Introduction to Aviation Law Cause of Action Exclusivity in the Warsaw and Montreal Conventions "Win in state court, lose in federal court." The lament of the plaintiff aviation litigator while crying-not always metaphorically speaking-into their beer at the end of another frustrating day battling before the federal bar. It is no secret that U.S. state courts are generally regarded as being pro-plaintiff, while the U.S. federal courts are seen as being pro-defendant. This makes itself felt in

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... y number of ways, some of which can be prejudicial to the plaintiff's chances of success. For example, dismissal on grounds of forum non conveniens is much more likely to arise in federal court than in state court. For such reasons, the plaintiff aviation litigator will often seek to secure a state court forum by pleading the claim on state law, attempting to avoid tripping over any hurdles that could see their case removed to a federal court, such as a diversity of citizenship or federal question matter. However, when it comes to claims to which the Warsaw Convention 1929 1 or the Montreal Convention 1999 (MC99) 2 apply, keeping a case in state court has proved a Sisyphean task. These conventions are multilateral treaties governing the liability of the carrier for international carriage by air of passengers, baggage, and cargo. They contain uniform rules pertaining to matters such as liability, jurisdiction, defenses, time limitations, and so on. Thus, where a passenger is killed in an aviation accident to which one of these conventions applies, an action for damages, e.g., a wrongful death action, must be brought against the carrier subject to its provisions. Where the plaintiff sues in U.S. state court, e.g., pleading a state-law cause of action for wrongful death, the immediate response of the defendant carrier will be to have the action removed to U.S. federal court. When the plaintiff then seeks remand back to state court, the defendant carrier will argue that the relevant convention provides the cause of action, and, since it is a treaty to which the United States is a party, the cause 1