Von Schoenebeck v. Koninklijke Luchtvaart Maatschappij N.V.

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 Background1

On August 26, 2008, the Schoenebecks…