Family Waited Too Long to Sue Over Denied Air

     (CN) - After mistakenly refusing supplemental oxygen to a terminally ill passenger, British Airways need not face claims filed outside an international treaty's two-year deadline, the 9th Circuit ruled Wednesday.
     Stricken with advanced lung disease, Panansam Narayanan had requested that British Airways make supplemental oxygen available to him on board his Dec. 26, 2008, flight from Los Angeles to London and Bangalore.
     After the oxygen was "mistakenly denied" to Narayanan during the flight, a doctor checked him in London and he flew on to India. He returned to Los Angeles a couple of weeks later but died in June.
     Narayanan's widow and two adult children sought wrongful death damages from the airline under the Montreal Convention, which governs liability when passengers are injured on international flights. The family claimed that Narayanan would not have died so soon if British Airlines had provided the oxygen as promised.
     While Narayanan's family filed their claims well within the limitations period for wrongful death in California, they missed the Montreal Convention's strict two-year deadline by about three months. U.S. District Judge John Walter in Los Angeles dismissed the lawsuit as untimely.
     A divided three-judge federal appeals panel affirmed on Wednesday, with a dissenting judge calling for the revision of a treaty that "continues to protect international airline carriers at the expense of its passengers."
     The treaty, which was approved in 1999 to replace the Warsaw Convention of 1929, is quite clear on the subject of deadlines, the majority found. Claims must be filed within two years of the date that the aircraft arrived or should have arrived at its destination.
     "Here, the flight at issue arrived on December 26, 2008," Judge Jacqueline Nguyen wrote for the court. "Plaintiffs thus had until December 26, 2010, to file a claim. However, they did not file their complaint until March 7, 2011 - approximately three months too late."
     Dec. 26 is also given as the date that Narayanan boarded what was likely an 11-hour flight to London, with an eight-hour time difference.
     The family argued that the limitations period should start on the date of Narayanan's death, six months after the plane landed. This would essentially apply local law to the case based on the idea that the result of the alleged negligence, Narayanan's death, had not yet occurred when the plane arrived.
     Nguyen nevertheless declined to skirt the convention via "factual wrinkle" in the face of the treaty's unambiguous language.
     "By urging us to evaluate the timeliness of their claim under the Convention based upon the date upon which it accrued under California law, plaintiffs effectively ask us to write an implied fourth trigger into the convention's terms," Nguyen wrote. "This we cannot do."
     Writing in a dissent, Judge Harry Pregerson argued that the Montreal Convention's "uncompromising two-year statute of limitations" was created in a time when airline travel was much more dangerous than it is today.
     The convention should be reimagined in favor of passengers, he added.
     Despite being reworked in 1999, the Montreal Convention retained the Warsaw Convention's "rigid statute of limitations," Pregerson wrote.
     "Because of the unfair and unconscionable result in this case and perhaps others, I hope that the Montreal Convention will be revisited and revised to protect families like the Narayanans," he added.