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

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.


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