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’s conditions of carriage withstand tropical storm

February 19, 2015

Chen v. China Eastern Airlines Co., Ltd. (N.Y. City Civ. Nov. 20, 2014).  The passenger/plaintiff bought a six-segment China Eastern ticket from an online travel agent.  After taking the first two flights (New York to Shanghai and Shanghai to Manila), the plaintiff took a side trip in the Philippines on a different airline.  The plaintiff alleged that “an unexpected and strangely behaving tropical storm” prevented him from traveling on the third and fourth flights in the sequence (Manila to Shanghai and Shanghai to Urumqi, China) and that he informed China Eastern that he would be available to travel on the fifth and sixth flights (Urumqi to Shanghai and Shanghai to New York).  The third and fourth flights departed as scheduled.

China Eastern refused to allow the plaintiff to travel on the fifth or sixth flights in the sequence.  The airline relied on the conditions of carriage applicable to the ticket, which required that the flight coupons “be used in sequence as specified on the Ticket” and that the failure to use them in sequence “will result in the refusal of CEAIR to provide carriage.”

The passenger arranged for transportation to New York on a different airline and then brought a lawsuit against China Eastern, alleging breach of contract.  After conducting discovery, the parties filed cross-motions for summary judgment.

The court granted the airline’s motion and denied the plaintiff’s motion.  The court ruled that China Eastern’s conditions of carriage had been incorporated in the parties’ contract of carriage by reference because, in accordance with federal regulations, the plaintiff had received notice of such incorporation and the conditions of carriage were available for inspection at the departure airport.  The court also ruled that the conditions of carriage required that the flight coupons be used in sequence and that the plaintiff’s failure to comply with this requirement permitted the airline to refuse him carriage on the remaining flights.  Thus, the court held that the airline had not breached the contract of carriage.

In his motion, the plaintiff, an attorney, advanced several creative arguments.  One argument was that his inability to comply with the flight coupon sequence requirement was excused under the force majeure doctrine.  He contended that his flight to Manila had been canceled due a force majeure event, the tropical storm, and that such event excused his failure to use the coupons in sequence.  China Eastern responded that the force majeure doctrine did not have any logical application to the plaintiff because such doctrine is a defense that is only available to a non-performing party that is alleged to have breached a contract, and that the plaintiff had taken the position that he was the non-breaching party.  The court agreed with the airline.

Conditions of carriage withstand tort claims by delayed passengers

February 1, 2012

Lavine v. American Airlines, Inc. (Md. Special App. Dec. 1, 2011).  Using, the plaintiffs bought two American Airlines tickets for roundtrip transportation originating and terminating at Reagan National Airport, with an intermediate stop at Key West International Airport.  Their outbound itinerary included a connecting flight from Miami International Airport to Key West.  They received an email confirmation that referred to, incorporated, and contained a link to, American’s Conditions of Carriage.

According to the plaintiffs, American personnel at DCA informed them that the flight to MIA was delayed.  The plaintiffs claimed that they requested seats on another flight or a refund and that they only boarded the delayed flight after having been assured by American personnel that, despite the delay, the airline “would provide” them with the connecting flight to Key West.  The plaintiffs alleged that, upon arrival at MIA, American personnel informed them that they only had 15 minutes to reach the gate for the connecting flight.  The plaintiffs asserted that they ran through the airport, inhaling construction debris along the way, but that American did not permit them to board the connecting flight because they had arrived too late.  American obtained and paid for a hotel room for the plaintiffs and gave them a stipend for dinner and breakfast.  The plaintiffs traveled to Key West on an American flight the next day.

In their lawsuit against American, the plaintiffs alleged five counts based on common law theories of negligent and intentional misrepresentation and demanded $10,000 in compensatory damages and $10,000 in punitive damages.  The plaintiffs appealed after the trial court granted the airline’s motion for summary judgment.

The appeals court affirmed the trial court’s judgment.  First, the appeals court held that American was entitled, under 49 U.S.C. § 41707 and 14 C.F.R. Part 253, to incorporate the Conditions of Carriage by reference, that the airline had in fact done so and that the plaintiffs’ allegation that they had not seen, or agreed to, the Conditions of Carriage did not create a genuine dispute of material fact.

The court then held that the Conditions of Carriage operated to prevent the plaintiffs from being able to prove the “false statement” and “reliance” elements of their negligent and intentional misrepresentation claims.  The court held that the plaintiffs could not prove the “false statement” element due to the limitation of liability clauses of the Conditions of Carriage, which provided as follows:  “American is not responsible for or liable for failure to make connections, or to operate any flight according to schedule, or for a change to the schedule of any flight.  Under no circumstances shall American be liable for any special, incidental or consequential damages arising from the foregoing.”

Next, the court held that the plaintiffs had failed to prove reliance on any alleged verbal representations by American personnel because Mr. Lavine, as “an experienced attorney licensed to practice law in Maryland,” could not have justifiably relied on any such representations in view of the limitation of liability clauses in the Conditions of Carriage and a clause providing that “times shown in timetables or elsewhere are not guaranteed and form no part of this contract.”

The court then held that the plaintiffs had failed to establish the proximate cause element of the causes of action because “it is not foreseeable that [appellants] would inhale construction debris and sustain personal injury as a result of an airline scheduling delay.”

Finally, even if the plaintiffs had been able to establish the elements of their causes of action, their claims would not have made it past 49 U.S.C. § 41713(b)(1), the preemption provision of the Airline Deregulation Act, which provides that “a State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.”  The court held that this provision preempted the plaintiffs’ tort claims because they were “related to” American’s boarding procedures, which constituted a “service” provided by the airline.

Note:  This opinion has generated interest among non-aviation business litigators and transactional attorneys in Maryland.  In holding that the Conditions of Carriage were part of the parties’ contracts, the court rejected the plaintiffs’ argument that, even if the Conditions were part of the contracts, there was a dispute of fact because American personnel, by their verbal statements at the airport, had modified the Conditions.  The court relied on the “non-modification” clause of the Conditions in rejecting this argument; that clause stated that “[n]o agent, employee or representative of American has authority to alter, modify or waive any provision of the Conditions of Carriage unless authorized in writing by a corporate officer of American,” and the plaintiffs had not offered proof of a corporate officer’s written modification.  Some commentators have opined that this decision appears to conflict with prior Maryland decisions holding that, despite a contractual requirement that any modifications be written, parties can nevertheless verbally modify contracts.  It appears that the more rigorous “corporate officer” written modification requirement gave the court comfort to enforce the non-modification clause in this case.

Airline not liable for refusing to transport customer who lacked required travel documents

March 28, 2011

Reed v. Delta Airlines, Inc. (S.D.N.Y. Mar. 23, 2011).  The plaintiff and her dog, Blondie, arrived at John F. Kennedy International Airport to check in for their flight to Ghana.  Delta personnel informed the plaintiff that she lacked certain documents that Ghana required for Blondie to enter the country.  The plaintiff put Blondie in a cab to her son’s home and reentered the terminal, only to later discover that Blondie had departed with the plaintiff’s passport.  In accordance with Delta’s conditions of carriage, the airline’s personnel refused to transport the plaintiff due to her failure to present a passport, and they rebooked her on a subsequent flight.

The plaintiff sued Delta, claiming that it was liable for refusing to transport her (and Blondie, the co-plaintiff) under breach of contract, implied contract and covenant of good faith and fair dealing causes of action, and under several tort causes of action as well.  The plaintiff requested damages totaling over $1.2 million.

Delta moved for summary judgment on the grounds that it had not breached the parties’ contract, that the plaintiff’s implied contract and good faith and fair dealing claims failed given the existence of an express contract between the parties and that the plaintiffs’ tort claims were preempted by 49 U.S.C. § 41713(b), the preemption provision of the Airline Deregulation Act.  The court agreed.

The court held that the plaintiff’s breach of contract claim failed because Delta had “acted within its rights” under its conditions of carriage, which specifically allowed the airline to refuse to transport the plaintiff for failing to present a passport and to refuse to transport Blondie because the plaintiff lacked certain documents required by Ghana.  The court agreed that the plaintiff’s implied contract and good faith and fair dealing claims failed because the parties had entered into an express contract.

The court then turned to the plaintiff’s various tort claims.  It held that not only were the plaintiff’s tort claims preempted by the ADA because they all “involve[d] Delta’s boarding practice which is an airline service,” but because also they lacked substantive merit, and it analyzed the deficiencies of each claim.

DOT enforces consumer-friendly interpretation of Montreal Convention baggage liability provisions

January 4, 2011

As previously reported, on March 26, 2009 DOT issued a “Guidance on Airline Baggage Liability and Responsibilities of Code-Share Partners Involving International Itineraries” that states in part as follows:  “Although carriers may wish to have tariff terms that prohibit passengers from including certain items in checked baggage, once a carrier accepts checked baggage, whatever is contained in the checked baggage is protected, subject to the terms of the [Montreal] Convention, up to the limit of 1000 SDRs (Convention, Article 22, para. 2).”  (On December 30, 2009, the 1,000 SDR limit was increased to 1,131 SDRs, which is currently equivalent to about $1,750.)

Upon receiving a consumer complaint after the 90-day grace period for compliance with the Guidance, DOT initiated an enforcement action regarding Air France’s policies and practices with respect to items of checked baggage lost or damaged in transit to or from the United States.  DOT’s specific concern was over the airline’s General Conditions of Carriage, which disclaimed liability for “valuable, fragile or perishable items” in checked baggage and the reliance of the airline’s Customer Relations Department on such disclaimer to deny liability for the loss or damage of jewelry, electronic equipment and similar items.

By a Consent Order issued on December 23, 2010 (Order 2010-12-26), DOT announced that it and Air France had reached a settlement.  Under the settlement, Air France agreed to modify its policies and practices in order to comply with the Guidance and to pay a compromise assessment of $50,000 (and an additional $50,000 should it violate the Order within a year).

Note:  In a November 18, 2010 ruling, the Canadian Transportation Agency struck down an airline’s tariff rule, as well as a proposed revised version of such rule, that purported to preclude an airline’s liability for fragile and valuable items in baggage checked in connection with carriage subject to the Montreal Convention.  See Lukács v. WestJet (Decision No. 477-C-A-2010).  On February 1, 2011, the Federal Court of Appeal denied WestJet’s application for leave to appeal the agency’s decision.

Passenger’s second visit to Fifth Circuit yields additional baggage damages but no attorneys’ fees

May 31, 2009

Muoneke v. Compagnie Nationale Air France (5th Cir. Tex. May 12, 2009).  In 2004, the passenger traveled from Texas to Nigeria on Air France’s flights.  During a change of aircraft in Paris, Air France personnel required that the passenger check the baggage she had carried onto the prior flight.  The passenger claimed that when she arrived in Nigeria, cash and a camera were missing from her baggage.

The passenger sued Air France in a Texas state court.  Air France removed the case and successfully moved for summary judgment.   As previously reported, the Fifth Circuit reversed and remanded the case in 2007 because a factual issue precluded summary judgment.

On remand, the district court determined that the passenger’s actual loss totaled $1,242 but that the Warsaw Convention limited her recovery to $134.  The passenger then applied for an award of attorneys’ fees and costs but the district court held that fees are not recoverable under the Warsaw Convention.

In its opinion, the Fifth Circuit held that because the Montreal Convention had entered into force on November 4, 2003 and the events at issue had taken place in 2004, the Montreal Convention, not the Warsaw Convention, applied to the case.

Next, the appeals court rejected Air France’s argument that it had no liability to the passenger because its contract of carriage disclaimed liability for cash and cameras (and other valuable items) in checked baggage.  The court reasoned that the contract of carriage provision was inconsistent with Article 17 of the Montreal Convention, which subjected the airline to strict liability for baggage loss and damage (up to Article 22(2)’s limit of 1,000 Special Drawing Rights (“SDR”) per passenger).

The Fifth Circuit then held that Air France’s liability was capped at $1,580 under Article 22(2) of the Montreal Convention, which limits an airline’s liability for baggage loss, damage or delay to 1,000 SDRs per passenger (one SDR was equivalent to $1.58 at the time of the district court trial).  The appeals court then reversed the district court’s judgment and entered judgment for the passenger for $1,242, the amount of actual damages that the district court had determined that she had incurred.

Finally, the Fifth Circuit held that the passenger was not entitled to an award of attorneys’ fees but was entitled to recover her costs.  The court reasoned that, although the Montreal Convention does not prohibit the recovery of fees or costs, it does not provide an independent basis on which a court may award such amounts.  As to fees, the court held that they were not recoverable because the passenger had not identified any independent basis, such as a federal or state statute, for a fee award.  As to costs, the court held that they were recoverable under Federal Rule of Civil Procedure 54(d) and remanded the case to the district court for the sole purpose of calculating such costs (remarking that “[i]t is long past time for this litigation over $1,242.79 to end”).

Note:  The Fifth Circuit’s holding that the airline was liable for the loss of the cash and camera even though its contract of carriage purported to disclaim liability for these items is consistent with the “Guidance on Airline Baggage Liability and Responsibilities of Code-Share Partners Involving International Itineraries” that DOT issued on March 26, 2009.  The Guidance (which the Fifth Circuit did not cite) states as follows:  “Although carriers may wish to have tariff terms that prohibit passengers from including certain items in checked baggage, once a carrier accepts checked baggage, whatever is contained in the checked baggage is protected, subject to the terms of the [Montreal] Convention, up to the limit of 1000 SDRs (Convention, Article 22, para. 2).”  See 74 F.R. 14837-38 (Apr. 1, 2009).  In a ruling issued on November 18, 2010, the Canadian Transportation Agency reached the same conclusion, striking down an airline’s tariff rule, as well as a proposed revised version of such rule, that purported to preclude the airline’s liability for fragile and valuable items in baggage checked in connection with carriage subject to the Montreal Convention.  See Lukács v. WestJet (Decision No. 477-C-A-2010).  On February 1, 2011, the Federal Court of Appeal denied WestJet’s application for leave to appeal the agency’s decision.

Note:  On June 30, 2009, ICAO adjusted the liability limits set forth in Articles 21 and 22 of the Montreal Convention due to inflation.  Accordingly, effective December 30, 2009, the liability limit set forth in Article 22(2) was increased from 1,000 SDRs to 1,131 SDRs.  See U.S. Department of Transportation, Inflation Adjustments to Liability Limits Governed by the Montreal Convention Effective December 30, 2009, 74 F.R. 59017-18 (Nov. 16, 2009).

Court denies passenger recovery against airline for loss of itinerant robot head

June 30, 2008

Hanson v. America West Airlines, Inc. (C.D. Cal. Mar. 29, 2008).  Sometimes the truth is stranger than fiction or even science fiction.  The passenger in this case, a roboticist, sued the airline for the loss of “an artistically and scientifically valuable robotic head modeled after famous science fiction author Philip K. Dick.”  According to the court, “Dick’s well-known body of work has resulted in movies – such as Total Recall, Blade Runner, Minority Report, and A Scanner Darkly, and a large group of admirers has grown following his death in Orange County, California, in 1982.”

The passenger was traveling from Texas to San Francisco with a connection in Las Vegas.  He lost his head by leaving it in an overhead compartment when he departed the aircraft in Las Vegas to catch his flight to San Francisco.  According to the passenger, the airline found the head and promised to deliver it to him San Francisco, but the head never showed up.  The passenger claimed that he and his head have never come face to face again.  As damages, the passenger sought the value of the head, which he put at $750,000.

The airline moved for summary judgment on the grounds that its contract of carriage, which provided that the airline “assumes no responsibility or liability for baggage, or other items, carried in the passenger compartment of the aircraft,” barred any recovery by the passenger.  The court agreed with the airline, rejecting the passenger’s arguments that (i) the airline materially deviated from the original contract of carriage, and (ii) the airline employee who promised the passenger that the head would be delivered to him in San Francisco had altered the original contract of carriage, causing the airline to become liable for the loss of the head.  The court also held that even if the airline employee had had the authority to alter the contract of carriage, the passenger had presented no evidence that the airline had breached the altered contract, pointing out that the airline “may have done everything as promised, only to fall victim to a head hunting thief or other skullduggery.”

Obviously having fun, and clearly unable to restrain himself, the judge concluded the opinion as follows:  “The Court must GRANT Defendant’s Motion.  But it does so hoping that the android head of Mr. Dick is someday found, perhaps in an Elysian field of Orange County, Dick’s homeland, choosing to dream of electric sheep.”