Court rejects passenger’s “principal and permanent residence” argument in subject matter jurisdiction dispute

February 13, 2014

Razi v. Qatar Airways Q.C.S.C. (S.D. Tex. Feb. 6, 2014).  A passenger traveling on a roundtrip ticket for transportation originating in Pakistan alleged she was burned by a hot beverage served by a flight attendant during a flight from Doha, Qatar, to Houston.  The passenger filed a lawsuit in a Texas state court, which the airline removed to federal court.

Qatar Airways then moved to dismiss on the grounds that the court lacked subject matter jurisdiction under the Montreal Convention.  Pursuant to Article 33 of the Convention, a plaintiff may bring an action for damages in the United States against a carrier only when the United States is (i) “the domicile of the carrier,” (ii) the “principal place of business” of the carrier, (iii) the place where the carrier has a “place of business through which the contract has been made,” (iv) “the place of destination,” or (v) in cases involving the death or injury of a passenger, the “principal and permanent residence” of the passenger at the time of the accident.

The passenger’s only possible shot at defeating the motion was proving that the United States was her “principal and permanent residence,” which the Convention defined as her “one fixed and permanent abode,” at the time of the incident.  She had alleged in her complaint that she resided in Houston, but the court found that, at the time of the incident, she was a citizen of Pakistan, was traveling to the United States under a “Five-Year Multiple-Entry Visa” and had intended to stay in the United States for only three and a half months.  Based on these findings, the court ruled that the passenger’s “one fixed and permanent abode” was Pakistan, not the United States, and granted the airline’s motion.

Note:  Qatar Airways successfully used a similar subject matter jurisdiction argument in a Maryland case (Alemi v. Qatar Airways) in 2012.


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.


Passenger not required to prove violation of regulation in order to establish that “accident” under Montreal Convention occurred

November 13, 2011

Phifer v. Icelandair (9th Cir. (Cal.) Sept. 1, 2011).  While boarding a flight from Minneapolis-St. Paul to Reykjavik, Iceland, the passenger struck her head on an overhead video monitor that was extended in the “down” position.  She sued Icelandair, alleging liability under the Montreal 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.”  To establish in a U.S. court that an “accident” under Article 17(1) took place, a plaintiff must prove that the injury was caused by “an unexpected or unusual event” that was “external to the passenger.”

The trial court granted the airline’s summary judgment motion on the grounds that the passenger had failed to establish that her injury was caused by an “accident” within the meaning of Article 17(1) because she had failed to prove that the airline had violated any “FAA requirements” by having the video monitor in the down position during boarding.

The Ninth Circuit, in a brief opinion, reversed and remanded the case.  The appeals court held that, although FAA requirements may be relevant to determining whether an “accident” occurred, proving that an airline violated a government regulation is not “a prerequisite to suit under Article 17.”  According to the appeals court, “[t]he Supreme Court has suggested that a per se rule requiring a regulatory violation would be improper.”


Court denies airline’s summary judgment motion in trip and fall case

September 25, 2011

Walsh v. Koninklijke Luchtvaart Maatschappij N.V. (S.D.N.Y. Sept. 12, 2011).  The plaintiff tripped over a metal bar and fell in a departure gate seating area while walking to join a line of persons waiting to board a flight from Amsterdam to New York.  The plaintiff alleged in his complaint that he sustained a fractured elbow as a result of the fall and that, under the Montreal Convention, KLM is liable for $3 million in damages.

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.”  KLM moved for summary judgment on the grounds that the plaintiff was not injured while “embarking” and that, even if he was, his injury was not caused by an “accident” within the meaning of Article 17(1).

The court denied KLM’s motion.  The court first ruled that a reasonable jury could conclude the plaintiff was injured while “embarking” because the incident occurred while the airline was “exercising control” over the plaintiff.  The court reasoned that the airline had control over the plaintiff because the trip and fall took place in the departure gate seating area and while the plaintiff was walking to join a line in response to the airline’s boarding announcements.

The court then concluded that a reasonable jury could also find that the plaintiff’s trip and fall was an “accident” under Article 17(1), although it admitted that this was the “more difficult question.”  To establish in a U.S. court that an “accident” under Article 17(1) took place, a plaintiff must prove that the injury was caused by “an unexpected or unusual event” that was “external to the passenger.”  The airline contended that the plaintiff’s fall was “his own internal reaction to an inert piece of equipment, installed and operating as intended.”  The court disagreed, ruling that a jury could find that the metal bar was unexpected, and thus “external” to the plaintiff, because the photographs submitted by the plaintiff showed that the bar protruded past the seating area and was similar in color to the floor.


Airline not liable for passenger’s deplaning injury caused by fellow passenger

September 21, 2011

Goodwin v. British Airways Plc (D. Mass. Aug. 8, 2011).  The plaintiff had traveled on a British Airways flight from London to Paris.  She alleged in her complaint that, while deplaning, she lost her balance, one of her feet slid into the opening between the aircraft and the jetway and she fell and fractured her ankle.  In her deposition, the plaintiff testified that her fall had been caused by another passenger bumping into her.  According to the airline’s witnesses, the plaintiff lost her footing and fell on her own.

The parties filed cross motions for summary judgment in which they agreed that the Montreal Convention governed the plaintiff’s claim.  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.”  Thus, as the court noted, the “threshold inquiry” in a personal injury case governed by the Convention is whether an “accident” within the meaning of Article 17(1) occurred.

To establish in a U.S. court that an “accident” under Article 17(1) took place, a plaintiff must prove “that (1) an unusual or unexpected event that was external to [the plaintiff] occurred, and (2) this event was a malfunction or abnormality in the aircraft’s operation.”

The airline contended that the first step of the above test had not been satisfied because some bumping and jostling from other passengers is usual and expected while deplaning.  The court disagreed.  Viewing the facts most favorably to the plaintiff, the court found that the alleged bump by the other passenger, which the plaintiff described as having “enough force that it knocked me off my balance and I fell,” was more than “run of the mill jostling” and thus was unexpected.

The airline fared better with respect to the second part of the test.  It contended that the plaintiff’s fall had not resulted from the aircraft’s operation because airline personnel had not had any direct involvement in the events leading to the fall.  The court agreed.  Again viewing the facts most favorably to the plaintiff, the court found that the plaintiff’s fall had been solely caused by another passenger and that there was no evidence of any “out of the ordinary” conditions during deplaning that could have imposed a duty on airline personnel to intervene.  Accordingly, the court granted the airline’s motion and denied the plaintiff’s motion.

Note:  On September 6, 2011, the plaintiff noted her appeal of the court’s ruling.


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.


Montreal Convention two-year limitation period not subject to tolling under local law

January 19, 2011

Duay v. Continental Airlines, Inc. (S.D. Tex. Dec. 21, 2010).  After arriving in Texas on a Continental flight from Switzerland, the plaintiff discovered at the baggage claim area that his custom-fitted wheelchair had been damaged.  Continental provided the plaintiff with a replacement wheelchair, which he used for the remainder of his trip in the United States.

In his complaint against Continental, the plaintiff alleged that the replacement wheelchair caused him to sustain a skin irritation injury that ultimately required surgery.  The plaintiff alleged causes of action for negligence, bailment and breach of contract.

Continental moved to dismiss on the grounds that the plaintiff had failed to perform the condition precedent of filing the lawsuit within the two-year period set forth in Article 35(1) of the Montreal Convention, which provides in part that “[t]he 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.”  The plaintiff’s flight had arrived in Texas on December 2, 2007, but he did not file his complaint until December 18, 2009.

In opposition, the plaintiff contended that his claims were not barred because Article 35(2) of the Convention allows tolling in accordance with Texas law, and because that state’s discovery rule functioned to toll the running of the two-year period.  Article 35(2) provides that “[t]he method of calculating that period shall be determined by the law of the court seised of the case.”

The court agreed with Continental.  First, citing numerous Warsaw Convention cases and that treaty’s drafting minutes, the court ruled that subjecting the Article 35(1) two-year period to the “various tolling provisions of the member states” would be contrary to the Montreal Convention’s policy goal of achieving uniformity of the rules governing international air transportation claims.  Second, the court rejected the plaintiff’s tolling argument on the grounds that the Texas discovery rule does not apply where the accrual of a limitation period is “specifically defined by law,” and that Article 35(1) “unequivocally prescribes” the accrual date as the date of the arrival of the flight.  Accordingly, the court granted Continental’s motion to dismiss.


DOT enforces consumer-friendly interpretation of Montreal Convention baggage liability provisions

January 4, 2011

As previously reported, on March 26, 2009 DOT issued a “Guidance on Airline Baggage Liability and Responsibilities of Code-Share Partners Involving International Itineraries” that states in part as follows:  “Although carriers may wish to have tariff terms that prohibit passengers from including certain items in checked baggage, once a carrier accepts checked baggage, whatever is contained in the checked baggage is protected, subject to the terms of the [Montreal] Convention, up to the limit of 1000 SDRs (Convention, Article 22, para. 2).”  (On December 30, 2009, the 1,000 SDR limit was increased to 1,131 SDRs, which is currently equivalent to about $1,750.)

Upon receiving a consumer complaint after the 90-day grace period for compliance with the Guidance, DOT initiated an enforcement action regarding Air France’s policies and practices with respect to items of checked baggage lost or damaged in transit to or from the United States.  DOT’s specific concern was over the airline’s General Conditions of Carriage, which disclaimed liability for “valuable, fragile or perishable items” in checked baggage and the reliance of the airline’s Customer Relations Department on such disclaimer to deny liability for the loss or damage of jewelry, electronic equipment and similar items.

By a Consent Order issued on December 23, 2010 (Order 2010-12-26), DOT announced that it and Air France had reached a settlement.  Under the settlement, Air France agreed to modify its policies and practices in order to comply with the Guidance and to pay a compromise assessment of $50,000 (and an additional $50,000 should it violate the Order within a year).

Note:  In a November 18, 2010 ruling, the Canadian Transportation Agency struck down an airline’s tariff rule, as well as a proposed revised version of such rule, that purported to preclude an airline’s liability for fragile and valuable items in baggage checked in connection with carriage subject to the Montreal Convention.  See Lukács v. WestJet (Decision No. 477-C-A-2010).  On February 1, 2011, the Federal Court of Appeal denied WestJet’s application for leave to appeal the agency’s decision.


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.


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