Court grants summary judgment against “undeserving litigant” in personal injury lawsuit

Agravante v. Japan Airlines International Co., Ltd. (D. Guam July 9, 2007).  The passenger claimed in his lawsuit against JAL that he suffered back injuries as a result of a “standing takeoff” in 2002.  In a standing takeoff, the flight crew taxis the aircraft to the runway, sets the brakes, sets the engines to a predetermined power setting and then releases the brakes.  The aircraft’s computer controls the takeoff roll and acceleration.  A standing takeoff imparts more force on passengers than a manually-controlled takeoff does but is considered routine in the aviation industry.

The airline moved for summary judgment on the grounds that the passenger’s supposed injuries were not caused by an “accident” within the meaning of Article 17 of the Warsaw Convention and that even if an accident did occur, there is no causal link between such accident and the passenger’s injuries.  Article 17 provides that “[t]he carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

The court granted the airline’s motion.  The court generously gave the passenger the benefit of the doubt that the standing takeoff was an “accident” within the meaning of Article 17 but held that the passenger’s allegation that the takeoff was the proximate cause of his injuries “cannot withstand even cursory scrutiny.”  The court noted that the passenger’s “own medical evidence” showed that his back problems were the result of a degenerative disease, not the takeoff, that the passenger had not mentioned any injuries in the incident report he submitted to the airline immediately after the flight and that he did not seek medical treatment until two years after the flight.

In closing its opinion, the court stated:  “The Warsaw Convention imposes a form of absolute liability on international air carriers for accidents which cause passenger injuries.  Since liability under the Convention is nearly absolute, courts should be wary of reckless invocation of the Convention by eager but undeserving litigants.  Here is such an instance of an undeserving litigant.”

Injured passenger embraces Warsaw Convention then tries, without success, to avoid it

Sanchez-Morrabal v. Omni Air Services, Co. (D. Puerto Rico July 6, 2007).  Way back in 2001, the passenger fell off a ramp and injured his leg while boarding an aircraft in Honduras for a flight to Puerto Rico.  In his 2006 lawsuit against the airline, one of the passenger’s causes of action was for relief under the Warsaw Convention.  The airline moved to dismiss on the grounds that the passenger’s lawsuit was barred by Article 29(1) of the Warsaw Convention, which provides that “[t]he right to damages shall be extinguished if an action is not brought within 2 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 transportation stopped.”

Backpedaling furiously, the passenger moved for leave to amend his complaint to drop the Warsaw Convention cause of action.  The court granted the passenger’s motion but the amendment just rearranged a deck chair on the Titanic.  The court held that the Convention applied because both Honduras and the U.S. are signatories to the Convention and because, pursuant to Article 17, the passenger was “in the course of any of the operations of embarking” when the accident occurred.  The passenger argued that the Convention did not apply because he was not provided with a ticket, as required by Article 3, but the court correctly ruled that an airline’s failure to comply with the ticket requirement “does not affect the Convention’s applicability, only the airline’s ability to avail itself of the limits imposed on its potential liability.”  The court dismissed the lawsuit as time-barred pursuant to Article 29.

Note:  Because the two-year limit of Article 29 of the Warsaw Convention is a condition precedent to suit, not a statute of limitation, it is not subject to tolling.  The same is true with the two-year limit of Article 35 of the Montreal Convention, the successor to the Warsaw Convention.

Ninth Circuit upholds sentencing enhancement for unruly passenger

U.S. v. Gonzalez (9th Cir. (Nev.) July 3, 2007).  Just after takeoff, a passenger stood up, complained of heart problems and requested oxygen.  He then became increasingly agitated and started demanding to the flight attendants that the pilots land the aircraft.  The passenger then stated that he had a bomb and started opening overhead bins.  The flight attendants and other passengers to tried to restrain the unruly passenger, who fought back.  At that point, in the words of one witness, “all hell broke loose.”  Eventually, the passenger was restrained with plastic handcuffs and the aircraft was diverted back to the airport from which it had taken off, where the FBI arrested the passenger.

The unruly passenger pled guilty to interference with a flight crew member in violation of 49 U.S.C. § 46504.  He appealed the federal district court’s decision to impose a nine-level sentencing enhancement for “recklessly endangering the safety of the aircraft and passengers” under U.S. Sentencing Guideline § 2A5.2, which is entitled “Interference with Flight Crew Member or Flight Attendant.”  The enhancement resulted in a 27-month sentence.

On appeal, the passenger argued that the enhancement did not apply because he had interfered with the flight crew and endangered the other passengers but had not endangered the aircraft itself.  The passenger contended that he had not endangered the aircraft because he neither caused it actual harm nor did he actually have a bomb with him on the aircraft.

The passenger’s arguments were too far-fetched for even the liberal Ninth Circuit.  The court sensibly reasoned that because “an aircraft is a captive, closed environment in which the safety of the passengers and the integrity of the aircraft are closely intertwined,” the passenger’s chaos-causing statements and other conduct not only interfered with the flight crew and endangered the other passengers but also endangered the aircraft itself.