Passenger unable to break Montreal Convention baggage liability limit

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.

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

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.

Airline obtains summary judgment in offended passenger case

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.  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

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

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

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.