Small v. America West Airlines, Inc. (D.N.J. Oct. 30, 2007). The passenger alleged that the airline was liable under the New Jersey Consumer Fraud Act because it had tortiously denied losing his baggage, thereby preventing him from filing a claim against his insurance company. The airline argued that the passenger’s state law claim was preempted by the Warsaw Convention. In response, the passenger contended that his claim was not preempted because he was seeking tort damages, not lost baggage damages, due to the airline’s misrepresentation that it had not lost his baggage.
The court did not buy the passenger’s creative argument. It held that the passenger’s claim was preempted because the Convention requires that all baggage-related claims arising from international air carriage, sounding “in contract or in tort or otherwise,” be brought exclusively under the Convention.