1

 The remaining defendants are not a party to Northwest’s Motion to Dismiss. 

2

 The Convention for the Unification of Certain Rules for International Carriage by Air, May 28,

1999, S.Treaty Doc. No. 106-45, 2422 U.N.T.S. 350, commonly referred to as the “Montreal

Convention.” 

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ABDEL MONEN YAHYA, Individually Case No. 08-14789

and as Personal Representative of the Estate

of SAID MOSHIN YAYHA, DECEASED HONORABLE SEAN F. COX

United States District Judge

Plaintiffs,

v.

YEMENIA-YEMEN AIRWAYS, a Foreign

Corporation for Profit; NORTHWEST 

AIRLINES, INC., a wholly-owned subsidiary

of Delta Airlines, Inc., a Foreign Corporation 

for Profit; and GSA-ARABIAN HORIZONS

TRAVEL AND TOURISM, a Foreign 

Corporation,,

Defendants.

_____________________________________/

OPINION & ORDER GRANTING, WITH LEAVE TO AMEND, 

 DEFENDANT NORTHWEST AIRLINES, INC.’S MOTION TO DISMISS [Doc. No. 6]

Plaintiff Abdel Monen Yahya (“Plaintiff”), as personal representative of the Estate of

Said Mohsin Yahya (“Yahya”) filed this cause of action on November 14, 2008 [Doc. No. 1],

alleging that the defendant’s refusal to land an international flight during a health emergency

caused Yayha’s death. The matter is before the Court on Defendant Northwest Airlines, Inc.’s

(“Northwest”) Motion to Dismiss1

 [Doc. No. 6], in which Northwest argues Plaintiff’s causes of

action against Northwest are preempted by the Montreal Convention2

. The parties have fully

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2

briefed the issues, and a hearing was held on May 21, 2009. For the reasons explained below, as

the Montreal Convention provides the exclusive method for passengers to bring claims against

airlines arising from international air travel, and further as the Montreal Convention bars

punitive or exemplary damages, the Court GRANTS Northwest’s Motion to Dismiss [Doc. No.

6]. However, the Court GRANTS Plaintiff’s Motion to Amend Complaint [See Doc. No. 25] as

to Defendant Northwest. 

BACKGROUND

Said Mohsin Yayha (“Yahya”) died on November 14, 2006 while a passenger on a

Yemenia-Yemen Airways (“Yemenia-Yemen”) flight from Detroit, Michigan to Sana’a,

Republic of Yemen. Plaintiff alleges in this action that the Yemenia-Yemen flight crew, when

advised by Yahya that his physical condition was life-threatening, informed Yahya that the flight

would not make an emergency landing in Saudi Arabia on his account, but instead that Yayha

would have to wait until the flight reached its final destination in Yemen. [Pl.’s Complaint, Doc.

No. 1, ¶ 7]. 

Yahya purchased an airline ticket for the flight to Yemen on November 11, 2006 from

GSA-Arabian Horizons Travel & Tourism (“GSA”), aboard Yemenia-Yemen. Id. at ¶ 10. The

flight was in two legs, with the first being operated by Northwest as a code-sharing partner with

Yemenia-Yemen, traveling from Detroit, Michigan to Frankfurt, Germany on Northwest Airlines

Flight 052 on November 13, 2006. Id. at ¶ 12. The second leg of the trip was on YemeniaYemen Flight 741, departing Frankfurt, Germany for Sana’a, Republic of Yemen, on November

14, 2006. Id. at ¶ 13. 

At some point in the second leg of the flight, Yayha “became seriously and critically ill

and/or injured while a passenger on Yemenia-Yemen Airways Flight 741.” Id. at ¶3. Yahya

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3

 Plaintiff dismissed Delta Airlines as a defendant to this action on February 9, 2009. [See Doc.

No. 3]. 

3

advised the crew “that his physical condition was life threatening and that he required that the

aircraft land so that he could be taken to a hospital immediately.” Id. at ¶4. At that time the

airplane was over Saudia Arabia, which Plaintiff claims had “an available hospital, which could

have saved the life of [Yahya] had the. . . crew diverted Flight 741 and landed in Saudi Arabia as

requested.” Id. at ¶5. 

In response to his medical emergency, Plaintiff claims the crew “intentionally,

negligently and grossly negligently refused to land the aircraft in Saudi Arabia and instead

advised [Yahya] over his objections that he would have to wait approximately one hour and 30

minutes for the aircraft to arrive” in Yemen. Id. at ¶6. Yayha died before the flight reached its

final destination in Yemen. Id. at ¶3. 

Yahya’s son, Abdel Monen Yayha (“Plaintiff”), as personal representative of the estate of

his father, filed the instant action on November 14, 2008 against Yemenia-Yemen, Northwest,

Delta Airlines, Inc.3

, and GSA. [Doc. No. 1]. Plaintiff’s complaint alleges the following seven

causes of action: 1) negligence and gross negligence; 2) negligence per se; 3) false

imprisonment; 4) intentional infliction of emotional distress; 5) respondeat superior; 6) [breach

of] warranty; and 7) a cause of action for punitive or exemplary damages. 

Northwest filed their Motion to Dismiss [Doc. No. 6] on February 9, 2009, arguing that,

as all of Plaintiff’s causes of action are state law claims, they are preempted by international

treaty. Further, Northwest alleges that Plaintiff’s claim for punitive or exemplary damages in

Count VI of his Complaint is likewise barred by international treaty. 

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STANDARD OF REVIEW

Northwest brings the instant motion pursuant to FED. R. CIV. P. 12(b)(6). In assessing a

motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must treat all wellpleaded allegations in the complaint as true. Kostrzewa v. City of Troy, 247 F.3d 633, 638 (6th

Cir. 2001). Dismissal is only proper if it, on the pleadings themselves, the plaintiff does not

have a “reasonably founded hope” of making his or her case. Bell Atlantic v. Twombley, 550

U.S. 554, 127 S.Ct. 1955, 1970 (2007). 

ANALYSIS

I. The Warsaw and Montreal Conventions.

Drafted in 1929, “[t]he Warsaw Convention was an international treaty created in the

early days of airline travel, which sought to create the conditions under which the then extremely

fragile industry could grow, by limiting airline accident liability.” Weiss v. El Al Israel Airlines,

Ltd., 433 F.Supp.2d 361, 364 (S.D.N.Y. 2006)(internal citation omitted). 

The Montreal Convention, effective November 4, 2003, “is not an amendment to the

Warsaw Convention,” but rather “is an entirely new treaty that unifies and replaces the system of

liability that derives from the Warsaw Convention.” Erlich v. American Airlines, Inc., 360 F.3d

366, 371 n.4 (2d Cir. 2004). In “recogniz[ing] the importance of ensuring protection of the

interests of consumers . . . and the need for equitable compensation based on the principle of

restitution,” Weiss at 365, the Montreal Convention has been described as “a treaty that favors

passengers rather than airlines.” In re Air Crash at Lexington, Kentucky, 2007 WL 1876456, *4

(E.D. Ky. June 26, 2007). 

Though the Montreal Convention replaced the Warsaw Convention, it intentionally

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4

 The language of Article 17 of the Warsaw Convention similarly provides: “The carrier shall be

liable for damage sustained in the event of death or wounding of a passenger or any other bodily injury

suffered by the passenger, if the accident which caused the damage so sustained took place on board the

aircraft or in the course or any of the operations of embarking or disembarking.” (emphasis added). 

5

“contain[ed] provisions which embrace similar language as the Warsaw Convention.” Watts v.

American Airlines, Inc., 2007 WL 3019344, *2 (S.D. Ind. Oct. 10, 2007). This was done in an

effort to avoid “a complete upheaval of the common law surrounding the Warsaw Convention.” 

Id. (internal citation and quotation omitted). One such example of similar language, pertinent to

the instant action, can be seen in Chapter 3, Article 17, Section 1 of the Montreal Convention

(hereafter referred to simply as “Article 17"):

The carrier is liable for damage sustained in case of death of bodily injury or a

passenger upon condition only that the accident which caused the death or bodily

injury took place on board the aircraft or in the course of any of the operations of

embarking or disembarking. 

Montreal Convention, Article 17 (emphasis added).4

 

The Montreal Convention, as did the Warsaw Convention, preempts remedies under

domestic law, whether or not the application of the Montreal Convention will result in a recovery

in a particular case. El-Al Israel Airlines Ltd. v. Tseng, 525 U.S. 155, 161 (1999); see also Best

v. BWIA West Indies Airways Ltd., 581 F.Supp.2d 359 (E.D.N.Y. 2008); Baah v. Virgin Atlantic

Airways Ltd., 473 F.Supp.2d 591 (S.D.N.Y. 2007). “[R]ecovery for a personal injury suffered on

board an aircraft . . . if not allowed under the Convention, is not available at all.” Tseng at 161. 

This cause of action implicates the provisions of the Montreal Convention. Chapter 1,

Article 1, Section 1 of the Montreal Convention states that “[t]his Convention applies to all

international carriage of persons, baggage or cargo performed by aircraft for reward.” Further,

Article 17 of the Montreal Convention specifically encompasses claims related to the death of a

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6

passenger. Thus, the provisions of the Montreal Convention apply to the instant case. 

II. The Montreal Convention Preempts Plaintiff’s State Law Claims.

As outlined by the Supreme Court in Tseng, “recovery for a personal injury suffered on

board an aircraft . . . if not allowed under the Convention, is not available at all.” Tseng at 161. 

Numerous federal district and circuit courts have relied on Tseng in preempting state law causes

of action which encompass claims covered by the Montreal Convention. 

In Aikpitanhi v. Iberia Airlines of Spain, 553 F.Supp.2d 872 (E.D. Mich. 2008), the

plaintiffs, parents of the deceased who died on an international flight, claimed that the Alien Tort

Claim Act, 28 U.S.C. § 1350, provided the Court with subject matter jurisdiction outside the

boundaries of the Montreal Convention. Aikpitanhi, 553 F.Supp.2d at 874. This Court, relying

upon the Supreme Court’s Tseng opinion, roundly rejected an argument similar to that made by

the Plaintiffs in the instant action: 

. . . [T]he Supreme Court has stated that the Montreal Convention, and its

predecessor the Warsaw Convention, affords the exclusive remedy for any

personal injury suffered on board an international flight or during any operations

of embarking or disembarking. In the present action, Plaintiffs allege the

Decedent died as a passenger on board an international flight. Pursuant to Tseng,

Plaintiffs’ exclusive remedy lies under the Montreal Convention. As a result,

Plaintiffs’ arguments that a separate cause of action exists such that subject matter

jurisdiction may be independently found are without merit. 

Aikpitanhi, 553 F.Supp.2d at 879.

In the instant case, stemming from the death of Yayha on an international flight, Plaintiff

brings state law causes of action under theories of negligence (Count I), gross negligence (Count

I), negligence per se (Count II), false imprisonment (Count III), intentional infliction of

emotional distress (Count IV), respondeat superior liability (Count V), and breach of warranty

(Count VI). [See Pl.’s Complaint, Doc. No. 1]. These causes of action, alleging state law tort

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5 See, e.g., Robinson v. Virgin Atlantic Airways, Ltd., 2006 WL 212295, *3 (S.D.N.Y. Jan. 27,

2006) (holding Tseng preempts state law negligence claim); Kaur v. All Nippon Airways Co., Ltd., 2006

WL 997329, *3 (N.D. Cal. April 17, 2006) (gross negligence claim preempted); Igwe v. Northwest

Airlines, Inc., 2007 WL 43811 (S.D. Tex. Jan. 4, 2007) (negligence per se claim preempted); Tseng, 525

U.S. at 176 (false imprisonment claim preempted); Bloom v. Alaska Airlines, 2002 WL 1136727, *2 (9th

Cir. May 30, 2002)(unpublished) (intentional infliction of emotional distress claim preempted);

Shirobokova v. CSA Czech Airlines, Inc., 376 F.Supp.2d 439, 442 (S.D.N.Y. 2005) (breach of warranty

claim preempted). Plaintiff’s claim for “respondeat superior” liability in Count V likewise fails for want

of an underlying cause of action under tort law. 

7

and contract claims, are preempted under the Montreal Convention as discussed in Tseng and

Aikpitanhi. Furthermore, each specific cause of action brought by Plaintiff in this case has

previously been dismissed by a federal court in similar actions.5

 

Pursuant to Tseng, Plaintiff’s exclusive remedy, if any, lies under the Montreal

Convention. For this reason, the Court GRANTS Northwest’s Motion to Dismiss [Doc. No. 6]

with respect to Plaintiff’s state law causes of action [Counts I - VI].

III. The Montreal Convention Bars Plaintiff’s Claim for Punitive/Exemplary Damages. 

In Count VII of his Complaint, Plaintiff brings a claim for punitive and/or exemplary

damages. Such damages, however, are expressly barred by the Montreal Convention:

In the carriage of passengers, baggage, and cargo, 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 of liability as are set out in this

Convention . . . In any such action, punitive, exemplary, or any other non-compensatory

damages shall not be recoverable.

Montreal Convention, Chapter 3, Article 29 (emphasis added). 

Plaintiff’s only reply to this argument by Northwest is found in ¶5 of his Response [Doc.

No. 13], where he admits that “to the extent that the Montreal Convention is solely ultimately

deemed to apply the cause of action for punitive and exemplary damages only may be barred.” 

As discussed supra, Plaintiff’s Complaint is controlled by the Montreal Convention. The Court

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8

therefore GRANTS Northwest’s Motion to Dismiss [Doc. No. 6] with respect to Plaintiff’s

claim for punitive or exemplary damages [Count VII]. 

IV. The Court Grants Plaintiff Leave to Amend His Complaint.

In his supplementary brief [Doc. No. 25] filed on June 30, 2009, Plaintiff argues in the

alternative that “. . . Plaintiffs should be given an opportunity to amend the Complaint to

precisely describe the negligence or other wrongful act or omission of the carrier or its servants

or agents pursuant to Article 21 of the convention.” [Doc. No. 25, p.6]. Rule 15 of the Federal

Rules of Civil Procedure permits a party to amend its pleadings with the Court’s leave, and

instructs that courts “should freely give leave when justice so requires.” FED. R. CIV. P. 15(a)(2).

Article 17 of the Montreal Convention imposes liability on an air carrier for a passenger’s

death or bodily injury caused by an “accident” that occurred in connection with international

flight. The issue in this case is, therefore, whether the events surrounding Yahya’s death could

constitute such an “accident.” If not, a grant by the Court of leave for the Plaintiff to amend his

Complaint would be futile. 

Northwest argues that “not every injury sustained during an airplane flight constitutes an

accident for purposes of liability under the Montreal Convention.” [Def.’s Br., Doc. No. 6,

p.10.]. While true, Northwest goes on to argue that “Plaintiff’s lawsuit and allegations do not

present any facts of an accident.” Id. at 11. In their reply brief, Northwest further alleges that

“[f]ailure to divert is not an accident.” [Def.’s Reply, Doc. No. 17, p.4, citing Krys. v. Lufthansa,

119 F.3d 1515 (11thCir. 1997)]. Plaintiff argues, on the other hand, that the Supreme Court’s

holding in Olympic Airways v. Husain, 540 U.S. 644 (2004) stands for the proposition that an

airline’s refusal to assist a passenger in need of medical treatment can constitute an “accident”

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under the Montreal Convention. 

The United States Supreme Court first examined the scope of the word “accident” within

Article 17 of the Montreal Convention in Air France v. Saks, 470 U.S. 392 (1985). In Saks, a

passenger experienced severe inner ear pain during an international flight’s descent, eventually

becoming permanently deaf in one ear as a result. All available evidence indicated that the

aircraft’s pressurization system had operated in the usual manner. Saks at 394-95. In denying

recovery to the passenger, the Supreme Court held that “liability under Article 17 of the Warsaw

Covnention arises only if a passenger’s injury is caused by an unexpected or unusual event or

happening that is external to the passenger.” Id. at 405 (emphasis added). 

Saks did allow, however, for fact questions as to the “cause” of the accident to be decided

at trial, as “[i]n cases where there is contradictory evidence, it is for the trier of fact to decide

whether an accident as here defined caused the passenger’s injury.” Id. (internal quotation

omitted). However, where the injury “indisputably results from the passenger’s own internal

reaction to the usual, normal, and expected operation of the aircraft,” as was the case in Saks, “it

has not been caused by an accident.” Id. at 406. 

The Supreme Court confronted the very issue faced in the instant case in Olympic

Airways v. Husain, 540 U.S. 644 (2004). In Husain, an athsmatic passenger died after a

stewardess refused, despite the passenger’s repeated pleas and explanation of his health

problems, to move his seat away from the smoking section on an international flight. The

Supreme Court framed the issue in Husain, as well as their answer to that issue, as follows:

The issue we must decide is whether the “accident” condition precedent to air

carrier liability under Article 17 is satisfied when the carrier’s unusual and

unexpected refusal to assist a passenger is a link in a chain of causation resulting

in a passenger’s pre-existing medical condition being aggravated by exposure to a

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normal condition in the aircraft cabin. We conclude that it is. 

Husain at 646. Specifically, the Supreme Court held that “[t]he relevant accident inquiry under

Saks is whether there is an unexpected or unusual event or happening. The rejection of an

explicit request for assistance would be an event or happening under the ordinary and usual

definitions of these terms.” Id. at 654-55. 

Other cases, citing Husain, have found an airline’s refusal to assist with a passenger’s

medical emergency constituted an “accident” under Article 17. Watts v. American Airlines, Inc.,

2007 WL 3019344 (S.D. Ind. Oct. 10, 2007) found that the airline’s failure to respond to a

passenger’s heart attack could constitute a link in the chain causing an “accident.” Watts at *4. 

A similar holding was reached with respect to another heart attack case, Fulop v. Malev

Hungarian Airlines, 175 F.Supp.2d 651 (S.D.N.Y. 2001). Fulop stated as follows: 

. . . in this case the crew is alleged to have been called upon to exercise precisely

such additional and divergent judgements and to have made the choice to

continue the Flight to its appointed destination, presumably aware of the stricken

passenger’s condition. In other words, the carrier made a deliberate choice to

operate the flight in one way rather than another, to pursue a course under one

procedure instead of another. 

Fulup at 670. 

Northwest argues that “[f]ailure to divert is not an accident.” [Def.’s Reply Br., Doc. No.

17, p.4]. In support of this position, Northwest relies upon Krys v. Lufthansa, 119 F.3d 1515,

1521 (11th Cir. 1997), where the Eleventh Circuit held that an airline crew’s refusal to divert

based upon a heart attack was not an accident. While Northwest accurately cites Krys, the

Eleventh Circuit’s holding in that case was decided seven years before Husain. 

While Plaintiff’s Complaint does not specify exactly what malady Yahya suffered from

while en route to the Republic of Yemen, Plaintiff does allege that Yayha made the Yemenia2:08-cv-14789-SFC-MKM Doc # 28 Filed 08/06/09 Pg 10 of 12 Pg ID 461
11

Yemen crew aware of his condition, and that he needed to land immediately to receive medical

attention. [Pl.’s Complaint, Doc. No. 1, ¶4]. Faced with this request, the Yemenia-Yemen flight

crew instead told Yahya he would need to wait for an hour and a half while the airplane finished

its flight to Sana’a. Id. at ¶6. Plaintiff also alleges that this failure, in part, contributed to the

death of Yahya. Id. at ¶7. 

On these facts, under Husain, a jury could find the Yemenia-Yemen crew’s decision not

to land the airplane in Saudi Arabia was an “event or happening” constituting an “accident”

under Article 17 of the Montreal Convention. As such, the Court finds that Plaintiff can make a

prima facie cause of action under the Montreal Convention, and leave to amend Plaintiff’s

Complaint would therefore not be futile. 

The Court notes that at least one other district court, when faced with similar state law

causes of action subject to dismissal in light of Tseng, has granted leave for the plaintiff to

amend their Complaint to comport with the Warsaw or Montreal Conventions:

Accordingly, plaintiff’s state law claims are preempted, and these claims are

DISMISSED WITH PREJUDICE. If plaintiff wishes to pursue a claim under the

Warsaw Convention, plaintiff may file an amended complaint on or before May

15, 2006. 

Kaur v. All Nippon Airways Co., Ltd., 2006 WL 997329, *3 (N.D. Cal. April 12, 2006). 

The Court further notes that Plaintiff’s Complaint admits that this cause of action may be

governed, “in whole or in part,” by the Montreal Convention. [Pl.’s Complaint, Doc. No. 1, ¶25]. 

This pleading, coupled with the underlying facts pled in Plaintiff’s Complaint, placed Northwest

on notice of a possible Montreal Convention claim before the Convention’s two-year statute of

limitations expired. Given these facts, the Court GRANTS LEAVE for Plaintiff to amend his

Complaint to comport with the Montreal Convention. If Plaintiff wishes to pursue a claim under

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12

the Montreal Convention, Plaintiff must file an amended complaint on or before Friday,

September 11, 2009. 

CONCLUSION 

For the reasons explained above, this Court GRANTS Northwest’s Motion to Dismiss

[Document No. 6], and GRANTS LEAVE for Plaintiff to file an amended Complaint

comporting with the Montreal Convention against Defendant Northwest on or before Friday,

September 11, 2009.

IT IS SO ORDERED.

S/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: August 6, 2009

I hereby certify that a copy of the foregoing document was served upon counsel of record on

August 6, 2009, by electronic and/or ordinary mail.

S/Jennifer Hernandez 

Case Manager

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