Airline not liable for refusing to transport customer who lacked required travel documents

March 28, 2011

Reed v. Delta Airlines, Inc. (S.D.N.Y. Mar. 23, 2011).  The plaintiff and her dog, Blondie, arrived at John F. Kennedy International Airport to check in for their flight to Ghana.  Delta personnel informed the plaintiff that she lacked certain documents that Ghana required for Blondie to enter the country.  The plaintiff put Blondie in a cab to her son’s home and reentered the terminal, only to later discover that Blondie had departed with the plaintiff’s passport.  In accordance with Delta’s conditions of carriage, the airline’s personnel refused to transport the plaintiff due to her failure to present a passport, and they rebooked her on a subsequent flight.

The plaintiff sued Delta, claiming that it was liable for refusing to transport her (and Blondie, the co-plaintiff) under breach of contract, implied contract and covenant of good faith and fair dealing causes of action, and under several tort causes of action as well.  The plaintiff requested damages totaling over $1.2 million.

Delta moved for summary judgment on the grounds that it had not breached the parties’ contract, that the plaintiff’s implied contract and good faith and fair dealing claims failed given the existence of an express contract between the parties and that the plaintiffs’ tort claims were preempted by 49 U.S.C. § 41713(b), the preemption provision of the Airline Deregulation Act.  The court agreed.

The court held that the plaintiff’s breach of contract claim failed because Delta had “acted within its rights” under its conditions of carriage, which specifically allowed the airline to refuse to transport the plaintiff for failing to present a passport and to refuse to transport Blondie because the plaintiff lacked certain documents required by Ghana.  The court agreed that the plaintiff’s implied contract and good faith and fair dealing claims failed because the parties had entered into an express contract.

The court then turned to the plaintiff’s various tort claims.  It held that not only were the plaintiff’s tort claims preempted by the ADA because they all “involve[d] Delta’s boarding practice which is an airline service,” but because also they lacked substantive merit, and it analyzed the deficiencies of each claim.

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.

Court rejects parent’s contention that airline has duty during boarding to ensure compliance with child custody orders

December 12, 2010

Braden v. All Nippon Airways Co., Ltd. (Cal. App. 2nd Dist. Oct. 13, 2010).  In a child custody case, the court had denied the mother’s request to move to Japan with her infant daughter and had ordered that she surrender her daughter’s passport.  Despite the order, the mother, using the passport, took the child with her on an ANA flight from Los Angeles to Japan.  Because Japan is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, the father had no legal recourse to compel his daughter’s return to the U.S.

The father sued ANA, alleging causes of action for negligence and interference with custodial relations.  He asserted that ANA had violated its duty to him to make the mother prove, as part of the boarding process, that she had his consent to take their daughter out of the country or that she had sole custody of the child.  The trial court sustained ANA’s demurrer to the amended complaint, and the father appealed.

The appeals court affirmed the trial court’s judgment.  First, however, the court rejected the trial court’s ruling that the father’s claims were preempted by 49 U.S.C. § 41713(b)(1), the preemption provision of the Airline Deregulation Act.  That provision states in part as follows:  “[A] State, political subdivision of a State, or political authority of at least 2 States 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 that may provide air transportation under this subpart.”

Following the Ninth Circuit and other California appellate courts, the appeals court adopted a narrow view of the term “service,” and, consistent with that view, held that a claim related to an airline’s boarding procedures is not preempted by the ADA.  The court reasoned that boarding procedures “are not services within the meaning of the ADA” because they have “no impact on prices, schedules, origins, or destinations” and do not represent “a legitimate interest needing protection under the ADA.”

The appeals court then upheld the trial court’s ruling that the father had failed to state a negligence claim.  The court held that ANA did not owe him a duty of care because there was “no authority for the proposition that a common carrier has a duty to ensure that a minor traveling with a custodial parent is not being transported in violation of a court order.”  For the same reason, the appeals court also held that the father’s intentional interference with custodial relations claim failed.

Note:  The First, Second, Fourth, Fifth, Seventh and Eleventh Circuits have held that an airline’s boarding procedures constitute a “service” within the meaning of the ADA, in contrast to the Ninth Circuit’s highly restrictive definition of the term (which the Third Circuit also decided to adopt).  According to Ninth Circuit Judge Diarmuid O’Scannlain, the Supreme Court reversed or vacated Ninth Circuit decisions in 148 of 182 cases during the last nine terms.  Thus, the Ninth Circuit “got it wrong in 81% of its cases that the Supreme Court agreed to hear,” which is a “strikingly poor record.”  According to Judge O’Scannlain, “even more telling than the reversal rate itself, however, is the number of unanimous reversals.  Seventy-two of the 148 Ninth Circuit cases reversed during the period in question were at the hands of a unanimous Supreme Court.”  Harvard Law School, When ‘The Nine’ Overrule the Ninth:  O’Scannlain ponders 10 years of reversals (Sept. 27, 2010).

Airline required to disclose passenger contact information, but not employee contact information, in refusal to transport case

December 28, 2008

Nathaniel v. American Airlines (D. Virgin Islands Nov. 20, 2008).  According to the passenger, airline personnel forced her off the aircraft before the domestic flight and refused to transport her because they had determined “she was too fat” and represented a safety “hazard.”  The passenger’s complaint, which set forth causes of action for breach of the duty of good faith and fair dealing, misrepresentation, negligence and negligent and intentional infliction of emotional distress, alleged that the conduct of the airline personnel caused her to suffer humiliation and medical injuries and that the airline was vicariously liable for such conduct.

During discovery, the passenger moved to compel the airline to disclose (i) the home addresses and telephone numbers of the employees who the airline had identified in its initial disclosures as having information about the events at issue, and (ii) the passenger manifest for the flight.  The magistrate judge denied the motion, and the passenger appealed to the district judge.

The district judge ruled that the airline was not obligated to disclose its employees’ home addresses and telephone numbers because Model Rule of Professional Conduct 4.2 prohibited the passenger’s attorneys from contacting such employees ex parte, as their conduct with respect to the passenger could be imputed to the airline for purposes of determining its liability.  As to the passenger manifest, the court ruled that, despite a federal regulation requiring that airlines keep passenger contact information confidential (14 C.F.R. § 243.9), the airline was required to produce such information subject to a protective confidentiality order.  The court reasoned that other passengers on the aircraft had apparently witnessed the incident at issue and that the passenger had no other means of obtaining their contact information, and the court took note of two other cases in which the courts had held passenger manifests to be discoverable subject to confidentiality orders.

Montreal Convention inapplicable where injured passenger unable to prove that airline regarded multi-airline carriage as “single operation”

February 27, 2008

Kruger v. United Air Lines, Inc. (N.D. Cal. Nov. 1, 2007).  While waiting on a jetway to board a flight from San Francisco to Seattle, the passenger was inadvertently struck on the head by a backpack swung by another boarding passenger.  The passenger was able to board but became “dazed and nauseated” during the flight due to the incident.

The passenger’s complaint against United alleged that the Montreal Convention governed her claims and also that the airline was liable under various state common law tort causes of action, including negligence, negligent training and supervision of employees and negligent infliction of emotional distress.

United moved to dismiss the complaint on the grounds that the passenger’s state common law claims were preempted by the Montreal Convention.  In its motion, United expressed doubt that the Montreal Convention governed the case, as the incident appeared to have occurred in connection with a domestic flight, but United correctly stated that the court had to accept the passenger’s allegation that the Convention governed as true for purposes of the motion.  As previously reported, the court held that the Convention preempted the passenger’s state common law tort causes of action but that she had stated sufficient facts to plead a cause of action under Article 17 of the Convention by alleging “bodily injury” (the in-flight nausea) that had been caused by an “accident” (the backpack incident) during the course of embarking.

United then moved for summary judgment, arguing that the Montreal Convention did not apply because the jetway incident had occurred in connection with a domestic flight, not an international flight.  Prior to the flight at issue, the passenger had traveled on a United flight from Los Angeles to San Francisco and, before that, on a Qantas flight from Australia to Los Angeles.  Since more than one airline was involved in the transportation, for the flight at issue to constitute “international carriage” governed by the Montreal Convention, it had to be part of “one undivided carriage” under Article 1(3).  Under Article 1(3), a series of flights is considered “one undivided carriage” only “if it has been regarded by the parties as a single operation.”

The court held that the passenger had failed to produce sufficient objective evidence that United had regarded her flights “as a single operation.”  In support of its conclusion, the court noted that the United and Qantas tickets “were not issued by the same travel agent or made as part of a package,” that “they were reserved and paid for separately,” that “the two airlines did not have code sharing agreements and were not partners in the same worldwide alliance,” that “there were no communications between the airlines to coordinate the flights,” and that “the facts of one airline’s itinerary or ticketing was not reflected on the other airline’s itinerary or ticket.”  Accordingly, the court granted United’s motion for summary judgment.

Note:  The court’s summary judgment ruling did not end the case.  The court allowed the passenger to refile her state common law tort causes of actions against United – the very ones that the court had earlier held were preempted by the Montreal Convention – and she did so.

Airline obtains reversal of passenger jury verdict in refusal to transport case

February 11, 2008

Cerqueira v. American Airlines, Inc. (1st Cir. (Mass.) Jan. 10, 2008).  As previously reported, in December 2003, American Airlines removed three passengers, a man of Portuguese national origin and two Israelis seated nearby, from an aircraft at the departure gate in Boston for questioning by state police officers.  After the questioning, the airline declined to rebook them on another flight to Ft. Lauderdale.

The passenger of Portuguese national origin filed a lawsuit against the airline.  He alleged that airline personnel removed him from the aircraft and then refused to provide him service solely because of his perceived national origin, in violation of Title VI of the Civil Rights Act and a Massachusetts antidiscrimination statute.  The airline alleged that the passengers had been removed for questioning and then refused service solely due to security concerns based on their alleged unusual behavior before and during the boarding process.

After a six-day trial, the jury returned a verdict in favor of the passenger, assessing compensatory damages of $130,000 and punitive damages of $270,000.  After the trial court denied American’s motions for a JNOV and a new trial, American appealed.

Only two months after the appeal was argued, the First Circuit issued an opinion reversing the trial court’s judgment and remanding the case to the district court with instructions to enter judgment for American.  The First Circuit’s opinion centered on 49 U.S.C. § 44902, entitled “Refusal to transport passengers and property,” which provides in section (b) as follows:  “Permissive Refusal. – Subject to regulations of the Under Secretary, an air carrier, intrastate air carrier, or foreign air carrier may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety.”

American had requested that the trial judge give a series of jury instructions regarding section 44902(b), including the well-established standard for liability that the jury must return a verdict for the airline unless its actions with respect to the passenger were “arbitrary or capricious.”  The judge refused to give the requested instructions.  The First Circuit held that the omitted instructions “were essential to the case” and the trial court had erred by refusing to give them.

The First Circuit also held that the instructions that were given were erroneous.  The most serious error was that the trial judge had instructed the jury that American had the burden of proving that its reasons for removing the passenger were legitimate.  The appeals court held that, in a section 44902(b) case, it is the passenger who has the burden of proof, and the passenger must prove that the airline’s conduct was arbitrary or capricious.

Update:  On February 29, 2008, the First Circuit denied the passenger’s petition for rehearing en banc.  Two judges dissented from the denial of the petition.  On October 6, 2008, the U.S. Supreme Court denied the passenger’s petition for a writ of certiorari.

Southwest persuades court to shut down boarding pass company’s operations

September 17, 2007

Southwest Airlines Co. v. BoardFirst, L.L.C. (N.D. Tex. Sept. 12, 2007).  BoardFirst went into business in 2005 to assist Southwest passengers in obtaining the coveted “A” group boarding passes.  “A” boarding passes are obtained by the first 45 passengers to check in, and “A” passengers are the first to board the aircraft.  A BoardFirst customer authorizes the company to act as the customer’s agent.  When the customer’s boarding pass becomes available, a BoardFirst employee uses the customer’s personal information to log onto and attempt to obtain an “A” boarding pass for the customer.  BoardFirst notifies its customer if it was successful; if so, BoardFirst collects a $5 fee from the customer, who prints the boarding pass via or at an airport kiosk.

Southwest sent BoardFirst cease and desist letters, but BoardFirst continued to operate.  So Southwest sued BoardFirst, alleging causes of action for breach of contract, violation of the federal Computer Fraud and Abuse Act and for violation of a Texas statute prohibiting harmful access to a computer.  Southwest sought damages as well as a permanent injunction against BoardFirst’s operations.  Southwest moved for partial summary judgment on its causes of action and on BoardFirst’s counterclaims for tortious interference with contractual relations.

The court granted Southwest’s motion as to its breach of contract cause of action, holding that BoardFirst had breached the parties’ “browsewrap” agreement.  A browsewrap agreement is entered into between a web site owner and a user of the site when the user accesses the site after having received actual or constructive knowledge that such access constitutes acceptance of the site’s terms and conditions.’s home page displayed a notice stating that use of the site constitutes acceptance of Southwest’s terms and conditions, one of which was that site use was only permitted for “personal, non-commercial purposes.”  The court held that BoardFirst had actual knowledge of the prohibition against commercial use of the site since at least the time it received Southwest’s first cease and desist letter.  BoardFirst argued that it did not breach the contract because its use of the site was authorized by its customers.  The court rejected this argument, holding that BoardFirst’s authorization to act for its customers “does not make its conduct any less of a violation of the Terms.”

The court then considered whether Southwest had suffered damages due to BoardFirst’s conduct.  Southwest argued that it had incurred damages because BoardFirst’s activities had decreased traffic on its site, thereby depriving Southwest of selling and advertising opportunities, and because BoardFirst’s activities had interfered with Southwest’s effort to build an “egalitarian” image by creating a “de facto first class” for its flights.

The court held that Southwest was entitled to damages but that its damages were impossible to quantify, thus making the remedy of a permanent injunction “particularly suitable.”  The court permanently enjoined BoardFirst “from using in a way that breaches the Terms posted on the site.”  The court denied Southwest’s motion as to its federal and state computer-related causes of action and as to BoardFirst’s tortious interference counterclaims.

Note:  This opinion is significant because many web site owners, such as Ticketmaster in its lawsuit against, have failed to persuade courts to enforce their sites’ terms and conditions.  The opinion provides an effective road map for airlines that wish to make sure that users of their sites comply with the sites’ rules.

DOT considering whether to increase denied boarding compensation

August 21, 2007

Way back in 1978, the CAB increased to $400 the maximum amount of compensation due from an airline that involuntarily denies a passenger boarding due to overbooking.  At the time of the increase, Jimmy Carter was president and the most popular TV show in the U.S. was “Laverne & Shirley” (followed closely by “Happy Days” and Three’s Company”).  On July 10, 2007, DOT issued an advance notice of proposed rulemaking seeking comment on whether it should increase the $400 limit, as well as make its denied boarding compensation regulations apply to aircraft seating 30 to 60 passengers, which are currently exempt from such regulations.

The regulations regarding “oversales” are set forth in 14 C.F.R. Part 250.  They apply to both domestic and foreign airlines but only to flights originating in the U.S. (and utilizing aircraft with more than 60 seats).  If a flight is oversold, the airline is required to seek volunteers willing to accept compensation in exchange for their seats.

If the airline needs to bump passengers, each bumpee is entitled to compensation “at the rate of 200 percent of the sum of the values of the passenger’s remaining flight coupons up to the passenger’s next stopover, or if none, to the passenger’s final destination, with a maximum of $400.  However, the compensation shall be one-half the amount described above, with a $200 maximum, if the carrier arranges for comparable air transportation, or other transportation used by the passenger that, at the time either such arrangement is made, is planned to arrive at the airport of the passenger’s next stopover or if none, at the airport of the passenger’s destination, not later than 2 hours after the time the direct or connecting flight on which confirmed space is held is planned to arrive in the case of interstate air transportation, or 4 hours after such time in the case of foreign air transportation.”  The bumped passenger is also entitled to a refund of the unused portion of the ticket.

A passenger is ineligible for denied boarding compensation under certain circumstances, most notably when “the passenger does not comply fully with the carrier’s contract of carriage or tariff provisions regarding ticketing, reconfirmation, check-in, and acceptability for transportation.”

Last year, the 18 largest U.S. airlines bumped at a rate of 1.01 passengers per 10,000 enplanements, resulting in a total of 55,828 bumped passengers.  Comments to DOT are due by September 10, 2007.

Note:  As one commenter on this post correctly pointed out, if a bumped passenger declines the airline’s payment of denied boarding compensation, “the passenger is entitled to ‘seek to recover damages in a court of law or in some other manner’ under 14 C.F.R. § 250.9(b), which language is universally regarded as permitting a claim for contract damages which may exceed the amount of compensation offered by an airline.”  Stone v. Continental Airlines (N.Y. City Civ. Ct. 2005).  Section 250.9(b) also provides that acceptance of the denied boarding compensation “may relieve [the airline] from any further liability to the passenger caused by its failure to honor the confirmed reservation.”

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

July 21, 2007

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.

Jury returns verdict for passenger in refusal to transport case

January 21, 2007

Cerqueira v. American Airlines, Inc. (D. Mass. Jan. 12, 2007).  In December 2003, the airline removed three passengers, a man of Portuguese national origin and two Israelis seated nearby, from an aircraft at the departure gate in Boston for questioning by state police officers.  After the questioning, the airline declined to rebook them on another flight to Ft. Lauderdale.

The passenger of Portuguese national origin filed a lawsuit against the airline.  He alleged that airline personnel removed him from the aircraft and then refused to provide him service solely because of his perceived national origin, in violation of Title VI of the Civil Rights Act and a Massachusetts antidiscrimination statute.  The airline alleged that the passengers had been removed for questioning and then refused service solely due to security concerns based on their alleged unusual behavior before and during the boarding process.

After a six-day trial, the jury returned a verdict in favor of the passenger, assessing compensatory damages of $130,000 and punitive damages of $270,000.  The passenger had also requested that the court enter an injunction ordering the airline to take steps “to prevent similar occurrences in the future,” but the court did not take such action.

Update:  As reported here, in January 2008 the First Circuit reversed the trial court’s judgment in this case.


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