Montreal Convention cancels ticketholders’ canceled ticket claims

June 23, 2016

Papaiyawala v. Saudi Arabian Airlines (E.D.V.A. Apr. 15, 2016).  The plaintiffs, a married couple, had purchased tickets for the wife’s parents to travel from India to New York.  Several days before the outbound flight, Saudia canceled the tickets in response to a fraud alert from the plaintiffs’ credit card company and then initiated the process of refunding the purchase price to the plaintiffs’ account.

The plaintiffs and the parents did not find out that the tickets had been canceled until the parents attempted to check in at the airport in India.  Saudia informed the parents that they could travel on the flight at issue if they paid the difference between the then-current fare and the ticketed fare, but the parents declined this offer and made alternate travel arrangements.  About two weeks later, the refund for the tickets was credited to the plaintiffs’ credit card account.

The plaintiffs filed a state court action seeking damages of $5,000 for the mental stress, embarrassment and inconvenience that their parents experienced as a result of the airline’s cancelation of the tickets.  Saudia removed the case to federal court and moved to dismiss, contending that the plaintiffs’ claim was for delay and thus exclusively governed by Article 19 of the Montreal Convention, which did not provide any relief for the plaintiffs.  Saudia made a compelling argument to distinguish the cases holding that boarding denial claims are not governed by Article 19 because such claims seek relief for contractual nonperformance, not delay; Saudia argued that, by the time the parents attempted to check in for the flight, there was no longer any contract in existence because Saudia had already canceled the tickets and initiated the refund.  Saudia then contended that the plaintiffs could not recover under Article 19 because damages for purely mental injuries are not recoverable under the Convention.

As a secondary argument, Saudia contended that the plaintiffs lacked standing to sue for any mental injuries that the parents had sustained.

The court concurred with Saudia’s Montreal Convention argument and rejected the plaintiffs’ argument that they had actionable claims under 14 C.F.R. § 250.5 and 14 C.F.R. § 259.8.  Accordingly, the court dismissed the case and denied leave to amend the complaint.  The court did not discuss Saudia’s standing argument.

Airline not liable for customer’s travel-related misfortunes

April 14, 2016

Naqvi v. Saudi Arabian Airlines, Inc. (D.D.C. Feb. 12, 2016).  The plaintiff’s air travel originating at Washington Dulles International Airport included a connecting flight on Saudi Arabian Airlines from Jeddah, Saudi Arabia to Islamabad, Pakistan.  Upon arriving at Jeddah, the plaintiff learned that the flight to Islamabad would be departing from a distant terminal, not the one indicated on his boarding pass, beginning what the court described as a series of “travel nuisances” for the plaintiff.

According to the plaintiff, airline personnel refused to arrange transportation for him to the departure terminal.  After making “unimaginable efforts” to locate an ATM in order to obtain Saudi currency and “paying multiple taxi charges,” the plaintiff was dropped off by a taxi “several hundred feet” from the departure terminal’s main entrance due to construction work in the vicinity.  The plaintiff, who had had “major cardiac surgery,” walked that distance carrying his luggage.  Upon arriving at the departure gate, the plaintiff searched for drinking water so he could take his diabetes medication, but none was available so he used water from a bathroom sink.  The plaintiff alleged that the bathroom was “unsanitary and nauseating.”  During the flight, the plaintiff “began to experience arm, neck, and leg pain.”  In Pakistan, the plaintiff sought treatment from a doctor, who diagnosed the plaintiff as having certain conditions resulting from “handling of heavy luggage at various airports.”

In his pro se complaint against Saudia, the plaintiff advanced causes of action for breach of the contract of carriage’s “implied term that Defendant shall provide services with reasonable care and skill” and negligence, demanding compensatory damages of $100,000.  Saudia removed the case to federal court and, after discovery, moved for summary judgment.

The court granted Saudia’s motion.  The court, applying Virginia law, ruled that the plaintiff’s implied covenant of good faith and fair dealing claim failed because the airline had not exercised its contractual discretion in bad faith, in that the airline did not have any control over the terminal change or the condition of terminal’s bathroom and did not have any duty to provide him with drinking water in the terminal.  The court ruled that the plaintiff’s negligence claim failed because the airline’s ordinary duty of care did not include notifying him of the terminal change, transporting him to the departure terminal, maintaining the bathroom in the terminal or providing him with drinking water there.

Saudia made a secondary argument that the plaintiff’s claims were preempted by the federal Airline Deregulation Act, but the court did not reach this argument.

Note:  The plaintiff had another case in the same court against another airline.


Passenger’s claim based on seating-related injury fails under Montreal Convention

March 2, 2016

Plonka v. US Airways (E.D. Pa. Oct. 27, 2015).  During a flight from Philadelphia to Germany, the passenger/plaintiff was seated behind a seat under which was affixed a hard plastic box, known as an “IFE box,” that contained wiring for the seatback entertainment system.  The plaintiff alleged in his pro se complaint that, during the takeoff, he sustained an “open wound” when his right leg “bang[ed] against” the box.  The plaintiff sought damages of $125,000 for loss of income and pain and suffering.

After discovery, US Airways moved for summary judgment on the grounds that the plaintiff lacked an actionable claim under the Montreal Convention, which exclusively governed the plaintiff’s claim, because his injury did not result from an “accident” within the meaning of Article 17(1) of the Convention.  Under that provision, “[t]he carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”  To establish in a U.S. court that an “accident” under Article 17(1) took place, a plaintiff must prove that the injury was caused by “an unexpected or unusual event” that was “external to the passenger.”

In support of its motion, US Airways contended that it had established beyond dispute that “Airbus, the manufacturer of the aircraft on which Mr. Plonka flew, installed the IFE box in compliance with a design approved by the FAA” and that “[s]eating a passenger near an aircraft component that was installed in compliance with a government-approved design cannot possibly qualify as an unexpected or usual event.”  In opposition, the plaintiff conceded that it was not unusual for a passenger to be seated near an IFE box, but argued that it was his injury from impacting such box that was unusual.

The court sided with US Airways, noting that the U.S. Supreme Court has ruled “it is the cause of the injury – rather than the occurrence of the injury – that must satisfy the definition of ‘accident.’ ”  In the court’s view, while the occurrence of the plaintiff’s injury may have been unusual, there was nothing unusual about the cause of the injury, i.e., the plaintiff being seated behind an FAA-approved aircraft component that was not defective in any manner.  Accordingly, the court granted US Airways’s motion.

Montreal Convention’s notice provision spoils shipper’s damaged vegetables claim

January 28, 2016

Mas & Sons Jardiniers, Ltd. v. Florida West International Airways, Inc. (Fla. 3d DCA Oct. 7, 2015).  The shipper/plaintiff alleged that it had sustained damages because Florida West failed to timely release fresh vegetables it had transported by air from Guatemala and Costa Rica to Miami.  Due to logistical problems involving payment for the cargo, its release was delayed.  The plaintiff then had a USDA inspection performed, which showed that the vegetables were “exhibiting signs of early stages of decay.”  As a result, when the drivers of the trucking company hired by the plaintiff picked up the cargo, they signed the air waybills “Receive/Protest.”

The plaintiff alleged that some of the vegetables had to be destroyed and that it had to sell the remainder at a reduced price.  The plaintiff sent the first written notice of its claim to Florida West 28 days after the cargo was released to the trucking company, although the plaintiff had given verbal notice of its claim to the carrier prior to that time.

Florida West moved for summary judgment on the grounds that the plaintiff had failed to comply with Article 31 of the Montreal Convention, which required that the plaintiff submit its damage claim “in writing” within “fourteen days from the date of receipt” of the cargo.  The plaintiff argued that fact issues pertaining to the “Receive/Protest” air waybill notations and its verbal claim notice precluded summary judgment.  The court disagreed.  Consistent with well-established caselaw, the court strictly construed Article 31, ruling that the “Receive/Protest” notations were insufficient because they failed to adequately inform the carrier of the nature of the damage and that timely written notice was required even if the carrier had actual knowledge of the damage.

Passenger’s fear of contagious disease not compensable under Montreal Convention

November 30, 2015

Jane Doe v. Etihad Airways, P.J.S.C. (E.D. Mich. Oct. 13, 2015).  During a flight from Abu Dhabi to Chicago, the passenger/plaintiff was pricked by a discarded syringe when she reached into in a seatback pocket.  The plaintiff sought treatment from her physician, who prescribed antiviral drugs and HIV and hepatitis tests.  The tests, which were administered over the course of a year, showed that the plaintiff had not developed HIV.

The plaintiff sued Etihad under the Montreal Convention.  She alleged that that her injury had caused her emotional distress and mental anguish, primarily in the form of her fear of developing HIV or hepatitis.  Her husband alleged a derivative loss of consortium claim.

Etihad moved for partial summary judgment on the grounds that the plaintiff’s fear of contagion damages were not recoverable under the Montreal Convention because they did not arise from a “bodily injury” within the meaning of Article 17(1) of the Convention.  That provision states as follows:  “The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”  Etihad cited numerous cases arising under the Montreal Convention, and under its Warsaw Convention predecessor, rejecting passengers’ recovery of emotional distress damages that were not caused by any “bodily injury.”

Etihad argued that the plaintiff’s fear of contagion damages were not caused by the “very minor and brief pain” resulting from the needlestick, i.e., the only “bodily injury” that occurred, but by her “unfounded fear of exposure to a contagious disease.”  Etihad also argued that the plaintiff’s fear of contagion damages were too speculative to be recovered under Michigan law.

The court agreed with Etihad’s Montreal Convention argument and granted the airline’s motion.  The court did not consider Etihad’s Michigan law argument.

Montreal Convention applies, and time-bars, passenger’s claims despite injury’s occurrence during domestic flight

October 11, 2015

Cattaneo v. American Airlines, Inc. (N.D. Cal. Sept. 24, 2015).  The passenger/plaintiff traveled roundtrip on American’s flights between LAX and Cozumel, Mexico, via DFW, in June 2011.  In her complaint filed in November 2014, the plaintiff alleged that, during the DFW-LAX flight, a flight attendant gave her “an unlidded cup of hot water,” which spilled on her lap when the aircraft encountered turbulence, causing injuries.

American moved to dismiss on the ground that the plaintiff’s claims were time-barred by Article 35(1) of the Montreal Convention, which extinguishes the right to damages if an action is not commenced within two years “from the date of arrival at the destination.”  American noted that the Convention applied even though the alleged injury occurred during the domestic DFW-LAX flight because, under Article 1(2), “international carriage” triggering the application of the Convention exists “where or not there be a break in the carriage.”

The plaintiff responded by arguing that the Convention did not apply because the DFW-LAX flight was “completely domestic.”  The court agreed with American, finding that the plaintiff’s itinerary, which included same-day travel from Cozumel to LAX, objectively demonstrated that the DFW-LAX flight was “part of her longer international trip.”  Accordingly, the court granted American’s motion to dismiss.

ATSA immunizes airline and employee from liability to customer who made bomb reference and disparaged TSA

September 30, 2015

Baez v. JetBlue Airways Corporation (2d. Cir. July 16, 2015).  The plaintiff checked baggage for her JetBlue flight from JFK to Austin, Texas.  However, she appeared at the gate late, after the aircraft’s door had been closed, so the gate agent refused to let her board.  The plaintiff admitted that she then made what the Second Circuit described as a “cryptic reference to the possibility of a bomb in her luggage”:  “Isn’t it a security risk to let a bag go on a plane without a passenger, what if there was a bomb in the bag?”  The plaintiff alleged that the agent responded, “TSA agents would know if there was a bomb in the bag,” to which the plaintiff replied, “TSA–my ass,” and walked away.

The gate agent reported the conversation to her supervisor, who alerted the airline’s security personnel and TSA.  JetBlue rerouted the aircraft as a security measure and searched all the checked baggage after it landed.  The plaintiff’s bag did not contain a bomb.  But it did contain marijuana residue.  The plaintiff was charged under 49 U.S.C. § 46507(1) with making a false bomb threat.  The government dropped the charge, and the plaintiff pleaded guilty to charges based on the marijuana residue found in her bag.

The plaintiff sued JetBlue for “a host of claims,” including negligent supervision, retention, training and hiring, defamation, false arrest and intentional infliction of emotional distress.  She sued the gate agent as well.

The district court granted summary judgment to the defendants on the ground that they were immune from suit under the Aviation and Transportation Security Act, 49 U.S.C. § 44941.  Among other things, ATSA immunizes airlines and their employees from any liability for reporting “any suspicious transaction relevant to a possible violation of law or regulation, relating to air piracy, a threat to aircraft or passenger safety, or terrorism” to a law enforcement officer.  Immunity is not provided for reports that are “materially false.”  A report is materially false if an accurate report regarding the “suspicious transaction” at issue would have had a different effect on the mind of a “reasonable security officer,” i.e., if an accurate report would have caused such officer to decide not to investigate the report.

Before the Second Circuit, the plaintiff argued that the district court had erred by deciding whether the gate agent’s statements were materially false at the summary judgment stage, as that issue should been decided by a jury.  The appeals court disagreed and affirmed the district court.  It concluded that the gate agent’s report was not materially false because “a reasonable officer would necessarily have followed up on the statements Baez admitted she made,” i.e., such officer would have investigated the “report of a disgruntled passenger who adverted to a bomb in luggage and deprecated the agency responsible for detecting such bombs.”


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