                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                  _____________

                                   No. 98-1745
                                  _____________

Robert A. Husmann,                       *
                                         *
              Plaintiff - Appellant,     *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Trans World Airlines, Inc.,              *
                                         *
               Defendant - Appellee.     *

                                  _____________

                        Submitted: September 25, 1998
                            Filed: March 8, 1999
                                _____________

Before BOWMAN, Chief Judge, JOHN R. GIBSON and MORRIS SHEPPARD
      ARNOLD, Circuit Judges.
                              _____________


JOHN R. GIBSON, Circuit Judge.

       Robert A. Husmann sued Trans World Airlines for injuries he sustained in a
fall while boarding an airplane in London, England on October 5, 1991. The district
court1 denied Husmann's motion to remand the case to state court for lack of subject
matter jurisdiction and granted summary judgment to T.W.A., ruling that the two-year


      1
       The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
statute of limitations contained in the Warsaw Convention2 barred Husmann's claim.
We affirm.

      Husmann was injured on October 5, 1991, when he tripped over luggage while
boarding a T.W.A. flight from London, England to St. Louis, Missouri. On April 21,
1997, Husmann sued T.W.A. in Missouri state court. T.W.A. removed the case on
the basis of federal question jurisdiction, specifically, the Warsaw Convention. The
Warsaw Convention governs carrier liability for personal injuries sustained in an
accident during international travel.

       The district court granted summary judgment to T.W.A., concluding that
Husmann's claim was barred under the two-year statute of limitations contained in
the Warsaw Convention.3 Husmann appeals, arguing that his claim is not governed
by the Warsaw Convention and that the district court has no subject matter
jurisdiction. He also contends that even if the Warsaw Convention applies, his claim
was tolled during the time T.W.A. was under bankruptcy protection.

                                         I.

      Husmann first claims that the district court had no subject matter jurisdiction.




      2
       Convention for the Unification of Certain Rules Relating to International
Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934), reprinted
in 49 U.S.C. § 40105 note (1994).
      3
       Article 29 of the Convention provides that the right to damages shall be
extinguished if an action is not brought within two years from the date of arrival at
the destination. See 49 U.S.C. § 40105.
                                         -2-
      The existence of subject matter jurisdiction is a question of law that this court
reviews de novo. See Osborn v. United States, 918 F.2d 724, 729-730 (8th Cir.
1990).

        Husmann contends that his petition was based on Missouri tort law, not the
Warsaw Convention. He contends that the Convention does not completely preempt
personal injury claims arising out of incidents on international flights, and that state
law actions continue to exist. Because his petition in state court was not based on the
Warsaw Convention and sought less than the damage limit of the Convention,
Husmann argues there was no basis for federal jurisdiction under the "well pleaded
complaint rule." See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). The
well pleaded complaint rule provides that federal jurisdiction exists only when a
federal question is presented on the face of the plaintiff's properly pleaded complaint.
See id. Husmann contends that he relied only on state law, and that there is no basis
for deciding the case under federal law. Husmann concedes that if there is complete
preemption, then his claim is converted to a federal claim. "Once an area of state law
has been completely pre-empted, any claim purportedly based on that pre-empted
state law is considered, from its inception, a federal claim, and therefore arises under
federal law." Id. at 393.

       Husmann contends that his case is governed by the five-year statute of
limitations contained in Missouri law. See Mo. Rev. Stat. § 516.120 (1994).
Husmann admits that even under Missouri law his suit would "ordinarily" be barred
because he arrived at his destination on or about October 6, 1991, and he did not file
suit until April 17, 1997. He claims, however, that his suit was tolled during the
period when he could not bring suit under the automatic stay provision of section 362
of the Bankruptcy Code. See 11 U.S.C. § 362 (1994).

      T.W.A. filed a voluntary petition for bankruptcy on January 31, 1992. The
bankruptcy court lifted the permanent injunction and authorized suits against T.W.A.

                                          -3-
to the extent of insurance coverage on April 6, 1995. T.W.A. filed a second petition
for bankruptcy on June 30, 1995. Husmann claims these bankruptcy filings tolled the
statute for over three years, and thus, he falls within the five-year limit of Missouri
law.

       Although the Eighth Circuit has not decided whether the Warsaw Convention
preempts state law causes of action, we do not write on a blank slate. The Second and
Fifth Circuits have both considered the question and decided that the Warsaw
Convention preempts state law causes of action. See Shah v. Pan American World
Serv. Inc., 148 F.3d 84, 97-98 (2d Cir. 1998), cert. denied, 67 U.S.L.W. 3393, 3394
(U.S. Feb. 22, 1999) (Nos. 98-905, 98-907); Fishman v. Delta Airlines, Inc.,132 F.3d
138, 141 (2d Cir. 1998); In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267,
1278 (2d Cir. 1991), cert. denied, 502 U.S. 920 (1991); Potter v. Delta Airlines, Inc.,
98 F.3d 881, 884-87 (5th Cir 1996); Boehringer-Mannheim Diagnostics, Inc. v. Pan
American World Airways, Inc., 737 F.2d 456, 458 (5th Cir. 1984), cert. denied, 469
U.S. 1186 (1985).

        In finding federal preemption, the Second and Fifth Circuits relied on the fact
that the announced goals of the Warsaw Convention were to provide uniformity and
certainty in the laws governing international air carrier liability. The courts
concluded that allowing state causes of action for death and injuries suffered by
passengers on international flights would frustrate these goals. See Lockerbie, 928
F.2d at 1275; Boehringer, 737 F.2d at 459; Potter, 98 F.3d at 885. As the Second
Circuit succinctly stated: "[T]he existence of state causes of action would not only
result in the inconsistent application of law to the same accident, but also would cause
enormous confusion for airlines in predicting the law upon which they would be
called to respond." Lockerbie , 928 F.2d at 1276.

      Husmann contends that remanding his claim to state court will not violate the
purposes of the Warsaw Convention because his claim does not exceed the specified

                                          -4-
maximum amount of damages under the Convention. For support, Husmann relies
on three district court decisions,4 which have held that the Warsaw Convention
supplies only the exclusive remedy for claims arising from international
transportation, and that state law claims are viable as long as they are subject to the
limitations of the Convention. After carefully considering the district court decisions,
we conclude that they are unpersuasive. Permitting a state court action would
undermine the "uniformity" and "certainty" embodied in the Warsaw Convention.
See Zicherman v. Korean Air Lines Co., 516 U.S. 217, 230 (1996) (a primary
function of the Warsaw Convention is to foster uniformity in the laws governing
international air carrier liability); Lockerbie, 928 F.2d at 1275. The Second and Fifth
Circuits have provided a thorough and detailed analysis of their rulings, and we are
fully convinced that Husmann's state law cause of action is completely preempted by
the Warsaw Convention.5


      4
       See Campos v. Sociedad Aeronautica De Medellin Consolidada, S.A., 882 F.
Supp. 1056, 1058-59 (S.D. Fla. 1994); Lavadenz de Estenssoro v. American Jet,
S.A., 944 F. Supp. 813, 817-18 (C.D. Cal. 1996); Air Exp. Int'l v. Aerovias de
Mexico S.A. De C.V., 977 F. Supp. 1191, 1192-93 (S. D. Fla. 1977).
      5
         The Supreme Court recently held that "recovery for a personal injury suffered
'on board' [an] aircraft or in the course of any of the operations of embarking or
disembarking, if not allowed under the Convention, is not available at all." El Al
Israel Airlines, Ltd. v. Tseng, 119 S. Ct. 662, 668 (1999) (internal citation omitted).
Tseng was based on an invasive but routine security search of an international
passenger which did not qualify as an "accident" under the Convention. See id. at
669. The Supreme Court expressly decided that "[g]iven the Convention's
comprehensive scheme of liability rules and its textual emphasis on uniformity, we
would be hard put to conclude that the delegates at Warsaw meant to subject air
carriers to the distinct, nonuniform liability rules of the individual signatory nations."
Id. at 672. The Supreme Court's decision in Tseng may control here, but at the very
least, it reinforces our decision that Husmann's state law cause of action is completely
preempted by the Warsaw Convention.

      We also think the Supreme Court's holding that the Warsaw Convention
                                           -5-
       We also conclude that even if the statute of limitations period of Missouri law
applied, Husmann could still not bring suit. Husmann relies on the automatic stay
provision of section 362 to come within the five-year period. The Bankruptcy Code
does not provide that a statute of limitations is tolled during the period of bankruptcy.
It provides that the action must be commenced within thirty days after notice of the
termination or expiration of the stay. See 11 U.S.C. § 108(c)(2). In this case, the
bankruptcy court terminated the stay on April 6, 1995. Husmann did not file suit until
April 21, 1997, well beyond the thirty-day window. T.W.A.'s second bankruptcy
filing on June 30, 1995, makes no difference. Husmann had thirty days from April
6, 1995, and so he was already out of time by June 30, 1995.

                                           II.

       Husmann next argues that even if the two-year statute of limitations period
contained in the Warsaw Convention applies, his suit was tolled during the time
T.W.A. was operating under the protection of the United States Bankruptcy Code.
Article 29(2) of the Convention states: "The method of calculating the period of
limitations shall be determined by the law of the court to which the case is
submitted."

       Mo. Rev. Stat. § 516.260 states: "Whenever the commencement of any suit
shall be stayed by an injunction of any court or officers authorized to grant the same,
the time during which such injunction shall be in force shall not be deemed any
portion of the [statute of limitations period]." Husmann claims that the statute of


provides the exclusive cause of action for injuries sustained during international air
transportation answers the dissent's argument that Husmann's claim is not removable
under the well-pleaded complaint rule. See also Luna v. Compania Panamena De
Aviacion, S.A. 851 F. Supp. 826, 831 (S. D. Tex. 1994) (approving removal of claims
covered by Warsaw Convention.)
                                           -6-
limitations was tolled from January 31, 1992 (when T.W.A. filed Chapter 11 petition)
until April 6, 1995 (when the bankruptcy court lifted the permanent injunction), and
then again from June 30, 1995 (when T.W.A. filed a second bankruptcy petition) until
August 2, 1995 (when T.W.A. was discharged from bankruptcy). Husmann claims
these two bankruptcy filings tolled the statute for more than three years, and so he
falls within the two-year limit of the Warsaw Convention.

       We reject Husmann's argument that the tolling provision contained in Missouri
law applies under Article 29(2). The Second Circuit rejected a similar argument in
Fishman, 132 F.3d at 143-45. The court characterized the time limitation in Article
29 as "a condition precedent to suit, a kind of limitation that is often deemed not
subject to tolling." Id. at 143. The Second Circuit also pointed out that the drafters
of the Convention specifically rejected a proposed revision that would have allowed
the limitations period to be tolled according to the law of the forum court. Id. at 144.

       The district court did not err in denying Husmann's motion to remand the case
to state court and in ordering summary judgment for T.W.A.

      We affirm the judgment of the district court.



MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

       One may concede that El Al Israel Airlines, Ltd. v. Tseng, 1999 WL 7724, at
*4 (U.S. Jan. 12, 1999), holds that Mr. Husmann's state-law claim is preempted, but
that does not necessarily mean that it is removable to a federal district court. The
state courts are (indeed, they must be) open to preemption defenses, and the court
does not indicate why the preemption created by the Warsaw Convention is the kind
that allows a defendant to evade the well-pleaded complaint rule. Most of the cases



                                          -7-
that the court relies on were not removed to a federal court, and in none of them was
the question of whether removal was proper raised or decided.

       Some highly respected commentators on matters touching on federal
jurisdiction have noted that "[b]ecause of the obvious federalism implications of
the complete-preemption doctrine, its application has been extremely limited by the
courts." C. Wright, A. Miller, and E. Cooper, 14B Federal Practice and Procedure:
Jurisdiction 3d § 3722.1, at 517 (1998). Indeed, those same commentators offer the
view that "most attempts by state court defendants to remove by invoking the
complete-preemption doctrine have been rebuffed by the federal courts on a motion
by the plaintiff to remand." Id., at 543-45.

        Most courts that have faced the question of complete preemption have asked
whether Congress intended not merely to provide a federal defense to a state cause
of action but to transform that cause of action into a federal one. To show that
Congress intended to "federalize" a state-law claim is a heavy burden for a defendant
to carry. He or she must show that the federal law in question (here, the Warsaw
Convention) contains a civil enforcement provision that creates a cause of action that
replaces the relevant state law and that Congress has specifically granted jurisdiction
to the federal courts to enforce the rights created. Only then can a court conclude that
Congress intended to make the claims removable. See Aaron v. National Union Fire
Insurance Company, 876 F.2d 1157, 1164-65 (5th Cir. 1989), cert. denied, 493 U.S.
1074 (1990).

       In the case before us, the court does not indicate why it believes Mr. Husmann's
case is completely preempted, and it seems clear to me that the defendant's removal
of the case cannot survive the application of the principles outlined in Aaron: The
defendant has not directed our attention to any statute, nor has my research revealed
any, specifically conferring federal jurisdiction over claims under the Warsaw
Convention. In these circumstances, I would be hard put to find a congressional

                                          -8-
intention to make this case removable. I would therefore reverse the judgment of the
district court and remand the case for remand to the state court from which, I believe,
it was improperly removed.

      A true copy.

             Attest:

                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -9-
