Klm

FILED

NOT FOR PUBLICATION

AUG 10 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHANNA VON SCHOENEBECK and No. 14-16061

ANDRE VON SCHOENEBECK,

D.C. No. 3:13-cv-04992-SI Plaintiffs - Appellants,

v. MEMORANDUM*

KONINKLIJKE LUCHTVAART

MAATSCHAPPIJ N.V., AKA Royal Dutch Airlines,

Defendant - Appellee.

Appeal from the United States District Court for the Northern District of California Susan Illston, Senior District Judge, Presiding

Submitted May 9, 2016** San Francisco, California

Before: WARDLAW, PAEZ, and BEA, Circuit Judges.

Johanna and Andreas von Schoenebeck (“the von Schoenebecks”) appeal the

district court’s Rule 12(b)(6) dismissal of their action under the Montreal

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Convention against Koninklijke Luchtvaart Maatschappij N.V., doing business as

KLM Royal Dutch Airlines (“KLM”). We have…

MEMORANDUM **

Johanna and Andreas von Schoenebeck (“the von Schoenebecks”) appeal the district court’s Rule 12(b)(6) dismissal of their action under the Montreal Convention against Koninklijke Luchtvaart Maat-schappij N.V., doing business as KLM Royal Dutch Airlines (“KLM”). We have jurisdiction under 28 U.S.C. § 1291 . We affirm.

The district court correctly determined that the von Schoenebecks’ Montreal Convention claim is untimely. Under Article 29 of the Montreal Convention, “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.” Convention for the Unification of Certain Rules for International Carriage by Air art. 29, May 28, 1999, S. Treaty Doc. No. 106-45 (“Montreal Convention”). One such “limit[ ] of liability” is contained in Article 35(1), which provides:

Id. art. 35(1). “Taken together, Articles 29 and 35(1) require that a claim for damages under the Convention must be filed within two years of the date upon which the aircraft arrived, or ought to have arrived, at its destination.” Narayanan v. British…

dissenting:

My colleagues in the majority conclude that the Schoenebecks cannot recover damages from KLM because of a provision in the Montreal Convention stating that “[t]he right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination.” Montreal Convention art. 35(1). But as my colleagues acknowledge, the Schoenebecks did file “an action” within the two-year period. Therefore, their “right to damages” cannot “be extinguished” by Article 35(1).

I. Factual and Procedural Background

On August 26, 2008, the Schoenebecks boarded a KLM flight from Amsterdam to San Francisco. This .was the second and final segment of their flight itinerary, which originated in Johannesburg, South Africa. 2 During the flight to San Francisco, Mrs. Schoenebeck bent forward to pick up her handbag. The passenger seated in front of Mrs. Schoenebeck pushed down on the headrest of his seat, which caused the seat backrest to malfunction and collapse on her. The seat crushed Mrs. Schoene-beck’s head, neck, and back. She suffered serious neck and back injuries that required immediate medical attention. According to Mrs.…