Airline that took all reasonable measures in response to bird strike not liable for international travel delay

September 15, 2016

Bernfeld v. US Airways, Inc. (N.D. Ill. Apr. 20, 2016).  The plaintiffs, three family members, were traveling from Israel to Chicago, with a connection in Philadelphia.  The US Airways aircraft that was to operate the connecting flight sustained a bird strike en route to Philadelphia and was removed from service so the airline could conduct a mandatory safety inspection.  US Airways canceled the flight after it was unable to locate a substitute aircraft.  The airline rebooked the plaintiffs on the next available flight to Chicago, which arrived ten hours later than the original scheduled arrival time.

In their class action complaint, the plaintiffs alleged that, by delaying their travel, US Airways was liable under the Montreal Convention, breached its Contract of Carriage and violated Israel’s Aviation Services Law.  The plaintiffs voluntarily dismissed their class action claims near the end of discovery.

US Airways then moved for summary judgment.  As to the Montreal Convention, US Airways contended that it was absolved from liability for the delay because undisputed evidence proved that it took all reasonable measures to avoid the delay by trying to locate a substitute aircraft and then by rebooking the plaintiffs on the next available flight to Chicago.  Article 19 of the Convention provides in part that “the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.”

The plaintiffs argued that, because US Airways allegedly did not have policies or procedures in place to deal with delays, a material fact dispute preventing summary judgment existed on the issue of whether the airline took all reasonable measures to avoid the delay.  The court ruled that (i) undisputed evidence proved that the airline did have delay-related policies and procedures in place, (ii) even the absence of such policies and procedures would not compel the conclusion that the airline did not take all reasonable measures to avoid the delay, and (iii) the airline was absolved from liability under Article 19 because undisputed evidence demonstrated that it did in fact take all reasonable measures to avoid the delay.

The court then ruled that the plaintiffs’ contract claim failed because US Airways’s Contract of Carriage provided that the Montreal Convention prevailed over any inconsistent contract provisions, and the court had previously determined that the airline was not liable under Article 19 of the Convention.  Finally, the court ruled that Israel’s Aviation Services Law, much like EU Regulation 261/2004 (citing the Seventh Circuit’s 2015 opinion in Volodarskiy v. Delta Airlines, Inc.), is not enforceable in courts in the United States.

Accordingly, the court granted US Airways’s summary judgment motion.  The plaintiffs appealed but, on July 18, 2016, the Seventh Circuit dismissed the appeal due to the appellants’ failure to prosecute.

Airline not liable for refusing to board customer who admitted she appeared to be drunk

September 12, 2016

Pipino v. Delta Air Lines, Inc. (S.D. Fla. July 18, 2016).  When the plaintiff lined up at the gate to board the flight from LaGuardia Airport to Tampa, she was not at her best; she had a chipped a tooth the previous night, had a painful blister on her foot and had consumed three alcoholic beverages during the previous few hours.  After Delta gate personnel asked the plaintiff to step out of the line, they smelled alcohol on her.  They informed her that she would not be permitted to board because she was inebriated.

Upon hearing that she had been refused boarding, the plaintiff felt symptoms of a panic attack.  The plaintiff requested that the Delta personnel call paramedics, but she was not sure if the personnel understood her because she was upset and her chipped tooth prevented her from speaking clearly.

The plaintiff remained in the departure area of the terminal until after midnight, when the terminal was closing.  Delta personnel told the plaintiff that she needed to leave.  The plaintiff responded that she was having a panic attack and needed medical assistance.  After airline personnel reported the situation to the Port Authority, two officers arrived.  Their presence calmed the plaintiff, and she was able to leave the terminal.  The plaintiff claimed that she had panic-related symptoms for several days but admitted that she did not sustain any physical injury during the incident.

The plaintiff’s complaint against Delta alleged one count, for negligence.  She alleged that Delta “breached its duty of care to the Plaintiff by disregarding Plaintiff’s disabled circumstances, panic attack and thereby failed to discern that Plaintiff was injured in her mouth and in her foot, which made her appear inebriated, even though she was not inebriated” and “breached its duty to exercise reasonable care for the safety of Plaintiff by ignoring Plaintiff’s repeated requests for medical assistance in the face of what was obviously a passenger in an abnormal state of emotional distress.”

Delta moved for summary judgment, first arguing that federal law preempted the plaintiff’s boarding-related negligence claim.  Delta cited Section 121.575(c) of the Federal Aviation Regulations, which provides that “[n]o certificate holder may allow any person to board any of its aircraft if that person appears to be intoxicated.”  Delta also relied on 49 U.S.C. § 44902(b), under which an air carrier “may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety.”  The plaintiff responded that Delta had an obligation to determine whether the plaintiff was in fact intoxicated, and that its failure to do so rendered its decision that she appeared intoxicated arbitrary and capricious, thus eliminating the preemptive effect of the regulation and the statute.

Delta also argued that the plaintiff’s negligent infliction of emotional distress claim failed under Florida’s “impact rule,” as there was no evidence that the plaintiff had sustained physical injuries as a result of an impact.  The plaintiff argued that she satisfied the impact rule because she had experienced physical manifestations from her panic attack.

The court concurred with Delta’s arguments.  As to preemption by federal law, the court ruled that the plaintiff’s boarding-related negligence claim was preempted because the plaintiff’s admission, in her complaint, that her chipped tooth and foot blister “made her appear inebriated” foreclosed her contention that Delta’s determination that she was intoxicated was arbitrary and capricious.  The court then held that the impact rule barred the plaintiff’s claim that Delta had negligently failed to obtain medical assistance for her because the plaintiff had failed to present evidence that any Delta employee had touched her and because panic attacks are “emotional disturbances,” not physical injuries.  Accordingly, the court granted summary judgment for Delta.

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.