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.

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.


Ejected passenger’s claims fall, and fail, under Montreal Convention

December 12, 2011

Rogers v. Continental Airlines (D. N.J. Sept. 21, 2011).  The passenger and her daughter boarded the aircraft for a flight from Newark, New Jersey, to Cancun, Mexico, and stood in the forward galley while flight attendants tried to sort out their seat assignments.  While waiting, the passenger answered a call on her mobile phone.  When a flight attendant told her to end the call, she replied that “the pilot didn’t announce not to be on your phone and I’m talking to my Mom” and continued her conversation.  Unimpressed by the passenger’s asserted “mom call” exception to 14 C.F.R. § 91.21, Continental personnel requested that the passenger deplane.  After some resistance by the passenger, and after an airline employee allegedly threw some of her carry-on items from the aircraft onto the jetway, she deplaned.

Continental rebooked the passenger and her daughter on a later flight, and they arrived in Cancun “several hours later than originally scheduled.”

The passenger filed a lawsuit against Continental in state court, alleging claims for intentional infliction of emotional distress, negligent infliction of emotional distress and breach of contract.  The airline removed the case to federal court.

After discovery, the airline moved for summary judgment on the grounds that the Montreal Convention exclusively governed the passenger’s claims and that she had failed to state a viable claim under the Convention.  Under Article 17(1) of the Convention, “[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.”

In opposition to the motion, the passenger resisted the application of the Convention, arguing that her injuries had occurred in the terminal after she had deplaned.  The court disagreed, finding that the passenger had admitted, in her complaint and during her deposition, that her injuries had occurred on board the aircraft and while disembarking in the jetway.  Thus, the court concluded, the Convention applied.

The court then analyzed whether the passenger had alleged facts sufficient to support a viable “bodily injury” claim under Article 17(1).  The court found that, although the passenger had complained of “physical manifestations of emotional and mental anguish” in her complaint, she had admitted during her deposition that she had, in fact, not sustained any physical injury as a result of the incident at issue.  Accordingly, the court held that her tort and contract claims failed as a matter of law and granted the airline’s motion.

Race discrimination claim preempted by Warsaw Convention

March 8, 2011

Sewer v. LIAT (1974) Ltd. (D. Virgin Islands Feb. 16, 2011).  The plaintiff had purchased a ticket for a LIAT flight from the British Virgin Islands to Antigua.  The flight was overbooked, so airline personnel informed the plaintiff that he would have to take a later flight.  Undeterred, the plaintiff (and the other waiting would-be passengers) pushed past the airline’s gate personnel and boarded the aircraft.  Airline personnel asked the plaintiff to leave the aircraft because he did not have a seat, and he did so.  An off-duty police officer arrested and handcuffed the plaintiff, who was briefly detained in an airport holding cell and released without being charged with any crime.

The plaintiff filed suit against the airline, asserting claims of race discrimination, defamation and intentional or negligent infliction of emotional distress, although the plaintiff only pursued the discrimination claim.  The court described the plaintiff as “a black West Indian with dreadlocks in his hair who believes in the underlying tenets of Rastafarianism.”

LIAT moved for summary judgment, and the court granted the motion.  The court agreed with the airline that the plaintiff’s discrimination claim was preempted by the Warsaw Convention, citing King v. American Airlines (written by now-Justice Sotomayor) and several other cases.  The court also held that the plaintiff had no claim under the Warsaw Convention because bumping is a well-established airline industry practice and, thus, is not an “unexpected or unusual event” constituting an “accident” under Article 17.  Finally, the court held that, even if the bumping had constituted an “accident,” the plaintiff’s claim still failed because his injuries, bruised and swollen wrists, were caused by the off-duty police officer in the airport, not by airline personnel on the aircraft.

Note:  Plaintiff filed the case in 2002, and LIAT filed its summary judgment motion in 2009.  Cases seem to move at a leisurely pace in the Virgin Islands, in both federal and state courts.

Airline obtains summary judgment in case involving passenger assault and false arrest claims

November 30, 2010

Ginsberg v. American Airlines (S.D.N.Y. Sept. 27, 2010).  The plaintiff was a passenger on an American flight from New York (JFK) to Turks and Caicos.  After visiting the restroom during the flight, the plaintiff moved a food cart out of his way so he could return to his seat.  However, a flight attendant had instructed him to wait for her to move the cart.  The plaintiff and the flight attendant had a confrontation about the cart that involved some physical contact but no injury to the plaintiff.

Upon arrival in Turks and Caicos, the local police boarded the aircraft and asked the plaintiff to accompany them.  The police questioned the plaintiff at their headquarters and then drove him to his hotel.  American refused to transport the plaintiff on the return flight, so he purchased a substitute ticket on a US Airways flight.

The plaintiff sued American in state court, alleging causes of action for assault and battery, false arrest, conspiracy, intentional infliction of emotional distress (related to the return flight) and breach of contract (also related to the return flight).  The plaintiff sought actual damages of over $325,000 and punitive damages of $1 million.  American removed the case to federal court and moved for summary judgment, contending that all of the plaintiff’s tort claims were preempted by the Montreal Convention and offering to refund him the value of the return portion of his ticket in satisfaction of his breach of contract claim.

The court held that the plaintiff’s claims for assault and battery, false arrest and intentional infliction of emotional distress, to the extent they were based on the in-flight events, were preempted by the Montreal Convention.  The court also held that, for the in-flight events, the plaintiff had no claim under Article 17(1) of the Convention, which provides that an airline “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 reasoned that the plaintiff had no claim under Article 17(1) because no “accident” had occurred, as the plaintiff himself was the proximate cause of his confrontation with the flight attendant, and because the plaintiff had not suffered any “bodily injury” as a result of such confrontation.

The court then held that the plaintiff’s false arrest claim, to the extent it was based on the alleged conduct by American personnel at the police headquarters, was not preempted by the Montreal Convention but that it failed nonetheless because the plaintiff had not proffered any evidence of false statements made by such personnel to the police.

Next, the court held that the plaintiff’s intentional infliction of emotional distress claim failed.  The court concluded that this claim, which was based on American’s refusal to transport the plaintiff on the return flight, was deficient because the plaintiff had failed to proffer evidence that American had engaged in “the requisite outrageous and extreme conduct” or that he had suffered “the requisite severe emotional distress.”

Finally, the court held that the plaintiff’s breach of contract claim was not preempted by the Montreal Convention, but it noted that American had offered to refund the value of the return portion of the plaintiff’s ticket.  The court indicated that American would also be liable to the plaintiff for the “additional cost factor” associated with the substitute US Airways ticket.

Update:  On October 25, 2010, the plaintiff appealed the court’s decision to the Second Circuit.

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 analyzes definition of “international carriage” under Montreal Convention

February 28, 2009

Jones v. USA 3000 Airlines (E.D. Mo. Feb. 9, 2009).  During a flight from St. Louis to Jamaica, a flight attendant allegedly pushed a service cart into the passenger’s knee, causing damage to the passenger’s “entire nervous system which had been severely shocked and deranged.”  The passenger filed a lawsuit against the airline in state court.

The airline removed the case to federal court on the grounds that the parties’ rights related to the incident were governed by the Montreal Convention, which completely preempted the passenger’s state law cause of action.  The passenger moved to remand the case, arguing that because Jamaica is not a signatory to the Convention, the flight at issue was not “international carriage” as defined by the Convention.  The passenger’s ticket was for round-trip transportation between St. Louis and Jamaica.

The Convention “applies to all international carriage of persons, baggage or cargo performed by aircraft for reward.”  Article 1(1).  Article 1(2) defines “international carriage” as follows:  “For the purposes of this Convention, the expression international carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party” (emphasis in original).

The court denied the passenger’s motion.  Citing numerous cases, the court concluded that, for round-trip international travel, “the place of destination” is the same as “the place of departure” and that it was irrelevant that the passenger’s outbound flight was to Jamaica, which is not a party to the Convention.  Thus, the court held that the Convention applied because the passenger’s “place of destination” was St. Louis, not Jamaica, and because the United States is a party to the Convention.  The court also held that the Convention completely preempted the passenger’s state law cause of action.

Note:  Where, as in the passenger’s memorandum in support of her remand motion, your only supporting precedent is a dissenting opinion in a 1977 case, you know your argument is a long shot.  Where the judge who wrote that dissenting opinion relied solely on Homer’s “The Odyssey” as support for his position, you really know your argument is a long shot.  It is not often that one sees a quote like this in an opinion:  “Even Ulysses, that most widely travelled of ancient heroes, was also most intent upon returning home.  Doubtless when he embarked from his home in Ithaca he always intended to return there once he had attended to his business in Troy.  But the fact that one intends to return home does not mean that that is where one is going when one sets out on a voyage.”

Update:  USA 3000 Airlines subsequently moved for summary judgment on the grounds that the passenger’s claims were time-barred under Article 35(1) of the Montreal Convention, which provides as follows:  “The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.”  Because the passenger had arrived at her destination in August 2005 but did not file the lawsuit until October 2008, the court granted the airline’s motion.