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.


Airline prevails on summary judgment by proving it took all reasonable measures to avoid delaying passengers

December 2, 2010

Cohen v. Delta Air Lines, Inc. (S.D.N.Y. Nov. 8, 2010).  The plaintiffs had tickets for travel from New York (JFK) to Buenos Aires, Argentina, connecting in Atlanta.  Due to an air traffic control mandate, the flight to Atlanta was delayed, and, as a result, the plaintiffs missed the flight to Buenos Aires.  Delta booked the plaintiffs on a flight to Buenos Aires the next day and provided them with hotel accommodations, meal vouchers and transportation to and from the hotel.

The plaintiffs sued Delta in state court, alleging that the airline had engaged in multiple acts of “willful misconduct” by failing to provide a gate crew in Atlanta quickly enough, failing to hold the Buenos Aires flight for them and failing to rebook them on a later flight to Santiago, Chile.  The plaintiffs demanded damages of $10,000 as compensation for one lost vacation day in Buenos Aires, the “great discomfort” they suffered due to the “low 30’s” temperature in Atlanta and “the great stress and anguish” they suffered from “being told to run for [the Buenos Aires] flight that the Delta representative knew or should have known was a wasted effort.”

Delta removed the case to federal court, and, after discovery, moved for summary judgment, relying primarily on Article 19 of the Montreal Convention.  Article 19 imposes liability (limited by Article 22(1)) on an airline for delay in the carriage of passengers, but it also provides 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 court granted Delta’s motion, holding that no reasonable juror could conclude, based on the evidence in the record, that Delta “willfully caused” the delay at issue or that the airline “did not take all measures that could reasonably be necessary to avoid the delay.”  The court reasoned that no reasonable juror could conclude that it was possible for Delta to disobey the ATC mandate, to dispatch a gate crew in Atlanta to handle the plaintiffs’ flight before all the flights that had landed earlier, to delay the departure of the flight to Buenos Aires or to rebook the plaintiffs on the Santiago flight, given the insufficient time available to do so.

Note:  For carriage subject to the Montreal Convention, if an airline cannot prove that it took all reasonable measures to avoid the damage caused by the delay or that it was impossible to take such measures, then the passenger can – without having to prove that the airline engaged in “willful misconduct” – recover under Article 19, subject to the liability limit of 4,694 Special Drawing Rights (currently about US$7,200) set forth in Article 22(1).  However, pursuant to Article 22(5), if the passenger can prove that the delay damage resulted from airline conduct “done with intent to cause damage or recklessly and with knowledge that damage would probably result,” the liability limit does not apply.  The term “willful misconduct” does not appear in the Montreal Convention; it does appear (as “wilful misconduct”) in the Warsaw Convention.


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.


Passenger unable to break Montreal Convention baggage liability limit

July 27, 2008

Bassam v. American Airlines (5th Cir. (La.) July 14, 2008).  Four months after her international flight, American Airlines delivered the passenger’s missing baggage to her.  The passenger claimed that items were missing from the baggage, and she sued the airline in state court for over $5,000 for the value of the missing items.  The airline removed the case to federal court, where the passenger amended her complaint to add a claim for $15,000 for the “embarrassment and upset of not being able to dress and appear in public as was her prior practice.”

American moved for summary judgment on the grounds that (i) the passenger’s recovery for her baggage loss was limited to 1,000 Special Drawing Rights (approximately $1,540 at that time) under Article 22(2) of the Montreal Convention, and (ii) the passenger could not recover anything for her “embarrassment” claim because damages for emotional distress not caused by a physical injury are not recoverable under the Convention.

As to the liability limit issue, the passenger argued that the limit did not apply under Article 22(5) of the Convention; that provision removes the Article 22(2) limit “if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result” and “it is also proved that such servant or agent was acting within the scope of its employment.”  The passenger contended that “[t]he four (4) month delay in recovery of the luggage, allowing [her] personal belongings to be ransacked and stolen, compounded with [American’s] refusal to take any meaningful steps to help [her] in an obvious time of need, makes [American’s] actions much more egregious, certainly rising to the level of what any impartial traveler would consider ‘willful misconduct’.”  In essence, the passenger argued that, by themselves, the delay in delivery and the losses she incurred eliminated any need for her to prove that the airline actually engaged in the type of conduct described in Article 22(5) that would result in the lifting of the liability limit set forth in Article 22(2).

The trial court rejected the passenger’s arguments and was affirmed by the Fifth Circuit.  On the liability limit issue, the appeals court held that, to break the limit under Article 22(5), a passenger must prove facts showing that airline personnel either (i) intended to cause damage, or (ii) acted recklessly with the subjective knowledge that damage would probably result from their conduct.  The Fifth Circuit held that the passenger had failed to meet this “heavy” burden by merely resting on the allegations in her pleadings regarding the delay in delivery of her baggage and the losses she incurred.  It also affirmed the trial court’s ruling with respect to the passenger’s emotional distress claim.

Note:  Before the trial court, the passenger had also argued that the Article 22(2) limit did not apply because she had not been notified of the limit before her flight.  She cited Article 3(4), which provides that “[t]he passenger shall be given written notice to the effect that where this Convention is applicable it governs and may limit the liability of carriers in respect of death or injury and for destruction or loss of, or damage to, baggage, and for delay.”  The trial court cited the plain language of Article 3(5) in rejecting her argument; that provision states that “[n]on-compliance with the provisions of the foregoing paragraphs shall not affect the existence or the validity of the contract of carriage, which shall, nonetheless, be subject to the rules of this Convention including those relating to limitation of liability.”  The passenger did not raise this issue on appeal.

Note:  On June 30, 2009, ICAO adjusted the liability limits set forth in Articles 21 and 22 of the Montreal Convention due to inflation.  Accordingly, effective December 30, 2009, the liability limit set forth in Article 22(2) was increased from 1,000 SDRs to 1,131 SDRs.  See U.S. Department of Transportation, Inflation Adjustments to Liability Limits Governed by the Montreal Convention Effective December 30, 2009, 74 F.R. 59017-18 (Nov. 16, 2009).


Airline’s liability limited even for baggage checked against passenger’s will

May 26, 2007

Booker v. BWIA West Indies Airways Limited (E.D.N.Y. May 8, 2007).  After the passenger had boarded the aircraft for a flight from JFK to Guyana in 2004, the airline required that she check, “against her will,” two bags she was carrying.  When the passenger arrived in Guyana both bags were missing.  The bags did reappear four days later, but, according to the passenger, $5,000 in cash, jewelry worth $6,400 and other items had been stolen from the bags.

In her lawsuit against BWIA, the passenger alleged state law causes of action for stolen and damaged baggage, intentional and negligent infliction of emotional distress, deceptive business practices, conversion and negligence.  BWIA moved for partial summary judgment on the grounds that the passenger’s state law causes of action were preempted by the Montreal Convention, which also limited the airline’s liability.  The passenger argued that the Convention did not apply at all because the airline had engaged in “wilful misconduct” and that even if it did apply, the airline’s wilful misconduct lifted the baggage liability limit set forth in Article 22(2).

The court granted the airline’s motion.  The court ruled that the passenger’s claims were “clearly” within the scope of the Montreal Convention and that the airline’s wilful misconduct, if proved, would only lift the Article 22(2) limit, not cause the entire Convention to become inapplicable.  The court rejected the passenger’s argument that the Article 22(2) limit was inapplicable because airline personnel had stolen the missing items; the court explained that because employee theft is outside the scope of employment such conduct could not remove the limit.  Accordingly, the court ruled that BWIA’s liability for the passenger’s missing property was limited to 1,000 Special Drawing Rights pursuant to Article 22(2).  (Per the IMF’s site, 1,000 SDRs was equivalent to US$1,513.23 as of May 25, 2007.)  The court also ruled that because the Convention does not allow recovery for emotional injuries, the passenger’s emotional distress claims were preempted.

Note:  If the passenger’s bags did contain cash and other valuable items, airline personnel probably had to pry them out of her hands to check them.  The opinion only states that the bags were checked “against her will.”  Nonetheless, the court did not hesitate to apply the Article 22(2) liability limit.  Thus, this case can be cited for the proposition that even baggage checked over a passenger’s protest is subject to such limit.

Update.  On January 13, 2009, the Second Circuit affirmed the trial court’s judgment via a brief opinion.  One of the appeals court’s rulings was that the airline’s alleged failure to give the passenger notice of the effect of the Montreal Convention’s baggage liability limit did not affect the validity of such limit.\

Note:  On June 30, 2009, ICAO adjusted the liability limits set forth in Articles 21 and 22 of the Montreal Convention due to inflation.  Accordingly, effective December 30, 2009, the liability limit set forth in Article 22(2) was increased from 1,000 SDRs to 1,131 SDRs.  See U.S. Department of Transportation, Inflation Adjustments to Liability Limits Governed by the Montreal Convention Effective December 30, 2009, 74 F.R. 59017-18 (Nov. 16, 2009).


Airline obtains summary judgment in offended passenger case

April 15, 2007

Maduro v. American Airlines, Inc. (Virgin Islands Super. Feb. 26, 2007).  During a layover in Puerto Rico, the passenger approached American’s ticket counter to verify her connecting flight to the Virgin Islands.  The ticket agent supposedly refused to return the passenger’s ticket and told her “to shut up and take a seat” and that she might not be scheduled to travel on any flight that day.

The passenger sued American, alleging claims under Virgin Island territorial law for negligence, breach of an implied contractual duty to ensure that employees “conduct themselves in a professional manner” and discrimination.  The passenger’s claims seemed to focus solely on her alleged emotional distress from being treated rudely; the opinion does not indicate that the agent’s conduct caused the passenger to miss her flight or suffer any other more tangible injury.  American moved for summary judgment on the grounds that the Warsaw Convention preempted the passenger’s territorial law claims, that the Convention bars recovery for claims for purely emotional injuries (which is true) and that the passenger’s territorial law claims failed because she did not allege any physical injury or sufficient abusive conduct.

Article 17 of the Convention provides the remedy for a passenger’s personal injury, but it only applies when an “accident” took place on the aircraft “or in the course of any of the operations of embarking or disembarking.”  The court ruled that the Convention did not apply because the incident at issue took place at the ticket counter, which was within the terminal and far from her arrival and departure gates, which meant that the passenger was not even close to embarking or disembarking.  But territorial law ended up saving the airline anyway; the court held that the passenger had failed to state sufficient facts to make out claims for negligence, breach of implied contractual duties or discrimination under territorial law.

The Warsaw Convention, not the Montreal Convention, was analyzed in this case because the incident in question took place way back in 1996.  However, the result would have been the same had the Montreal Convention been at issue, as the Article 17 “embarking or disembarking” language is the same in both Conventions.

Note:  Justice appears to move slowly in the territories; eight years elapsed between the time this case was filed and American moved for summary judgment.


Passenger’s backpack beaning lawsuit survives airline’s motion to dismiss

April 3, 2007

Kruger v. United Airlines, Inc. (N.D. Cal. Mar. 1, 2007).  While waiting on a jetway to board a flight departing from San Francisco, 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 backpack incident.

The passenger sued United, alleging state common law causes of action for negligence, negligent training and supervision of employees and negligent infliction of emotional distress; her husband also sued the airline, alleging loss of consortium.  United moved to dismiss the complaint on the grounds that the plaintiffs’ claims were preempted by the Montreal Convention.

The court held that the Convention did preempt 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” (in-flight nausea) that had been caused by an “accident” (the backpack incident) during the course of embarking.  The court also held that (i) the passenger’s husband’s loss of consortium claim was cognizable under the Convention because California law permits such claims, (ii) the plaintiffs’ punitive damages claim was not cognizable because the Convention does not permit recovery of punitive damages, and (iii) the plaintiffs’ emotional distress claim was limited by the Convention to those distress claims arising from the passenger’s physical injuries.

Update:  As reported here, on November 1, 2007, the court granted United’s motion for summary judgment in this case.


Passenger emotional distress claim fails because physical impact absent

December 29, 2006

Atlantic Coast Airlines v. Cook (Ind. Dec. 6, 2006).  A passenger disrupted a commuter flight from Indianapolis to New York by smoking, shouting, sitting in different empty seats and walking toward the cockpit.  Other passengers blocked the aisle to keep the unruly passenger away from the cockpit.  There was no physical contact between the unruly passenger and the other passengers.

Two of the passengers filed suit, alleging negligent infliction of emotional distress and other causes of action against the airline.  Applying Indiana’s “modified impact rule,” the court held that the passengers’ emotional distress cause of action failed because they had not sustained a “direct physical impact” as a result of the airline’s alleged negligence.

The court also held that, even if the passengers had sustained a physical impact of some kind, their emotional distress claim was inadequate because their distress was temporary and speculative.  The court sensibly noted that “complete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people.”


Airline not liable for downgrading passenger tickets

October 12, 2006

Sobol v. Continental Airlines (S.D.N.Y. Sept. 26, 2006).  Due to overbookings, the airline downgraded some of the first class tickets held by family members to coach class, causing the family to be separated during the international flights at issue.

The family members alleged in their lawsuit that the separation caused them emotional trauma and stress, but no physical injury.  They alleged causes of action for emotional distress, breach of contract, conversion, unjust enrichment and punitive damages, and sought damages totaling over $3 million.

Even though the events at issue took place in 2005, and thus were governed by the Montreal Convention, the court primarily analyzed the issues under the Warsaw Convention.  The court rejected the passengers’ emotional distress claim because the separation of the family did not constitute an “accident” resulting in “bodily injury,” as is required to state a claim under the Warsaw Convention.  The court rejected the passengers’ remaining claims on the grounds that because the Warsaw and Montreal Conventions do not contain a provision dealing directly with the downgrading of a ticket, those claims are preempted.  If a passenger whose travel is subject to the Conventions cannot proceed under the Conventions, he cannot proceed at all.


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