Ninth Circuit again rejects passengers’ deep vein thrombosis arguments

Twardowski v. American Airlines, Inc. (9th Cir. (Cal.) July 30, 2008).  The passengers in these consolidated appeals alleged that they had suffered injuries from deep vein thrombosis (“DVT”) they had developed during flights for which they had bought tickets between 2001 and 2004.  They alleged that the airlines were liable for such injuries because the airlines had not warned the passengers of the risk of developing DVT, despite public statements that the International Air Transport Association (“IATA”), airline medical officers, and even the august English House of Lords, had made, before the flights at issue, suggesting that the airlines issue such warnings.

Before the trial court, the airlines had successfully moved for summary judgment under Article 17 of the Warsaw Convention, which applied to the flights at issue and thus provided the passengers’ exclusive remedy against the airlines.  Article 17 of the Convention governs an airline’s liability for a passenger’s death or bodily injury; it provides as follows:  “The carrier is 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 U.S. Supreme Court has defined an “accident” under Article 17 as “an unexpected or unusual event or happening that is external to the passenger,” not “the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.”

In separate prior decisions, the Ninth Circuit had held that developing DVT during a flight is not an “accident” within the meaning of Article 17, and that an airline’s failure to warn about the risk of DVT is not an “event” within the meaning of the foregoing Supreme Court definition of an “accident.”  In Twardowski, the passengers – reaching for what was almost certainly the last arrow in the DVT quiver – argued that the airlines’ failure to comply with the suggestions by IATA and others to warn passengers about DVT was an unexpected “event” and, thus, an “accident” within the meaning of Article 17.

The Ninth Circuit rejected the passengers’ arguments.  It reasoned that an airline’s failure to warn a passenger about DVT does not become an unexpected “event,” and thus an Article 17 “accident,” just because various groups and individuals have publicly suggested that the airline give such warnings.  The court drew a distinction between the general suggestions made to the airlines in this case and the specific requests for health-related assistance made by passengers to airlines in certain other cases in which the courts held that the airlines’ failure to comply with those requests constituted an unexpected “event.”

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.

Court rules on summary judgment motions in charter flights class action

In re Nigeria Charter Flights Contract Litigation (E.D.N.Y. Oct. 25, 2007).  In 2002, World Airways, Inc. and Ritetime Aviation and Travel Services, Inc. entered into a charter aircraft services agreement under which World agreed to supply Ritetime with round-trip flights between points in the U.S. and Lagos, Nigeria.  The charter flights began but, by the end of 2003, Ritetime owed World over $2 million, leading World to discontinue its U.S.-Nigeria operations.  World’s action stranded hundreds of passengers who had traveled on outbound flights and left others who had bought tickets for 2004 unable to travel at all.

After the passengers sued World, Ritetime and its CEO in courts throughout the U.S., the federal cases were consolidated in the Eastern District of New York, which certified a class of plaintiffs in 2006.  The plaintiffs alleged that World is liable under the Montreal Convention for its failure to transport them, and they also alleged state law claims for breach of contract, negligence and fraud.

World moved for summary judgment, contending that (i) the Montreal Convention preempts the plaintiffs’ state law claims, (ii) even if the plaintiffs’ state law contract claims are not preempted, they should be dismissed because there is no privity of contract between World and the plaintiffs, and (iii) even if the Convention does not preempt the plaintiffs’ negligence and fraud claims, the federal Airline Deregulation Act preempts those claims.  The plaintiffs filed a cross-motion for summary judgment.

The court granted World’s motion as to the plaintiffs’ delay claims under the Convention but denied it as to their breach of contract and tort claims.  The court also denied the plaintiffs’ cross-motion.  The court’s specific rulings are as follows.

Montreal Convention preemption.  Delay in international air transportation is governed by Article 19 of the Convention, and whenever the Convention applies, it preempts all state law claims for matters that fall within the scope of its application.  Article 22(1) limits an airline’s liability for a passenger’s delay claim to 4,150 Special Drawing Rights, or about $6,750.  The Convention does not govern nonperformance of a contract of carriage.  The court held that the Convention did not preempt the plaintiffs’ state law claims, ruling that their claims were for nonperformance, not for delay.  The court reasoned that World had “simply refused to transport” the plaintiffs, without offering them alternate transportation, “rather than merely delaying them.”  Of course, this ruling meant that the plaintiffs could not maintain their delay claims under the Convention, and the court granted World’s motion with respect to such claims.

Privity/agency.  The court held that while the tickets themselves did not establish contracts between the plaintiffs and World, factual issues prevented it from granting summary judgment to either side on the issue of World’s liability for Ritetime’s conduct.  The court ruled that the evidence presented was insufficient for it to decide whether the plaintiffs had bought their tickets directly from World; the plaintiffs presented evidence that they had done so, while World presented contradictory evidence.  Similarly, the court held that the existence of disputed facts prevented it from determining whether, as the plaintiffs alleged, Ritetime was World’s agent under theories of actual or apparent authority or that World had ratified Ritetime’s ticket sales.

ADA preemption.  The court rejected World’s contention that the federal Airline Deregulation Act preempted the plaintiffs’ fraud and negligence claims.  The ADA preempts certain state tort (and other) claims “related to a price, route, or service” of an airline.  However, some New York federal courts will refuse to rule that a tort claim is preempted where an airline has engaged in “outrageous” conduct that went “beyond the scope of normal aircraft operations.”  The court held that the ADA did not preempt the tort claims in this case because World’s refusal to transport the plaintiffs constituted “outrageous” conduct.

Court declines to dismiss complaint in passenger heart attack case

Watts v. American Airlines, Inc. (S.D. Ind. Oct. 10, 2007).  During a flight from Japan to Chicago in 2005, the passenger had a heart attack and died in a lavatory.  He was discovered by cleaning personnel after the aircraft had landed.

The plaintiff, the passenger’s wife, filed a lawsuit against American.  The airline moved to dismiss the complaint on the grounds that the plaintiff had failed to state a claim under the Montreal Convention, which applied to the transportation at issue and thus provided the plaintiff’s exclusive remedy.

Article 17(1) of the Convention governs an airline’s liability for a passenger’s death or bodily injury; it provides as follows:  “The 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.”  The U.S. Supreme Court has defined an “accident” as “an unexpected or unusual event or happening that is external to the passenger,” not ”the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.”  In its motion, American contended that no “accident” had occurred because the passenger’s heart attack was caused by his own internal condition that was not related to the operation of the aircraft.

The court disagreed.  Taking the plaintiff’s allegations as true, the court reasoned that “American Airlines’ unusual or unexpected failure to recognize and/or respond to [the passenger’s] heart attack, and its failure to conform to industry custom and practices by responding to his medical emergency, could constitute a link in the chain of the events causing the ill-fated ‘accident’ on board [the flight].”  Accordingly, the court denied American’s motion to dismiss.

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

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 held liable to passenger for travel agent negligence

Rottman v. El Al Israel Airlines (N.Y. City Civil Ct. Jan. 14, 2008).  The parties in this case reprised a battle that has been fought in many passenger cases over the years:  whether a travel agent was acting as an agent of an airline or as an independent contractor when the travel agent sold the passenger a ticket.  In this case, the passenger prevailed.

The passenger had bought tickets from a travel agent for travel between Baltimore and Tel Aviv.  The passenger was to take a flight from BWI to JFK on a domestic airline and then from JFK to Tel Aviv on El Al.  However, the BWI-JFK ticket issued by the travel agent did not allow the passenger sufficient time to comply with El Al’s rule requiring that passengers check in at least three hours before departure.  As a result, El Al deemed the passenger a “no show,” causing the passenger to forfeit his seat on the flight.  The passenger bought a one-way ticket on a different airline and traveled to Tel Aviv three days later.

The passenger sued El Al for breaching the parties’ contract by refusing to transport him and for the travel agent’s negligence in issuing a ticket that made it impossible for the passenger to comply with the advance check-in rule.  The court held that the airline did not breach the contract because the passenger did not attempt to check in until less than an hour before the flight’s departure, thus violating the check-in rule and allowing the airline to deny him transportation on the flight.

As to the negligence claim, the airline claimed that it was not liable because the travel agent was the airline’s independent contractor, not its agent.  The court disagreed.  Citing two 30-plus year-old cases and the Restatement of Agency, the court held that the travel agent was acting as the airline’s agent when it sold the tickets to the passenger and, thus, that the airline was responsible for the travel agent’s error.  The court awarded the passenger a judgment in the amount of the one-way ticket that the passenger had bought.

Note:  The court’s opinion does not contain any indication that the court, in deciding whether an agency relationship existed between El Al and the travel agent, considered the degree of control that the airline actually had over the travel agent.  As the Ninth Circuit correctly held in Harby v. Saadeh and Kuwait Airways, an agency relationship between an airline and a travel agent only exists where the passenger has met the burden of proving that the airline had agreed to allow the travel agent to act on its behalf and subject to its control.  In Harby, the court held that Kuwait Airways was not liable for a travel agent’s negligence in failing to warn the passenger about the airline’s infrequent flight schedule because the passenger had failed to meet his burden of proving that the airline actually controlled such agent, thus leading the court to conclude that the agent had simply acted as a broker, i.e., an independent contractor.

In Rottman, the court concluded that El Al and the travel agent stood in an agency relationship simply because, in the court’s view, all airlines and travel agents that issue tickets for them do so.  In support of its conclusion, the court in Rottman cited the following sentence from the Restatement of Agency:  “Analogizing them to insurance agents, travel agents have been characterized as the agents of airlines and other service providers for whom they issue tickets to customers.”  But, later in the same paragraph, the Restatement of Agency also states:  “In other situations, courts have analogized a travel agent to an insurance broker or, reasoning differently, have characterized a travel agent as the customer’s agent.”  As Harby and the Restatement indicate, an agency relationship does not always exist between an airline and a travel agent that sells tickets for that airline.

Warsaw Convention preempts passenger tort claim against airline

Small v. America West Airlines, Inc. (D.N.J. Oct. 30, 2007).  The passenger alleged that the airline was liable under the New Jersey Consumer Fraud Act because it had tortiously denied losing his baggage, thereby preventing him from filing a claim against his insurance company.  The airline argued that the passenger’s state law claim was preempted by the Warsaw Convention.  In response, the passenger contended that his claim was not preempted because he was seeking tort damages, not lost baggage damages, due to the airline’s misrepresentation that it had not lost his baggage.

The court did not buy the passenger’s creative argument.  It held that the passenger’s claim was preempted because the Convention requires that all baggage-related claims arising from international air carriage, sounding “in contract or in tort or otherwise,” be brought exclusively under the Convention.

Fifth Circuit vacates summary judgment against passenger in baggage case

Muoneke v. Air France (5th Cir. Tex. Sept. 17, 2007).  The day after her flight from Texas arrived in Nigeria, the passenger went to the airline’s lost baggage office at the airport and claimed that several items were missing from her checked baggage.  The passenger alleged that she submitted a written claim regarding the missing items during her visit to the baggage office, but the airline alleged that it had no record of having received such claim.

The passenger filed a state court lawsuit against the airline, which removed the case to federal court.  The passenger moved that the case be remanded because the amount in controversy did not exceed $75,000.  The Fifth Circuit affirmed the trial court’s denial of the remand motion, holding that because the passenger’s complaint involved the interpretation and application of a treaty – the Warsaw Convention – the trial court had federal question jurisdiction, which has no dollar-amount requirement.

After the trial court denied the passenger’s remand motion, the airline moved for summary judgment on the grounds that the passenger had failed to submit a timely written claim under Article 26 of the Warsaw Convention and the airline’s contract of carriage, both of which required submission of a written claim within seven days of the passenger’s receipt of her baggage.  The Fifth Circuit vacated the trial court’s summary judgment for the airline, holding that the passenger’s submissions in opposition to the airline’s motion were sufficient to create a genuine issue of material fact as to whether she had submitted a written claim.

Note:  The Warsaw Convention and its successor, the Montreal Convention, impose time limits for submitting written claims for baggage and cargo damage and delay but not for loss.  However, neither Convention prohibits airlines from imposing their own time limits for submitting written loss claims (see, e.g., Khan v. Singapore Airlines, Ltd. (9th Cir. 1997)), and airlines typically impose such limits through their conditions of carriage.  Courts usually regard the delivery of baggage with some items missing, as occurred in the above case, as baggage damage rather than loss for purposes of Article 26.  See Maro Leather Co. v. Aerolineas Argentinas (N.Y.A.D. 1988).

Court enforces two year limit in baggage case

Onyekuru v. Northwest Airlines and KLM Royal Dutch Airlines (N.D. Ill. Sept. 14, 2007).  In August 2006, the passenger filed a lawsuit against the airlines seeking damages for the alleged theft of items from the baggage she had checked for her June 2004 flight from Nigeria to Chicago.  The airlines moved for summary judgment on the grounds that her claim was time-barred by Article 35(1) of the Montreal Convention, which provides as follows:  “The right to damages shall be extinguished if an action is not brought within a period of two 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 carriage stopped.”

The court granted the airlines’ motion because the passenger had filed her lawsuit more than two years after her flight had arrived in Chicago.

Note:  The court described the two year limit imposed by Article 35 as a “statute of limitations” and noted that the passenger had failed to “offer any evidence to suggest that the limitations period was tolled.”  Because the two year limit is a condition precedent to suit, not a statute of limitation, it is not subject to tolling.

Passenger’s seating decision dooms her personal injury lawsuit

Zarlin v. Air France (S.D.N.Y. Sept. 6, 2007).  A flight attendant reseated the passenger during an international flight after she complained that the passenger in front of her had deliberately reclined his seat so that it touched her.  Without informing a flight attendant, the passenger returned to her original seat because the alternative seat was too close to a lavatory.  The passenger in front then reclined his seat again, this time “striking and injuring” the plaintiff’s knee.

The passenger sued the airline, seeking damages for “her medical costs, the value lost in a country club membership, and expenses incurred for pool membership and to resurface her tennis court.”  Air France moved for summary judgment on the grounds that the passenger’s injury was not the result of an “accident” with the meaning of Article 17 of the Warsaw Convention, arguing that (i) the reclining of the seat was not an “unusual or unexpected” event and thus not an “accident,” and (ii) the passenger’s decision to return to her original seat was the proximate cause of her injury.

The court granted the airline’s motion.  Although the court expressed “serious doubts” that the reclining of the seat was an “accident,” the court ruled that the existence of disputed facts made the granting of summary judgment on this issue improper.  The passenger was not so lucky with the airline’s proximate cause argument.  The court held that the passenger’s decision to return to her seat was the proximate cause of her injury, reasoning that if she had “remained in the new seat she was offered by Defendant’s flight crew, the incident in question could not have taken place.”  The court concluded that because no reasonable jury could find that the airline’s conduct was the proximate cause of the passenger’s injury, the passenger had failed to establish that an “accident” within the meaning of Article 17 had taken place.  Since the Warsaw Convention provided the passenger’s only possible remedy, her claim failed.