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.

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 analyzes “accident” location in ruling on passenger remand motion

Bunis v. Israir GSA, Inc. and Israir Airlines & Tourism, Ltd. (E.D.N.Y. July 30, 2007).  The passenger arrived at JFK on an international flight and deplaned.  At the arrival gate, the passenger asked an airline employee for a wheelchair.  After waiting 20 minutes, the passenger started walking toward the baggage claim area.  In the international arrivals area, but beyond the arrival gate, the passenger began to have chest pains.  The passenger made it to the baggage claim area, where he asked for medical assistance.  He was taken to a hospital by ambulance.

The passenger filed a state court lawsuit against the airline alleging negligence causes of action.  The airline removed the case to federal court on the grounds that the court had original jurisdiction under the Warsaw Convention.  The passenger moved to remand the case to state court, arguing that the Convention did not apply because he had not been in the process of “disembarking” when he sustained his injuries.  Article 17 of the Convention provides that “[t]he carrier shall be 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.”  If the passenger had been in the process of “disembarking” when the “accident” occurred, Article 17 would apply and the court would have jurisdiction under the Convention.

In analyzing this issue, the court rejected both parties’ contention that the “accident” had occurred in the baggage claim area, i.e., where the passenger had asked for medical assistance.  The court ruled that the accident in this case was the airline’s failure to provide the requested wheelchair, and that this failure had occurred while the passenger was at the arrival gate.  Given the proximity of the arrival gate to the aircraft, the court held that the accident had occurred while the passenger was in the course of disembarking.  Accordingly, the court denied the passenger’s remand motion.

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.

Passenger case remanded because “international transportation” not involved

Christoph v. American Airlines (E.D.N.Y. Nov. 17, 2006).  The passengers bought roundtrip tickets on American for travel between New York (LGA) and Ft. Lauderdale using the airline’s web site, and separately, they bought roundtrip tickets on another airline for travel between Miami and Brazil using a travel agent.  After their vacation in Brazil, the passengers returned to Miami and then took an American flight from Ft. Lauderdale to LGA, where they discovered that some of their baggage was missing.

The passengers filed a lawsuit against American in a New York state court.  The airline removed the case to federal court, claiming federal question jurisdiction under the Warsaw and Montreal Conventions.  The passengers moved to remand the case to state court on the grounds that the case did not involve ”international transportation” within the meaning of the Warsaw Convention.

The court agreed with the passengers and remanded the case.  The most compelling fact, in the court’s view, was that American was not able to produce any evidence that it knew of the passengers’ international destination.  Thus, according to the court, American could not satisfy the Warsaw Convention’s requirement that both parties view the domestic and international flights at issue as a “single operation.”

Even though the Montreal Convention supplanted the Warsaw Convention in November 2003 and the travel at issue took place in 2005, the court analyzed this matter under the Warsaw Convention.