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.

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.

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 prevails on summary judgment by proving it took all reasonable measures to avoid delaying passengers

December 2, 2010

Cohen v. Delta Air Lines, Inc. (S.D.N.Y. Nov. 8, 2010).  The plaintiffs had tickets for travel from New York (JFK) to Buenos Aires, Argentina, connecting in Atlanta.  Due to an air traffic control mandate, the flight to Atlanta was delayed, and, as a result, the plaintiffs missed the flight to Buenos Aires.  Delta booked the plaintiffs on a flight to Buenos Aires the next day and provided them with hotel accommodations, meal vouchers and transportation to and from the hotel.

The plaintiffs sued Delta in state court, alleging that the airline had engaged in multiple acts of “willful misconduct” by failing to provide a gate crew in Atlanta quickly enough, failing to hold the Buenos Aires flight for them and failing to rebook them on a later flight to Santiago, Chile.  The plaintiffs demanded damages of $10,000 as compensation for one lost vacation day in Buenos Aires, the “great discomfort” they suffered due to the “low 30’s” temperature in Atlanta and “the great stress and anguish” they suffered from “being told to run for [the Buenos Aires] flight that the Delta representative knew or should have known was a wasted effort.”

Delta removed the case to federal court, and, after discovery, moved for summary judgment, relying primarily on Article 19 of the Montreal Convention.  Article 19 imposes liability (limited by Article 22(1)) on an airline for delay in the carriage of passengers, but it also provides 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 court granted Delta’s motion, holding that no reasonable juror could conclude, based on the evidence in the record, that Delta “willfully caused” the delay at issue or that the airline “did not take all measures that could reasonably be necessary to avoid the delay.”  The court reasoned that no reasonable juror could conclude that it was possible for Delta to disobey the ATC mandate, to dispatch a gate crew in Atlanta to handle the plaintiffs’ flight before all the flights that had landed earlier, to delay the departure of the flight to Buenos Aires or to rebook the plaintiffs on the Santiago flight, given the insufficient time available to do so.

Note:  For carriage subject to the Montreal Convention, if an airline cannot prove that it took all reasonable measures to avoid the damage caused by the delay or that it was impossible to take such measures, then the passenger can – without having to prove that the airline engaged in “willful misconduct” – recover under Article 19, subject to the liability limit of 4,694 Special Drawing Rights (currently about US$7,200) set forth in Article 22(1).  However, pursuant to Article 22(5), if the passenger can prove that the delay damage resulted from airline conduct “done with intent to cause damage or recklessly and with knowledge that damage would probably result,” the liability limit does not apply.  The term “willful misconduct” does not appear in the Montreal Convention; it does appear (as “wilful misconduct”) in the Warsaw Convention.

Plaintiff avoids preemptive effect of Montreal Convention by court’s holding that claims are for non-performance, not delay

July 29, 2009

Mullaney v. Delta Air Lines, Inc. (S.D.N.Y. June 3, 2009).  According to the plaintiff, Delta canceled his return flight from Paris to New York due to a strike by employees of Air France (Delta’s codeshare partner) and breached its written promise to reimburse customers who booked substitute flights on other airlines.  In his class action complaint, the plaintiff sought the refund of his unused Paris-New York ticket, the expenses he incurred during the extra days he spent in Paris waiting for a flight to New York, attorneys’ fees and punitive damages.  The complaint set forth causes of action for violation of New York’s consumer protection statute, promissory estoppel and unjust enrichment.

Delta moved to dismiss on the grounds that the Montreal Convention preempts the complaint’s state law causes of action.  The airline characterized the plaintiff’s claims as delay claims, and argued that, as such, they are preempted because Article 19 of the Convention provides that an airline is liable for “damage occasioned by delay in the carriage by air of passengers, baggage or cargo.”

The court sided with the plaintiff, holding that his claims are not preempted because they are not for delay but for non-performance of the airline’s carriage obligation.  The court reasoned that the claims are for non-performance because the plaintiff had tried, without success, to obtain alternative transportation on another Delta flight and that, despite his efforts, the airline was unable to transport him.

In the typical case in which a court holds that a plaintiff’s claims are for delay rather than non-performance, the plaintiff impatiently obtained alternative transportation on a different airline’s flight without waiting to find out whether the defendant airline would be able to transport him.  Here, according to the court, the plaintiff waited three days beyond his scheduled departure date, during which time Delta was unable to transport him, before he departed on a different airline’s flight.  The court noted that, even on the day the plaintiff departed, Delta could not have transported him due to the ongoing strike.

Update:  On July 29, 2009, the court denied the plaintiff’s motion for class certification.  The court held that, because individualized proof would be required to establish the airline’s liability for fraud, the plaintiff, who the court described as “a lawyer who obviously does not have enough client work to keep him busy,” had failed to meet the requirement that the proposed class members’ common questions be susceptible to generalized rather than individualized proof.  In support of its ruling, the court also noted that the plaintiff’s claims might differ from those of the other members of the proposed class because the plaintiff is subject to the “particular defense” that he failed to comply with Delta’s procedure for obtaining a refund.  That procedure, which is set forth in Delta’s Conditions of Carriage, required that the plaintiff turn in the unused portion of his ticket before its expiration, i.e., within one year from the date of travel from the point of origin.

Court’s narrow view of Montreal Convention preemption results in remand to state court

January 31, 2009

Narkiewicz-Laine v. Scandinavian Airlines Systems (N.D. Ill. Sept. 12, 2008).  In his state court complaint, the passenger claimed that (i) the airline’s delay of a certain international flight in March 2008 caused him to miss his connecting flight, and (ii) the airline refused to refund his ticket for an international flight scheduled for June 2006, even though he had called on the day of departure to advise the airline that he was sick and thus unable to travel that day.

The airline removed the case to federal court, contending that the Montreal Convention provided, in Article 19, the exclusive cause of action for the passenger’s delay claim, thus preempting his state law breach of contract claim for delay and giving the court original jurisdiction over such claim, and that the court had supplemental jurisdiction over the passenger’s state law breach of contract refund claim.  The plaintiff moved to remand the case to state court.

The court sided with the passenger.  Citing a recent Seventh Circuit case, the court held that because the Montreal Convention’s conditions and limits, including Article 19, only operate as affirmative defenses to a passenger’s claims, such provisions do not provide a basis for federal question subject matter jurisdiction.  Accordingly, the court remanded the case to state court.

Note:  In making its ruling, the court acknowledged that in Knowlton v. American Airlines, Inc., which is discussed here, the Maryland federal district court took a much broader view of Montreal Convention preemption.

Court rules on summary judgment motions in charter flights class action

April 28, 2008

In re Nigeria Charter Flights Contract Litigation (E.D.N.Y. Oct. 25, 2007).  In 2002, World Airways, Inc. and Ritetime Aviation and Travel Services, Inc. entered into a charter aircraft services agreement under which World agreed to supply Ritetime with round-trip flights between points in the U.S. and Lagos, Nigeria.  The charter flights began but, by the end of 2003, Ritetime owed World over $2 million, leading World to discontinue its U.S.-Nigeria operations.  World’s action stranded hundreds of passengers who had traveled on outbound flights and left others who had bought tickets for 2004 unable to travel at all.

After the passengers sued World, Ritetime and its CEO in courts throughout the U.S., the federal cases were consolidated in the Eastern District of New York, which certified a class of plaintiffs in 2006.  The plaintiffs alleged that World is liable under the Montreal Convention for its failure to transport them, and they also alleged state law claims for breach of contract, negligence and fraud.

World moved for summary judgment, contending that (i) the Montreal Convention preempts the plaintiffs’ state law claims, (ii) even if the plaintiffs’ state law contract claims are not preempted, they should be dismissed because there is no privity of contract between World and the plaintiffs, and (iii) even if the Convention does not preempt the plaintiffs’ negligence and fraud claims, the federal Airline Deregulation Act preempts those claims.  The plaintiffs filed a cross-motion for summary judgment.

The court granted World’s motion as to the plaintiffs’ delay claims under the Convention but denied it as to their breach of contract and tort claims.  The court also denied the plaintiffs’ cross-motion.  The court’s specific rulings are as follows.

Montreal Convention preemption.  Delay in international air transportation is governed by Article 19 of the Convention, and whenever the Convention applies, it preempts all state law claims for matters that fall within the scope of its application.  Article 22(1) limits an airline’s liability for a passenger’s delay claim to 4,150 Special Drawing Rights, or about $6,750.  The Convention does not govern nonperformance of a contract of carriage.  The court held that the Convention did not preempt the plaintiffs’ state law claims, ruling that their claims were for nonperformance, not for delay.  The court reasoned that World had “simply refused to transport” the plaintiffs, without offering them alternate transportation, “rather than merely delaying them.”  Of course, this ruling meant that the plaintiffs could not maintain their delay claims under the Convention, and the court granted World’s motion with respect to such claims.

Privity/agency.  The court held that while the tickets themselves did not establish contracts between the plaintiffs and World, factual issues prevented it from granting summary judgment to either side on the issue of World’s liability for Ritetime’s conduct.  The court ruled that the evidence presented was insufficient for it to decide whether the plaintiffs had bought their tickets directly from World; the plaintiffs presented evidence that they had done so, while World presented contradictory evidence.  Similarly, the court held that the existence of disputed facts prevented it from determining whether, as the plaintiffs alleged, Ritetime was World’s agent under theories of actual or apparent authority or that World had ratified Ritetime’s ticket sales.

ADA preemption.  The court rejected World’s contention that the federal Airline Deregulation Act preempted the plaintiffs’ fraud and negligence claims.  The ADA preempts certain state tort (and other) claims “related to a price, route, or service” of an airline.  However, some New York federal courts will refuse to rule that a tort claim is preempted where an airline has engaged in “outrageous” conduct that went “beyond the scope of normal aircraft operations.”  The court held that the ADA did not preempt the tort claims in this case because World’s refusal to transport the plaintiffs constituted “outrageous” conduct.