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.

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.

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.

Passengers’ state law seating and routing claims held preempted

Onwuteaka v. Northwest Airlines, Inc. and KLM Royal Dutch Airlines (S.D. Tex. May 10, 2007).  The passengers, a family of four, had two grievances concerning their international flight.  First, their request for “adjoining seats” was not honored.  Second, “[f]ive hours into their flight from Amsterdam to Nigeria, the plane was abruptly piloted back to Amsterdam where the Plaintiffs were forced to remain in the airplane for three hours until the plane again departed for Nigeria.”

Based on these allegations, the passengers’ lawsuit advanced causes of action against the airlines for deceptive trade practices, common law fraud, false imprisonment, negligent misrepresentation, breach of contract, “economic and actual damages,” “damages for mental anguish,” “multiple damages” and attorneys’ fees.  In their motion for judgment on the pleadings, the airlines contended that because the passengers’ claims arose during international air carriage, the Montreal Convention governed such claims and preempted the passengers’ causes of action, all of which were based on Texas statutes or common law.

In a brief but forceful opinion, the court agreed with the airlines and granted their motion.  The court noted that the passengers had tried to salvage their case by asserting a claim under Article 19 of the Convention in their (two-page) opposition to the motion.  Article 19 provides that an airline is “liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo” (but not if it took all reasonable measures to avoid the damage or if it was impossible to take such measures).  But the court then shot down the passengers’ delay argument by holding that the type of damages they were claiming – “mental anguish” damages – is not recoverable under Article 19.

Note:  The docket report for this case appears to show an impressive display of docket control by the court.  The report suggests that, two weeks after the airlines filed their answer, the court reviewed the pleadings filed in the case on its own initiative, ordered that the airlines file a motion to dismiss and that the passengers then file an opposition “showing cause why this case should not be dismissed as frivolous.”

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.

Airline’s summary judgment motion under the Warsaw Convention denied because passenger had not been “embarking”

Dick v. American Airlines, Inc. (D. Mass. Mar. 12, 2007).  The international travel itinerary of the plaintiff and her elderly mother, who required wheelchair assistance, included a connecting flight at Miami International Airport.  American provided (through a contractor) a wheelchair escort to assist the plaintiff’s mother in getting from the arrival gate to the departure gate.  The escort directed that they use the escalator because the elevator was out of service.  While riding the escalator, the plaintiff’s mother fell backward and injured the plaintiff.

Over two years after the incident, the plaintiff brought a lawsuit alleging a state law cause of action for negligence against American.  American moved for summary judgment on the grounds that the plaintiff’s state law cause of action was preempted by the Warsaw Convention and barred by its “two-year statute of limitations.”  (The incident occurred in 2002, which is why American cited the Warsaw Convention, rather than its successor, the Montreal Convention.)

Article 17 of the Warsaw 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 because the plaintiff “was not sufficiently close in either space or time to the actual physical activity of getting on the aircraft,” she had not been involved in “any of the operations of embarking” when the escalator incident occurred.  Accordingly, the court held that the Convention did not apply and denied American’s motion.

Note:  The court characterized the Warsaw Convention’s requirement that suit be filed within two years as a statute of limitation, but that requirement is really a condition precedent, as the Second Circuit correctly held in Fishman v. Delta Air Lines, Inc.  This is a critical distinction because statutes of limitation are subject to tolling due to infancy and other reasons but conditions precedent are not subject to tolling.  The two-year filing condition precedent is in Article 29 of the Warsaw Convention and in Article 35 of the Montreal Convention.

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.

Montreal Convention eats passenger’s breakfast claim

Knowlton v. American Airlines, Inc. (D. Md. Jan. 31, 2007).  The passenger’s ticket for international travel included the notation “breakfast” for one of the flights.  However, during that flight the passenger was told by a flight attendant that the airline had changed its policy and that she had to pay $3.00 if she wished to have breakfast.

The passenger filed a class action in a state court, alleging that the ”breakfast” notation had created a contractual obligation that the airline provide her with breakfast at no additional charge and that the airline had breached this obligation.  Asserting federal question removal jurisdiction, the airline removed the case to federal court on the grounds that the passenger’s state law claim arose under, and was completed preempted by, the Montreal Convention, an international treaty.

The passenger moved to remand the case to the state court.  The passenger contended that because her claim was for non-performance of a contractual obligation, it was not covered by the Convention - unlike the three types of claims for which airlines are liable under the Convention (death or bodily injury (Article 17), cargo damage (Article 1 and flight delay (Article 19)) - and thus not preempted by the Convention.

Recognizing that there is a “split of authority” in the courts on this issue, the court ruled that the Convention completely preempts all state law claims arising out of international flights.  The court explained that it had been persuaded to find in favor of complete preemption by the Convention’s emphasis on creating a uniform system of liability, but its concluding statement shows that it had also been influenced by the minimal nature of the alleged breach of contract:  “As a matter of public policy, airlines should not be subject to contract claims in state courts involving a three-dollar breakfast.”

Thus, in this court and in many others, where the Convention applies but does not specifically provide a remedy for the passenger, the passenger cannot look to state law for a remedy.  One can only wonder whether the ruling would have been different if the passenger had been traveling in first class and had been told that she had to pay $50 for her dinner.

Tardy passengers’ state common law “bumping” claims held preempted

Igwe v. Northwest Airlines, Inc. and KLM Royal Dutch Airlines (S.D. Tex. Jan. 4, 2007).  Because the passengers failed to check in at the gate counter in a timely manner, KLM gave their seats to other passengers.  The passengers were “irate” and refused the airline’s offer of transportation on a later flight on a different airline (plus two $500 credit vouchers).  Instead, the passengers bought tickets on a different airline (on an even later flight).

The passengers filed a lawsuit in which they alleged an array of state common law causes of action.  In its summary judgment motion, KLM contended that these claims were preempted by the Montreal Convention because its Article 19 provides the exclusive remedy for delays in international air transportation.  The critical question was whether the passengers’ ”bumping” claims were for contractual non-performance and thus not covered by the Convention (as the passengers argued) or for delay and thus covered by the Convention (as the airline argued).

When the “bumping” airline proves that the passenger refused the airline’s reasonable offer of alternative transportation, the passenger’s lawsuit begins to emit a “giant sucking sound.”  Hearing that sound, the court held that the passengers’ bumping claims were for delay, and thus preempted by the Convention, because the passengers had repudiated the airline’s effort to perform its contractual obligations.  The court also noted that even if the passengers’ claims were not preempted, they still failed because “[a]ll of [the passengers'] troubles were the direct result of their own tardiness.”  Accordingly, the court granted KLM’s summary judgment motion.