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.


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.


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.


Montreal Convention applies, and time-bars, passenger’s claims despite injury’s occurrence during domestic flight

October 11, 2015

Cattaneo v. American Airlines, Inc. (N.D. Cal. Sept. 24, 2015).  The passenger/plaintiff traveled roundtrip on American’s flights between LAX and Cozumel, Mexico, via DFW, in June 2011.  In her complaint filed in November 2014, the plaintiff alleged that, during the DFW-LAX flight, a flight attendant gave her “an unlidded cup of hot water,” which spilled on her lap when the aircraft encountered turbulence, causing injuries.

American moved to dismiss on the ground that the plaintiff’s claims were time-barred by Article 35(1) of the Montreal Convention, which extinguishes the right to damages if an action is not commenced within two years “from the date of arrival at the destination.”  American noted that the Convention applied even though the alleged injury occurred during the domestic DFW-LAX flight because, under Article 1(2), “international carriage” triggering the application of the Convention exists “where or not there be a break in the carriage.”

The plaintiff responded by arguing that the Convention did not apply because the DFW-LAX flight was “completely domestic.”  The court agreed with American, finding that the plaintiff’s itinerary, which included same-day travel from Cozumel to LAX, objectively demonstrated that the DFW-LAX flight was “part of her longer international trip.”  Accordingly, the court granted American’s motion to dismiss.


Court shows the door to passenger’s exit row seating claims

April 3, 2015

Naqvi v. Turkish Airlines, Inc. (D.D.C. Feb. 23, 2015).  While checking in for his Turkish Airlines flight from Washington Dulles International Airport to Istanbul, Turkey, the passenger/plaintiff requested an exit row seat.  According to the plaintiff, airline personnel denied his request but promised him a “leg space seat.”  The plaintiff alleged that, upon boarding the aircraft, he discovered that the exit row seats were occupied by passengers who did not meet the minimum height requirement for such seats and that his assigned seat was not a “leg space seat.”  The plaintiff also alleged that the airline violated several safety requirements, including by not illuminating the seat belt signs before landing.  The plaintiff asserted that the airline’s conduct caused him to suffer “extreme emotional and physical distress.”

In his pro se complaint, the plaintiff advanced causes of action for breach of contract and for discrimination under what the court described as a “kaleidoscope of federal statutes.”  The plaintiff demanded compensatory damages of $250,000 and punitive damages of $150,000.  After removing the case to federal court, Turkish Airlines moved to dismiss the complaint on the grounds that the Montreal Convention preempted its claims and that it failed to state an actionable breach of contract or discrimination claim.

The court granted the motion.  First, the court ruled that the Montreal Convention governed the plaintiff’s claims because they arose from “international carriage” within the meaning of the Convention.  The court then ruled that the Convention preempted the plaintiff’s contract and discrimination causes of action.  According to the court, the result of the preemption was that, unless the plaintiff could “shoehorn his allegations into an actionable claim” under Article 17 of the Convention, which governs compensation “for the type of personal injury alleged” in the case, he could not state any claim whatsoever against the airline.

Article 17(1) of the Montreal Convention provides 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.”  The court ruled that the plaintiff had failed to plead that his injuries had been caused by an “accident,” as is required to state a claim under Article 17.  Citing cases, the court ruled that, because “disputes over airline seat assignments are neither unexpected nor unusual,” the dispute alleged by the plaintiff did not qualify as an “accident” within the meaning of Article 17.

The court also ruled that the plaintiff’s Article 17 claim failed, even assuming the occurrence of an “accident,” because the plaintiff had failed to “allege that an actionable ‘bodily injury’ resulted from defendant’s purported transgressions.”  The plaintiff had asserted that he had suffered “extreme emotional and physical distress,” but, in accordance with the governing caselaw, the court ruled that physical manifestations of mental injuries did not satisfy the Article 17 “bodily injury” requirement.

Note:  The plaintiff has another pro se case against an airline, Naqvi v. Saudi Arabian Airlines, pending in the same court.

Update:  On February 12, 2016, the court in Naqvi v. Saudi Arabian Airlines granted the airline’s motion for summary judgment.

 


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.