San Francisco, California to the Tachikawa Air Force Base in Japan fell under the Warsaw Convention. Id. at 853–54. The Mertens court reasoned that there was “no doubt” that the flight “was ‘international” due to its travel between countries, regardless of flying between United States’ military bases. Id. Further, the court found that because a private airline performed the transportation “for the United States, not by the Unites States,” and the United States had not exempted chartered flights performed for its military, the flight constituted international carriage and the Warsaw Convention applied to any claims arising from the flight. Id. Article 57 under the Montreal Convention and similar provisions under the Warsaw Convention therefore demonstrate the United States’ consideration of chartered travel to and from its military bases located in foreign countries, and its express choice to not exempt those flights from the Conventions by reserving them under Article 57(b).

The Pettaways allege that Flight 293 operated as a “common carrier for hire engaged in the transportation of charter airline passengers in both domestic and international air travel,” which Miami Air dispatched. (Doc. 7 at ¶¶ 3, 11).11 Flight 293, therefore, does not constitute transportation conducted by the United States in its official capacity, and therefore, is not exempt under Article 57 from the Montreal Convention. Flight 293 may qualify as a chartered flight leased by the United States for its military (although more information would be needed for that determination); but even if such were alleged, the United States chose not to exempt such flights from the Convention. Thus, Flight 293 remains within the Montreal Convention's ambit under a plain reading of the text as a commercial flight from one United States’ military base in Cuba to another in the United States.

The Pettaways counter that Article 57 has no impact on the meaning of territory. (Doc. 22 at 10–11). Rather, the Pettaways respond by directing the Court's attention to language in the Warsaw Convention and The Hague Protocol that they argue provides a more expansive definition of “territory.” (Doc. 17 at 6). Article 1(2) of the Warsaw Convention stated that “territories subject to the sovereignty, suzerainty, mandate, or authority of the same High Contracting Party shall not be deemed to be international for the purposes of this convention.” The Hague Protocol stated: “[f]or the purposes of the Convention the word territory means not only the metropolitan territory of a State but also all other territories for the foreign relations of which that State is responsible.” The Hague Protocol, Chapter V, Article 40A.2. The Court need not consider this language as neither the Warsaw Convention nor The Hague Protocol definitions of “territory” are included in the Montreal Convention's text.12 However, even if the Court considers this language in the Montreal Convention's predecessors, the Court is unconvinced that it renders Guantanamo Bay, Cuba, a territory of the United States.

The Pettaways identify numerous historical facts as part of their argument that the United States’ “sovereignty,” “control,” and “jurisdiction,” means Guantanamo is a territory under the aforementioned definitions:13

• In 1898, Spain ceded control of Cuba to the United States. (Doc. 17 at 7).

• In 1902, the United States passed a law authorizing the President to cede control of Cuba in exchange for Cuba ratifying a constitution that required Cuba to “sell or lease to the United States lands necessary for coaling or naval stations ․” Id. at 8.

• In 1903, the United States signed a lease agreement with Cuba for Cuban land that included Guantanamo. Id.

• The Lease Agreement stated that the United States recognizes “the continuance of the ultimate sovereignty of the Republic of Cuba over the described areas of land and water,” while granting the United States “complete jurisdiction and control over and within said areas ․” Id.

• In 1934, President Roosevelt signed the Treaty of Relations, which did not modify the Lease Agreement between Cuba and the United States and allowed “the naval station of Guantanamo [to] continue ․” Id. at 8–9.

• In 1961, the Unites States prevented travel to Cuba, and later, Cuba cut off the water supply to the United States’ naval station. Id. at 9. The United States then enclosed Guantanamo and built a surrounding minefield. Id.

• The Cuban government declared the United States’ presence in Guantanamo an illegal occupation of Cuba's territory. Id. at 10.

• In present day, Cuba does not cash the checks tendered by the United States under the Lease Agreement. Id. at 10.

The Pettaways are correct that these facts demonstrate that the United States’ involvement in Guantanamo Bay is unique. Indeed, other courts have wrestled with how other laws apply to Guantanamo Bay. For example, in Cuban Am. Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412, 1424–25 (11th Cir. 1995), the Eleventh Circuit held that a district court erred “in concluding that Guantanamo was a United States territory” under the Immigration and Nationality Act. The Christopher court rejected the argument, similar to the Pettaways’ here, that the United States’ leased military base at Guantanamo Bay was “within the United States,” as Cuba retained sovereignty over the leased land, regardless of whether the United States’ tenancy was “hostile or friendly.” Id. at 1425. Similarly, under the Federal Tort Claims Act (FTCA), courts have held that Guantanamo remains part of a “foreign country” and have precluded plaintiffs from bringing FTCA claims for alleged injuries on Guantanamo. See, e.g., Al-Zahrani v. Rumsfeld, 684 F. Supp. 2d 103, 116–20 (D.D.C. 2010) (granting motion to dismiss because “foreign country” exception applied to FTCA claim when alleged injury occurred on Guantanamo); Al Janko v. Gates, 831 F. Supp. 2d 272, 284 (D.D.C. 2011) (same).14

However, in Boumediene v. Bush, 553 U.S. 723, 754, 771, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), the United States Supreme Court determined that Guantanamo detainees held habeas rights under the United States Constitution due to the United States’ control over its naval base on Guantanamo. In the Court's discussion of Guantanamo's legal status, it stated that Cuba “maintains sovereignty, in the legal and technical sense of the term, over Guantanamo,” but held that the United States “by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory.” Id. at 754–55, 128 S.Ct. 2229. Both Miami Air and the Pettaways quote language within the Boumediene opinion to support their arguments about Guantanamo's status as a territory under the Montreal Convention. (See Doc. 11 at 15–16; Doc. 17 at 14–15). However, Boumediene focuses on the different context of habeas review and ultimately does not speak to this issue. See Boumediene, 553 U.S. at 754–55, 128 S.Ct. 2229. Therefore, the Court finds that even under the descriptions of “territory” in the Warsaw Convention and The Hague Protocol cited by the Pettaways, Guantanamo Bay still constitutes a territory of Cuba, not the United States.

Finally, the purpose of the Montreal Convention supports that Guantanamo Bay is a territory of Cuba. The Montreal Convention intends to create a “uniform system” of liability governing international air carriage. See Eli Lilly Co. v. Air Exp. Int'l USA, Inc., 615 F.3d 1305, 1308 (11th Cir. 2010) (describing the Montreal Convention as “set[ting] forth uniform rules for international air carriage”); Underwriters at Lloyds Subscribing to Cover Note B0753PC1308275000 v. Expeditors Korea Ltd., 882 F.3d 1033, 1035, 1043 n.14 (11th Cir. 2018); Letter of Submittal, 1999 WL 33292734, at *9 (describing the purpose of the Convention to lead to a “modernized unification of the liability regime applicable to international air carriers”). To accomplish this uniformity, Article 57 of the Montreal Convention limits the reservations available to State Parties to only two circumstances of international carriage and expressly precludes State Parties from making other exceptions. One of those reservations—for flights commercially chartered by the military—might well have applied to Flight 293. But the United States did not choose that reservation. Further, the Montreal Convention's use of the word “territory” without further elaboration (including not incorporating the prior definitions in the Warsaw Convention and The Hague Protocol) indicates the intention to ascribe the simplest meaning possible. Guantanamo Bay is situated within Cuba. The United States holds rights to occupy it as a tenant. Although the history cited by the Pettaways demonstrates a complex and fraught landlord-tenant relationship, the Lease Agreement between the countries and related case law make clear that Cuba still owns and retains sovereignty over Guantanamo Bay. Therefore, under the Montreal Convention, Guantanamo Bay is a territory of Cuba, which makes Flight 293 “international carriage” subject to the Montreal Convention.

B. Preemption

Miami Air argues that the Montreal Convention provides the Pettaway's exclusive means for bringing claims arising from Flight 293, thereby preempting and requiring dismissal of the Pettaways’ state law claims. (Doc. 11 at 2). Although the Pettaways do not contest the Convention's preemptive effect (Doc. 26 at 24:18–24:21), the Court must still ensure Miami Air is correct.

Article 29 of the Montreal Convention states: “In the carriage of passengers ․ 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 as are set out in this Convention ․” (emphasis added). In accordance with Article 29, “[b]oth the Supreme Court and the Eleventh Circuit have made clear that the Montreal Convention is the exclusive mechanism of recovery for personal injuries suffered on board an aircraft or in the course of embarking or disembarking from an airplane.” Vanderwall, 80 F. Supp. 3d at 1334–35 (quoting Marotte, 296 F.3d at 1255) (internal quotation marks omitted) (dismissing common law negligence claim with prejudice as preempted by Montreal Convention). Stated another way, “[f]or all air transportation to which the Montreal Convention applies, if an action for damages falls within one of the treaty's damage provisions, then the treaty provides the sole cause of action under which a claimant may seek redress for [his or her] injuries.” Ugaz, 576 F. Supp. 2d at 1360.

The Eleventh Circuit and district courts thereunder have enforced the Montreal Convention's preemptive effect by dismissing a plaintiff's state law claims. See, e.g., Eli Lilly Co., 615 F.3d at 1313 n.4 (“Article 29 of the Convention preempts state law actions falling within its scope.”); Jacob, 606 Fed. App'x at 480 (noting district court dismissed conversion claim because Montreal Convention preempted it); Llanes, 2008 WL 11417407, at *2–3 (dismissing the plaintiff's state law claims, holding that “[i]n keeping with the Convention's goals, the Court finds that plaintiffs’ state law claims are preempted by the Convention, thus enhancing the uniformity of the air carrier liability scheme”); Omolu v. Delta Air Lines, Inc., No. 1:12-cv-2820-WSD, 2013 WL 12061846, at *3 (N.D. Ga. June 26, 2013) (dismissing claims without prejudice on preemption grounds with leave to amend to assert claim under Montreal Convention); DHL Global Forwarding (China) Co. v. Lan Cargo, S.A., No. 18-21866-Civ-COOKE/GOODMAN, 2019 WL 13067929, at *5–9 (S.D. Fla. June 17, 2019) (granting motion for summary judgment for defendant on ground that Montreal Convention controlled case and preempted breach of contract and negligence claims); Hedetniemi v. Am. Airlines, Inc., No. 18-cv-21822-KMM, 2018 WL 7824483, at *3 (S.D. Fla. Nov. 7, 2018) (granting motion to dismiss state law negligence claim due to preemption by Convention).

As the Court finds that the Montreal Convention applies to the Pettaways’ claims arising from the Flight 293 incident, the Montreal Convention preempts their state law claims.15 Therefore, the Court dismisses the Pettaways’ claims.

C. Time Limitation

Miami Air furthers asks this Court to dismiss the case with prejudice on the basis that any future claims under the Montreal Convention would be untimely. (Doc. 11 at 19–20). Article 35 of the Montreal Convention provides that “[t]he right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of the 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.” (emphasis added). See also Blake v. Am. Airlines, Inc., 245 F.3d 1213, 1214 (11th Cir. 2001) (affirming summary judgment for airline under two-year limitation imposed by Warsaw Convention); Campbell, 760 F.3d at 1175 (describing two-year limitation imposed by Montreal Convention). The Flight 293 crash occurred on May 3, 2019. (Doc. 7 at ¶ 1). The Pettaways first filed their complaint over two years later on December 20, 2021. (Doc. 1 at 1).

Although Miami Air raises this issue of timeliness, and the Pettaways do not refute these arguments (Doc. 26 at 23:5–23:12; 24:22–24:25), the Court will provide the Pettaways an opportunity to determine whether a good-faith legal basis exists for bringing any claims against Miami Air, given the Court's rulings. Accordingly, the Pettaways’ complaint is dismissed and the Pettaways shall file a notice stating whether they have any remaining good-faith basis to pursue their case.


Relatedly, the Lail plaintiffs move to amend their complaint to allege alternative state law claims to their single Montreal Convention claim. (Doc. 60 at 1). Miami Air responded. (Doc. 67). The Court has now held in Pettaway that the Montreal Convention applies to the Flight 293 incident. The same is true in Lail, as plaintiffs also allege they suffered injuries while aboard Flight 293 from Guantanamo Bay, Cuba, to Jacksonville, Florida. (Doc. 1 at ¶¶ 1, 48). As state law claims are preempted by the Montreal Convention, and the Montreal Convention applies to the Lail plaintiffs’ claims, the requested amendment would be futile and is therefore denied. See Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262–63 (11th Cir. 2004).


Before staying Lail, Miami Air's Motion to Dismiss remained pending. (Doc. 16). A status conference was held on August 23, 2021, wherein the parties argued the motion, the record of which is incorporated by reference. (Doc. 26). For the reasons stated below, the Motion to Dismiss is due to be denied in its entirety.

A. Service of Process

The first issue involves whether plaintiffs failed to properly serve process on Miami Air. (Doc. 16 at 9–10). Since the parties filed the motions, however, the parties filed a joint stipulation in which Miami Air agreed to waive service. (Doc. 24 at 3). Miami Air also later answered plaintiffs’ complaint. (Doc. 40). Therefore, this issue is moot.

B. Pleading Limitation on Damages

Miami Air also argues the complaint should be dismissed because plaintiffs do not plead that their damages are limited to Miami Air's insurance coverage. (Doc. 16 at 9). Plaintiffs respond that no such pleading requirement exists but agree that their alleged damages are limited to Miami Air's insurance coverage. (Doc. 18 at 2–7). The Court agrees with plaintiffs. As the Court stated during the status conference, plaintiffs’ lack of pleading a damages limitation does not require the Court to dismiss their complaint, particularly when plaintiffs agree that their damages are limited to Miami Air's insurance coverage. (Doc. 26 at 18:19–19:6).

Additionally, Miami Air provides no support for the purported pleading requirement. Miami Air cites one case outside of the Eleventh Circuit in support, Wilson v. Allegheny Intern. Inc., 134 B.R. 282 (N.D. Ill. 1991). However, Wilson involved the dismissal of a complaint brought by plaintiffs who had not stipulated to limiting their damages to insurance coverage, and instead, indicated that they sought damages beyond the debtor-defendant's coverage. Id. at 285. Unlike the plaintiffs in Wilson, the Lail plaintiffs have stipulated in their response and to the Court that their alleged damages are limited to Miami Air's insurance coverage. (Doc. 18 at 6–7). Moreover, Judge Cristols’ Order Lifting Stay entered in the related Bankruptcy Action expressly limits plaintiffs’ recovery to available insurance coverage. (Doc. 16-2 at 5). Miami Air's motion to dismiss therefore fails.


Before the Court stayed Lail (Doc. 62), Miami Air also moved for partial summary judgment regarding the extent to which plaintiffs may recover damages for any alleged mental injuries caused by the Flight 293 incident (Doc. 54). Plaintiffs responded. (Doc. 55). Miami Air replied. (Doc. 56). Now that the Lail case is reopened, the issue is before the Court.

In its motion, Miami Air seeks a ruling limiting plaintiffs’ recoverable damages related to mental injuries only to those that were caused by a physical injury sustained in the Flight 293 incident (Doc. 54 at 8). Plaintiffs counter that they are entitled to recover for any mental injury caused by the accident, so long as plaintiffs also sustained a physical injury in the accident. (Doc. 55 at 3–19). The distinction is nuanced, but the outcome may significantly broaden or narrow each plaintiff's potential recovery. The key word is “may.” As observed by plaintiffs, Miami Air moves for partial summary judgment without any evidence or factual record.17 (Doc. 55 at 3–4). As a result, it is unclear at this time whether a ruling on the issue would affect all or any of plaintiffs’ damages claims. Although plaintiffs allege in their complaint that “[a]s a direct and proximate result of the accident, plaintiffs have suffered bodily injuries,” and various mental injuries (Doc. 1 at ¶¶ 52–53), this lone allegation does not demonstrate that all plaintiffs will seek to recover for mental injuries solely caused by the accident, unrelated to any bodily injury.

Having reviewed the case law 18 and briefing, the Court finds that a ruling on this motion at this time would be premature. No discovery deadline has been set yet. No developed factual record exists. Indeed, it is not yet known precisely what damages each plaintiff would seek. It also is unclear whether there are distinctions among the plaintiffs’ cases. Accordingly, the Court denies Miami Air's motion without prejudice. Miami Air may reassert this argument later in the case if warranted.

Accordingly, it is hereby


1. In Pettaway (3:22-cv-139), Defendant Miami Air's Motion to Dismiss (Doc. 11) is GRANTED. The Pettaways’ complaint (Doc. 7) is DISMISSED. No later than September 23, 2022, the Pettaways shall file a notice stating whether they have any remaining good-faith basis to pursue this case.

2. The Lail case (3:21-cv-413) is REOPENED.

3. In Lail (3:21-cv-413), Plaintiffs’ Motion to Amend Complaint (Doc. 60) is DENIED.

4. In Lail (3:21-cv-413), Miami Air's Motion to Dismiss Plaintiffs’ Complaint (Doc. 16) is DENIED.

5. In Lail (3:21-cv-413), Miami Air's Motion for Partial Summary Judgment (Doc. 54) is DENIED without prejudice. Miami Air may reassert this argument later in the case if warranted.

6. In Lail, the parties shall file a new Case Management Report no later than September 23, 2022.

DONE AND ORDERED in Jacksonville, Florida the 31st day of August, 2022.


1.   One Plaintiff, Tchernavia Pettaway, does not allege she was a passenger on Flight 293; rather, she brings a derivative loss of consortium claim as the spouse of Plaintiff Jabbar Pettaway who was a passenger on Flight 293. (Doc. 7 at ¶¶ 60–61 in 3:22-cv-139).

2.   The Court stayed Lail because the motions raised a question as to this Court's subject matter jurisdiction over Pettaway and Lail. (Doc. 62 at 2–3 in 3:21-cv-413). Given the Court's holding below that the Montreal Convention applies in both cases, the Court is satisfied that it has subject matter jurisdiction. See Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1169 (11th Cir. 2014) (holding that “the Montreal Convention grants [a] district court the power to hear” a case because it conveys subject matter jurisdiction to federal district courts); see also 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under ․ treaties of the United States.”).The parties also argued that an alternative basis—the Federal Enclave Doctrine—provides the Court jurisdiction over both cases. (See Doc. 17 at 17–18 and Doc. 20 at 14 in 3:22-cv-139). The Court agrees because the plaintiffs in both cases allege that the incident giving rise to their claims occurred at Naval Air Station Jacksonville, a federal enclave. See id. See also U.S. Const. art. I, § 8, cl. 17; Lord v. Local Union No. 2088, Int'l Bhd. of Elec. Workers, AFL-CIO, 646 F.2d 1057, 1059 (5th Cir. 1981) (holding that the United States has exclusive legislative jurisdiction over lands, known as federal enclaves); Deremiah v. Balfour Beatty Cmtys., LLC, No. 3:14-cv-327-J-32MCR, 2014 U.S. Dist. LEXIS 80876, at *2–3 (M.D. Fla. June 12, 2014) (Corrigan, J.) (determining that Naval Air Station Jacksonville is a federal enclave). However, because the Montreal Convention applies, there is no need to rely upon this jurisdictional ground.

4.   Given the relationship between the Conventions, courts may rely on cases interpreting the Warsaw Convention “where the equivalent provision of the Montreal Convention is substantively the same.” Ugaz, 576 F. Supp. 2d at 1360.

5.   The Court does not rely on unpublished opinions as binding precedent, however, they may be cited when the Court finds them persuasive on a particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022).

6.   The Pettaways do not contest this and the Lail plaintiffs allege such in their complaint. (See Doc. 1 at ¶ 5 in 3:21-cv-413).

7.   The Court takes judicial notice of these facts and the Lease Agreement between the United States and Cuba under Fed. R. Evid. 201(b). See Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval Stations (Feb. 23, 1903) (available at: (last visited August 30, 2022).

8.   The full text of Article 57 states:No reservation may be made to this Convention except that a State Party may at any time declare by a notification addressed to the Depositary that this Convention shall not apply to:(a) international carriage by air performed and operated directly by that State Party for non-commercial purposes in respect to its functions and duties as a sovereign State; and/or(b) the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or leased by that State Party, the whole capacity of which has been reserved by or on behalf of such authorities.(emphasis added).

9.   Miami Air also states this proposition in its motion (Doc. 11 at 12), which the Pettaways do not contest.

10.   Mertens was abrogated on other grounds, which does not impact the analysis here. See Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 128, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989). Further, although Mertens interprets the Warsaw Convention and The Hague Protocol of 1955 (which was incorporated with the Warsaw Convention), the Court may rely on Mertens because the Warsaw Convention and The Hague Protocol contained substantively the same provisions as Article 57 in the Montreal Convention. See Jacob, 606 F. App'x at 480 n.2 (“Courts interpreting the Montreal Convention may rely on authority concerning its predecessor, the Warsaw Convention, where provisions of both conventions are similar.”); see also Article-by-Article Analysis of the Convention, 1999 WL 33292734, Article 57 comment (stating that Article 57 contains generally the same reservations permitted under the Warsaw Convention and The Hague Protocol).

11.   The Lail complaint also alleges that Flight 293 was a “commercial flight,” dispatched by Miami Air. (Doc. 1 at ¶¶ 15–16 in 3:21-cv-413).

12.   Although courts may rely on cases interpreting the Warsaw Convention “where the equivalent provision of the Montreal Convention is substantively the same,” this is not the case here as the Montreal Convention contains no similar definition of “territory.” Ugaz, 576 F. Supp. 2d at 1360. Therefore, as Article 55 of the Montreal Convention states, the Montreal Convention “shall prevail” over the Warsaw Convention and The Hague Protocol. Montreal Convention, Article 55.

13.   To the extent the Court identifies historical facts raised by the parties, the Court takes judicial notice of those facts under Fed. R. Evid. 201(b). However, these facts do not change the Court's reading of the Montreal Convention.

14.   Plaintiffs rely on Gherebi v. Bush, 352 F.3d 1278, 1290 (9th Cir. 2003), where the Ninth Circuit held that the naval base on Guantanamo was part of the “sovereign territory” of the United States when determining habeas jurisdiction. However, the Ninth Circuit later vacated Gherebi, so the Court does not rely on it here. Bush v. Gherebi, 542 U.S. 952, 124 S.Ct. 2932, 159 L.Ed.2d 835 (2004).

15.   Because the Court finds that the Montreal Convention controls and preempts the Pettaways’ state law claims, therefore requiring dismissal of the Pettaways’ complaint, the Court need not reach Miami Air's alternative argument for dismissal that the Pettaways needed to file a proof of claim in the Bankruptcy Court. (See Doc. 11 at 21).Similarly, Miami Air's alternative argument that the Pettaways’ allegations fall short of alleging an “accident” because the complaint “is couched in common law negligence verbiage” need not be addressed. (See Doc. 11 at 17–19).

17.   In its motion, Miami Air argues that some discovery responses it received supports that some plaintiffs will not be able to demonstrate a bodily injury or causal connection between a bodily injury and mental injury. (Doc. 54 at 4). However, Miami Air does not attach the discovery responses to its motion, so the evidence is not before the Court. Additionally, as plaintiffs observe, “it is impossible to determine which plaintiffs’ claims” Miami Air “refers to in its motion.” (Doc. 55 at 3).

18.   See generally Jacob v. Korean Air Lines Ltd., 606 Fed. App'x 478 (11th Cir. 2015); Doe v. Etihad Airways, P.J.S.C., 870 F.3d 406 (6th Cir. 2017); Ehrlich v. Am. Airlines, Inc., 360 F.3d 366 (2d Cir. 2004); Bandary v. Delta Air Lines, Inc., No. EDCV 17-1065 DSF (ASx), 2019 WL 9244788 (C.D. Cal. Oct. 11, 2019); Oshana v. Aer Lingus Ltd., No. 20 C 2041, 2022 WL 138140 (N.D. Ill. Jan. 12, 2022).

TIMOTHY J. CORRIGAN, United States District Judge

Copied to clipboard