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.

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.

Federal court slices, dices and dismisses ticket-related complaint on subject matter jurisdiction grounds

August 1, 2010

Onyiuke v. Cheap Tickets, Inc. & Virgin Atlantic Airways Limited (D.N.J. Dec. 31, 2009).  In August 2008, the plaintiff purchased a ticket, through, for roundtrip travel from Newark Liberty International Airport to Lagos, Nigeria, connecting in Gatwick Airport.  The first segment was to be on a Continental flight in mid-December 2009, and the connecting flight was on Virgin Nigeria Airways.  The ticket cost $1,563.

In early December, CheapTickets notified the plaintiff that Continental had discontinued service between Newark and Gatwick and offered him the choice of a modified flight arrangement or a full refund.  The plaintiff refused to accept either alternative.  Instead, he purchased a replacement ticket through a different online travel agency for $3,163 and, acting pro se, filed a lawsuit in federal court.

In his 85-paragraph, 25-page amended complaint, the plaintiff asserted diversity jurisdiction under 28 U.S.C. § 1332 and set forth causes of action for breach of contract and conversion against each defendant.  He demanded damages of approximately $127,000 from each defendant, including “mental agony” damages of $25,000 in connection with his contract claims and punitive damages of $80,000 in connection with his conversion claims.

Each defendant moved to dismiss pursuant to Rule 12(b)(1) on the grounds that the court lacked subject matter jurisdiction because the amount in controversy did not exceed $75,000 and, in fact, was limited to the refund value of the plaintiff’s ticket.  In addition, Virgin Atlantic moved to dismiss under Rule 12(b)(6) on the separate grounds that, except for the refund value of his ticket, the plaintiff’s claims were preempted by the Airline Deregulation Act, 49 U.S.C. § 41713(b)(1), because they were based on state law and “related to a price, route, or service” of an airline.

The court agreed that it lacked subject matter jurisdiction.  First, the court struck the plaintiff’s $80,000 punitive damages demands, which the plaintiff had requested in connection with his conversion claims, from the amount in controversy.  The court ruled that the plaintiff had failed to allege any facts indicating that either defendant had acted with “actual malice,” which a plaintiff must prove to recover punitive damages for a conversion claim under New Jersey law.  The court also pointed out that any “actual malice” assertion was undercut by the fact that it was Continental, and not either defendant, which had discontinued the Newark to Gatwick service, and by both parties’ offers to refund the ticket price to the plaintiff.

Next, the court struck the plaintiff’s $25,000 “mental agony” damages demands, which the plaintiff had requested in connection his contract claims, from the amount in controversy.  The court ruled that the plaintiff’s alleged “mental anguish arising from the loss of a bargain,” embarrassment from having to borrow money from friends and relatives and stress and inconvenience did not amount to the “severe emotional distress” required under New Jersey law to establish a claim for emotional distress arising from a contract breach.

After striking the plaintiff’s demands for punitive and mental agony damages, the plaintiff’s claims were below the jurisdictional minimum, so the court dismissed the amended complaint for lack of subject matter jurisdiction.  Because the court dismissed the amended complaint on this basis, it did not reach Virgin Atlantic’s alternative preemption argument.

Update:  On August 23, 2010, the court denied the plaintiff’s motion for reconsideration.  On September 17, 2010, the plaintiff filed a notice of appeal.

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.

First Circuit ruling confirms that “nonrefundable” tickets are totally nonrefundable

February 10, 2007

Buck v. American Airlines, Inc. (1st Cir. Mass. Feb. 7, 2007).  Some airline customers find it difficult to accept that their “nonrefundable” tickets are truly nonrefundable.  Some have filed lawsuits against airlines, but the courts routinely dismiss these claims as preempted by the federal Airline Deregulation Act (“ADA”), which prohibits the enactment or enforcement of any state “law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.”  See, e.g., Howell v. Alaska Airlines, Inc., 994 P.2d 901 (Wash. App. 2000).  A group of airline customers thought they had come up a clever way to avoid ADA preemption.  They were mistaken.

The plaintiffs in Buck were purchasers of nonrefundable tickets that they were unable to use.  They conceded that they were not entitled to a refund of their base fares but claimed that the 13 airlines they named as defendants had acted unlawfully by not refunding the various fees and taxes that had been collected as part of the ticket prices.  As their causes of action, the plaintiffs alleged an implied private right of action under two federal regulations governing the disclosure of certain terms in airline contracts of carriage, as well as numerous state law claims.

Like the district court, the First Circuit did not buy what the plaintiffs were selling.  The court held that only a statute, not a regulation, can serve as the source of a private right of action and that the ADA, the statute underlying the regulations on which the plaintiffs were relying, does not “permit the imputation of a private right of action against an airline.”

The court also held that the plaintiffs’ state law claims were preempted by the ADA.  The plaintiffs argued that they were making state claims in an attempt to right federal wrongs, since federal rules govern the airlines’ collection of the fees and taxes at issue.  The court rejected this inventive argument, correctly concluding that the plaintiffs’ state claims were attempts to further a state policy that those who are wronged should have “access to the courts in order to remediate that wrong.”

Note:  Just about every paragraph of this opinion features at least one vocabulary-expanding word or phrase; here are my favorites:  pleochroic (a new word for me), raiment, multitudinous, tamisage (new word #2), periphrastic (new word #3), circumlocutions, cornucopia, asseverate (new word #4), dichotomy, contextualized, supererogatory (new word #5), aperture, cabining, vagarious, ipse dixit, irreducible, elucidated.