     Case: 12-20836      Document: 00512428928         Page: 1    Date Filed: 11/04/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                        Fifth Circuit

                                                                                    FILED
                                                                               November 4, 2013
                                        12-20836
                                                                                 Lyle W. Cayce
                                                                                      Clerk
CHRISTOPHER J. BRIDGEMAN; MARTIN A. BORGER,

                                                 Plaintiffs - Appellants,
v.

UNITED CONTINENTAL HOLDINGS, INC.; CONTINENTAL
AIRLINES, INC.,

                                                 Defendants - Appellees.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12–CV–2848


Before SMITH, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
       This appeal involves whether two airline travelers’ state-law claims for
intentional infliction of emotional distress, invasion of privacy, and negligence
in connection with the airline’s alleged placement of a sex toy on their baggage
are preempted by Article 17(1) or Article 17(2) of the Montreal Convention. We
hold that the plaintiffs’ claims are not preempted by either. Accordingly, we
REVERSE the district court’s grant of the defendants’ motion to dismiss and
REMAND for further proceedings.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 12-20836    Document: 00512428928       Page: 2   Date Filed: 11/04/2013



                                  No. 12-20836
                                        I.
      Because this is an appeal from a dismissal pursuant to Federal Rule of
Civil Procedure 12(b)(6), these facts are taken from the pleadings and
presented in the light most favorable to the plaintiffs. On May 21, 2011,
Plaintiffs–Appellants Christopher J. Bridgeman and Martin A. Borger
(collectively, “Plaintiffs”) were returning to the United States on a flight
provided by Defendants–Appellees United Continental Holdings, Inc. and
Continental Airlines, Inc. (collectively, “United”). Plaintiffs flew from Costa
Rica to Norfolk, Virginia, with a layover at George Bush International Airport
in Houston.    Upon arriving in Houston, Plaintiffs went through customs,
rechecked their bags, and continued their trip to Norfolk.
      After arriving at the Norfolk airport, Plaintiffs exited the aircraft and
went to the baggage-claim area to retrieve their bags. As Plaintiffs’ bags came
around the carousel, they discovered, to their surprise and horror, that a sex
toy had been removed from one of their bags, covered in a greasy foul-smelling
substance, and taped atop the bag.           After observing the bag and being
extremely embarrassed by the surprised and laughing faces of onlookers,
Plaintiffs called two friends who assisted them out of the airport and to their
home.
      As a result of this experience, Plaintiffs filed claims against United in
Texas state court, asserting intentional infliction of emotional distress,
invasion of privacy, and negligence. They asserted that the bag at all times,
from when they checked the bag in Houston to the time it was sent out onto
the carousel in Norfolk, was in the custody of United and that, during this time,
one or more of United’s employees had searched their bag, removed the toy,
defiled it, and then taped it to the top of the bag. Plaintiffs alleged that these
acts were directed towards them because they are homosexuals and male.


                                        2
    Case: 12-20836    Document: 00512428928      Page: 3    Date Filed: 11/04/2013



                                  No. 12-20836
      Finally, Plaintiffs alleged that, as a result of these actions, they suffered
severe emotional distress and mental anguish requiring the help of mental
health care professionals. Plaintiffs did not allege that they suffered any
physical injuries. Nor did Plaintiffs seek to recover for damage to their bags.
      United denied Plaintiffs’ allegations and removed the case to the United
States District Court for the Southern District of Texas pursuant to 28 U.S.C.
§ 1441. United then filed a motion to dismiss, arguing, as it does before this
court, that (1) Plaintiffs’ claims are preempted by Article 17 of the Montreal
Convention, which, by treaty, defines conditions for carrier liability for injury
to international passengers and damage to their baggage, and that (2) because
the Montreal Convention does not provide a remedy for claims alleging only
emotional damages, Plaintiffs have no basis for relief.
      The district court granted United’s motion to dismiss, agreeing with its
preemption argument. The district court reasoned that “because the suit does
not set out facts or conduct establishing a claim for an alleged tort apart from
the handling of their baggage, the pleadings are insufficient to support a non-
preempted cause of action.” Plaintiffs timely appealed.
                                        II.
      “We review a district court’s dismissal under Rule 12(b)(6) de novo,
accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiffs.” Doe ex rel. Magee v. Covington Cnty. Sch.
Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012) (en banc) (citation and
internal quotation marks omitted).
                                       III.
      The Montreal Convention, more formally known as the Convention for
the Unification of Certain Rules for International Carriage by Air, May 28,
1999, is a multilateral treaty entered into force on November 4, 2003. 2242
U.N.T.S. 309, reprinted in S. Treaty Doc. No. 106-45, 1999 WL 33292734
                                        3
     Case: 12-20836        Document: 00512428928          Page: 4     Date Filed: 11/04/2013



                                        No. 12-20836
(2000).     Like the Warsaw Convention, its predecessor, the Montreal
Convention “governs the rights and liabilities of passengers and carriers in
international air transportation.” Galbert v. W. Caribbean Airways, 715 F.3d
1290, 1292 (11th Cir. 2013); see also 2242 U.N.T.S. at 350. The Montreal
Convention was intended 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.’”
Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., 522 F.3d 776, 780 (7th
Cir. 2008) (quoting Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 371 n.4 (2d Cir.
2004)).
       In accordance with this objective, the Montreal Convention preempts
state-law causes of action relating to the international carriage of persons,
baggage, and cargo, but—critically for this case—only to the extent they fall
within its substantive scope. See El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng,
525 U.S. 155, 172 (1999) (explaining that the Warsaw Convention’s
“preemptive effect on local law extends no further than the Convention’s own
substantive scope” and that carriers are “indisputably subject to liability under
local law for injuries arising outside of that scope” (internal citations and
quotation marks omitted)). Cf. Mbaba v. Societe Air Fr., 457 F.3d 496, 500 (5th
Cir. 2006) (holding that the Warsaw Convention preempted the plaintiff’s
claims stemming from excess baggage fees because “[t]o hold otherwise would
undermine the Convention’s goal of uniformity”). 1


       1  Courts have frequently relied on cases interpreting the Warsaw Convention to
interpret corresponding provisions of the Montreal Convention. See, e.g., White v. Emirates
Airlines, Inc., 493 F. App’x. 526, 529 (5th Cir. 2012) (unpublished but persuasive) (stating
that “[i]t is expected that [Article 17] will be construed consistently with the precedent
developed under the Warsaw Convention and its related instruments” (alterations in
original) (citation omitted)); Bassam v. Am. Airlines, 287 F. App’x. 309, 313 n.5 (5th Cir. 2008)
(unpublished but persuasive) (explaining that “[a]lthough the Montreal Convention
completely replaced the prior Warsaw Convention, courts interpreting the Montreal
                                               4
     Case: 12-20836        Document: 00512428928           Page: 5     Date Filed: 11/04/2013



                                        No. 12-20836
       Article 17 of the Montreal Convention contains two provisions relevant
to this case: Article 17(1) imposes liability on carriers for injuries to passengers
and Article 17(2) for damage to baggage. 2242 U.N.T.S. at 355. On appeal,
Plaintiffs argue that their state-law claims do not fall within the scope of either
provision. We agree and address each provision in turn.
                                               A.
       As stated by the Supreme Court, “[t]he interpretation of a treaty, like
the interpretation of a statute, begins with its text.” Medellín v. Texas, 552
U.S. 491, 506 (2008). Here, a straight-forward application of the text of Article
17(1) shows that it is inapplicable to Plaintiffs’ claims.
       Article 17(1) of the Montreal Convention states:
       The carrier is liable for damage sustained in case of death or bodily
       injury of a passenger upon condition only that the accident which
       caused the death or injury took place on board the aircraft or in
       the course of any of the operations of embarking or disembarking.
2242 U.N.T.S. at 355 (emphasis added).                 Accordingly, we must determine
whether the alleged misconduct in this case took place “on board the aircraft
or in the course of any of the operations of embarking or disembarking.” In
doing so, we look to the event that caused Plaintiffs’ injury, rather than the
occurrence of the injury itself. See Air Fr. v. Saks, 470 U.S. 392, 398 (1985)
(explaining that the “text of Article 17 [of the Warsaw Convention] refers to an
accident which caused the passenger’s injury, and not to an accident which is
the passenger’s injury”). 2



Convention rely on cases interpreting similar provisions of the Warsaw Convention”)
(alteration in original) (citation omitted)); see also, e.g., Phifer v. Icelandair, 652 F.3d 1222,
1224 n.1 (9th Cir. 2011) (applying the Supreme Court’s interpretation of Article 17 of the
Warsaw Convention when analyzing Article 17 of the Montreal Convention).
       2 We express no view on whether the alleged misconduct in this case qualifies as an

“accident” as the Supreme Court has interpreted that term. See generally Olympic Airways
v. Husain, 540 U.S. 644, 652 (2004) (concluding that a flight attendant’s actions were an
“accident” because they were “unusual or unexpected in light of the relevant industry
                                                5
     Case: 12-20836      Document: 00512428928         Page: 6    Date Filed: 11/04/2013



                                      No. 12-20836
       Here, any connection between the alleged misconduct—the display of
Plaintiffs’ bag in the baggage-claim area—and the “operations of embarking or
disembarking” is tenuous at best. As explained by the First Circuit, the phrase
“in the course of any of the operations of embarking” “strongly suggests that
there must be a tight tie between an accident and the physical act of entering
an aircraft.” McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 317 (1st Cir. 1995)
(emphasis added). There is no such tight tie here: the events occurred in the
baggage-claim area and were wholly unconnected to Plaintiffs’ physical act of
exiting the aircraft. Cf. Marotte v. Am. Airlines, Inc., 296 F.3d 1255, 1260 (11th
Cir. 2002) (applying the First Circuit’s analysis in McCarthy to conclude that
the plaintiff was “embarking” when his “party had their boarding passes in
hand and were attempting to board the plane”); Fedelich v. Am. Airlines, 724
F. Supp. 2d 274, 284 (D.P.R. 2010) (applying the analysis used in McCarthy to
conclude that the plaintiff was not disembarking when, at the time of the
accident, the plaintiff was “free from [the airline’s] direction, removed from the
arrival gate, and in the baggage claim”).
       Therefore, Plaintiffs’ claims are not preempted by Article 17(1) of the
Montreal Convention. 3 See Tseng, 525 U.S. at 172 (explaining that under the
Warsaw Convention carriers are “indisputably subject to liability under local
law for injuries arising outside of [the scope of the Convention]: e.g., for




standard or [the airline’s] own company policy”); Saks, 470 U.S. at 406 (concluding that
“liability under Article 17 of the Warsaw Convention arises only if a passenger’s injury is
caused by an unexpected or unusual event or happening that is external to the passenger”).
        3 This result is consistent with our unpublished decision in Bassam, where the

plaintiff sought to recover, in part, emotional distress damages under Article 17 of the
Montreal Convention in connection with the loss of items in her luggage. 287 F. App’x. at
317. In denying her claim on the merits, we reasoned that she could not establish carrier
liability under Article 17(1) because her “injury was not caused by an accident on board the
aircraft or in the course of embarking or disembarking.” Id.
                                             6
    Case: 12-20836       Document: 00512428928      Page: 7   Date Filed: 11/04/2013



                                    No. 12-20836
passenger injuries occurring before any of the operations of embarking or
disembarking” (citation and quotation marks omitted)).
                                          B.
         As with our analysis of Article 17(1), our analysis of Article 17(2) of the
Montreal Convention begins with its text:
         The carrier is liable for damage sustained in case of destruction or
         loss of, or of damage to, checked baggage upon condition only that
         the event which caused the destruction, loss or damage took place
         on board the aircraft or during any period within which the
         checked baggage was in the charge of the carrier.
2242 U.N.T.S. at 355 (emphasis added). Here, Plaintiffs’ state-law claims rely
on the fact that their bag was “in the charge of the carrier,” and it is clear that
their bag was not destroyed or lost. Thus, whether Article 17(2) preempts
Plaintiffs’ claims boils down to whether they seek a remedy for “damage to
checked baggage.”
         We hold that they do not and that, therefore, Article 17(2) does not
preempt Plaintiffs’ state-law claims.         The alleged misconduct in this case
simply does not relate to any damage to Plaintiffs’ duffel bag, which they admit
is “just fine” and undamaged; rather, Plaintiffs seek a remedy for the way in
which their bag was utilized to inflict personal injury. Accordingly, we decline
to shoehorn Plaintiffs’ claims into the substantive scope of Article 17(2) merely
because a bag is central to their factual basis. Instead, we reach our conclusion
based on a natural reading of Article 17(2)’s text.
                                         IV.
         For the reasons stated above, we REVERSE and REMAND to the district
court.




                                          7
