MORRISON MAHONEY LLP
Aviation Update
www.morrisonmahoney.com April 16, 2008
MONTREAL/WARSAW International Flight
CONVENTION Kruger v. United Airlines, 2007
Jurisdiction/Notice of Claim U.S. Dist. LEXIS 81081 (2007).
United States District Court
Muoneke v. Compagnie Nationale Air for the Northern District of California
France, 2007 U.S. App. LEXIS 22192
(2007). Passenger claimed a head injury
United States Court of Appeals and emotional trauma and anxiety
for the Fifth Circuit after being hit in head by heavy
Airline passenger claimed damages backpack of another passenger who
for lost luggage under Warsaw was disorderly during embarking.
Convention and appealed the decision of Issue presented is whether Montreal
the United States District Court for the Convention applied and specifically
Southern District of Texas that had whether flight in issue constituted an
granted summary judgment in favor of “undivided international carriage”
airline. under the Convention.
The passenger argued that the The court confirmed that the
district court lacked jurisdiction because Montreal Convention governs “all
the amount in controversy did not exceed international carriage of persons
$75,000. Court held that regardless of performed by aircraft for reward.”
whether there was $75,000 in dispute, Where more than one distinct carrier
district court had jurisdiction as claim is involved Article 1(3) provides that
presented federal question under carriage by successive carriers is one
international treaty and that undivided carriage if “it had been
interpretation of a treaty of the United regarded by the parties as a single
States presents a question of federal operation, whether it had been
law. agreed upon under the form of a
single contract or a series of
Summary judgment was reversed, contracts, and it does not lose its
however, as the court found that there international character merely
was a material issue of fact as to whether because one contract or series of
passenger gave required seven days contracts is to be performed entirely
notice for alleged loss of baggage. within the territory of the same
Airline’s affidavit that it had no record of State.”
any complaint not sufficient to award
airline summary judgment where Court made clear that courts
passenger refuted assertion in affidavit. have consistently held that existing
case law under Warsaw Convention
NOTE: Warsaw Convention requires that, for is useful in addressing claims under
an action for lost or damaged luggage, a written Montreal Convention. The dispositive
claim must be made to the carrier within seven
issue was the intent of the parties,
days from a passenger’s receipt of his luggage.
i.e., whether the flight was part of the carrier of the passenger’s overall
international carriage. It held the E- itinerary—that is, an admission that
ticket made no mention of any the airline (or its agent) actually
international travel. Plaintiff admitted that understood the disputed flight to
she purchased Los Angeles to Brisbane have been part of the [passenger’s]
flights from Quantas via its web site and international journey..”
then separately purchased the Los
Angeles to Seattle flights from United via
United’s website. On the journey from Preemption
Seattle to Brisbane, Plaintiff’s United and
Quantas flights were separated by a day In re Nigeria Charter Flights
and a half layover in Los Angeles for a Contract Litigation, In re World
Airways Litigation, 2007 U.S. Dist.
trip to Universal Studios and a bus tour of
LEXIS 79351 (2007).
Hollywood. Thus, the objective indications
United States District Court
of the parties’ intent are that the Quantas for the Eastern District of New York
and United flights were separate flights.
Where the objective indicia are Issue was whether passenger’s
unambiguous, the court need not claims for breach of contract, fraud,
consider evidence of the parties' and negligence relating to airline
subjective intent. terminated flight program due to
travel company’s alleged failure to
The court was not persuaded that the
pay debt preempted by Montreal
intent of the parties was that the United
Convention.
portion of the journey was part of a
“single operation” that constituted The Court held that the Montreal
international transportation. There was Convention did not preempt the
nothing in United’s records to indicate passengers’ state law claims because
they so intended. Accordingly, it was not the passengers alleged that the
“agreed upon” even as a part of a series airline’s failure to transport the
of contracts. The court stated that a mere passengers constituted
discussion with the reservation agent of nonperformance of a contract, rather
the need to make connections or even than a delay. Court distinguished
gaining the assistance of the airline in other cases which have held refusal
that effort does not indicate the airline to fly constituted delay and thus
understood or intended that the trip be a governed by Convention as those
single operation. cases involved instances where the
airline ultimately provided
NOTE: Notably, court stated that “one
passengers’ with transportation, the
party’s unilateral expectation that a
passengers secured alternative
domestic flight is part of a single
transportation, or there was no
international trip is not enough to convert
allegation of nonperformance.
that expectation into a reality.” Court
Accordingly, as case involved refusal
also stated that “the mere discussion with
to transport rather than merely
the reservation agent of the need to
delay, Article 19 of the Convention
make connections or even gaining the
governing delay claims was
assistance of the airline in that effort
inapplicable and there was no
does not indicate the airline understood
preemption.
or intended that the trip be a single
operation.” Finally, central to decision Court rejected claim that fraud
was principle that “absent an objective and negligence claims preempted by
showing of actual knowledge by the air Airline Deregulation Act (ADA).
2
Court held that while the carriage of In re September 11 Litigation
ticketed passengers on international flight (Falkenberg v. AMR Corp., Teague
and decision to cancel such flight is or v. AMR Corp.), 500 F. Supp. 2d 356
implicates “airline service” under ADA, (2007).
there is no preemption as “neither an United States District Court
for the Southern District of New York
airline’s total and indefinite refusal to
transport ticketed passengers, nor its Plaintiffs, two personal
selection of a contracting carrier that representatives for the estates of
engages in same conduct is ‘reasonably two individuals killed during the
necessary to the provision’ of the services September 11, 2001, terrorist
just described.” attack, brought suit against, inter
alia, defendant airline under the Air
Transportation Safety and System
Article 17/Heart Attack Stabilization Act of 2001, alleging
claims under the Warsaw Convention
Watts v. American Airlines, 2007 U.S.
and on various other grounds. The
Dist. LEXIS 75617 (2007).
representatives moved for summary
United States District Court judgment.
for the Southern District of Indiana
The representatives argued that
Passenger died after suffering heart
under Article 17 of the Warsaw
attack and after entering the lavatory
Convention that the airline was
while flying home from Japan. The
strictly liable for the injuries and that
passengers and crew exited the airplane
it could not sustain an affirmative
after it landed in Chicago, Illinois. The
defense under Article 20 that the
husband’s body was later discovered by a
airline had taken all necessary
cleaning crew. The representative alleged
measures to avoid the damage or
that defendants violated industry
that it was impossible for them to
standards of care and their own policies
take such measures. The airline
and procedures by failing to respond to
conceded that the representatives’
the husband’s medical emergency and by
injuries were caused by an accident
failing to recognize and/or respond to
within the meaning of Article 17 of
visible or verbal indications that he was
the Warsaw Convention and its
having a heart attack while aboard the
liability for 100,000 Special Drawing
aircraft. The court found that the facts
Rights per passenger under its
alleged in the complaint were sufficient to
carrier tariff, but the airline reserved
raise a claim under Article 17 of the
its right to assert an all reasonable
Montreal Convention. The representative
measures defense under Article 20.
sufficiently alleged an accident, arising
Court held that airline was entitled
from the aircraft personnel’s unusual or
to conduct discovery before having
unexpected failure to recognize and/or
to present evidence supporting its
respond to the husband’s heart attack.
affirmative defense, therefore to the
Their actions could constitute a link in the
extent passengers sought recovery
chain of the events causing the husband’s
beyond 100,000 Special Drawing
fatal onboard “accident.” Therefore, the
Rights, the representatives’ motion
defendants' dismissal motion was denied.
was premature.
The representatives’ motion for
summary judgment was granted as
to that portion of their Warsaw
Convention claims equivalent to
3
100,000 Special Drawing Rights, and carrier for cargo damage was time
denied without prejudice as to that barred under Convention.
portion of their Warsaw Convention
Court confirmed that two year
claims in excess of 100,000 Special
condition precedent to suit period
Drawing Rights. The representatives’
under Convention set forth in Article
motion to recover litigation expenses,
35 applies to third party actions.
including attorneys’ fees, was denied as
Fact that defendant was not air
they had no right to recover litigation
carrier but agent for air carrier was
expenses.
not material
Article 17/Disembarking
SECURITY/CIVIL RIGHTS
Bunis v. Israir GSA, Inc., 511 F. Supp.
Cerqueira v. American Airlines,
2d 319 (E.D. N.Y. 2007)
Inc., 2008 U.S. App. LEXIS
Passenger claimed he suffers from 456 (2008).
serious heart condition and that upon United States Court of Appeals
exiting international flight requested for the First Circuit
wheelchair. After 20 minutes he began to
Airline appealed from the United
walk to baggage area and suffered chest
States District Court, which entered
pains and taken to hospital.
judgment for the plaintiff in his suit
Court applied Day test and held that asserting that his removal from a
passenger suffered injury during course flight violated his rights under 42
of disembarking and thus Montreal U.S.C.S. § 1981 to be free of race
Convention applied. Court found as discrimination. A jury awarded the
critical where the alleged injury causing passenger compensatory damages of
event occurred not the actual injury. $130,000 and punitive damages of $
Since the alleged injury causing event 270,000.
was the failure to provide wheelchair
An airline captain made a
after exiting plane it was in process of
decision to remove the plaintiff and
disembarking because it was at the gate
two other passengers from a plane
just following deplaning and involved the
prior to take off based on an odd
awaiting the return of and further
experience he had in the terminal
direction from defendant’s employee.
with one man, information and
NOTE: What constitutes embarking concerns about all three passengers
and disembarking remains problematic expressed by all three flight
and fact intensive. Courts are not uniform attendants, and the fact that the
in addressing issue especially where flight attendants were uncomfortable
injury occurs in terminal/gate area. with the flight departing. The captain
was particularly concerned with the
report of one flight attendant who
Time Bar said that the men seemed extremely
interested in the duties of the flight
American Home Assurance Company v. attendants.
Alliance Air and Polar Air Cargo, 2008
U.S. Dist. LEXIS 23994 (S.D. N.Y. This case did not involve any
2008). claim of constitutional rights on the
part of the plaintiff. Rather, the case
Court granted summary judgment
involved only the intersection of
motion finding that claim against air
4
various statutes, which articulate published in Boston Bar Journal (Air
competing policy concerns. As a matter of Rage and Federal Pitfalls for State
federal policy, under the FAA assigning Based Claims Challenging Airline
and maintaining safety ranks as the Regulation of Passenger Conduct
highest priority in air commerce. During Flight-Sept/Oct. 2000).
Congress has given authorization to the
airline to act in the interest of public
safety and the airline’s discretion is very For more information on our Aviation Practice
or the firm, please feel free to contact:
broad. The airline need not decide that
the passenger or property is inimical to Peter Knight, Partner
safety - the authorization extends to Direct Dial: 617-439-7514
pknight@morrisonmahoney.com
situations in which the carrier decides the
passenger or property “might be” inimical
to safety. Court agreed with the Ninth Gary Harvey, Partner
Direct Dial: 617-439-7576
Circuit and held that an airline’s decisions gharvey@morrisonmahoney.com
to refuse transport under § 44902(b) are
Tory Weigand, Partner
not subject to liability unless the decision Direct Dial: 617-737-8827
is arbitrary or capricious. tweigand@morrisonmahoney.com
The court held that 1) the decision by
a captain who refuses passage stands as
Morrison Mahoney LLP’s Aviation Practice
the decision of the air carrier, 2) review Group is pleased to provide periodic updates
of a decision to refuse transport is on various developments pertaining to
restricted to what information was aviation law. This newsletter is for Morrison
Mahoney aviation clients only and constitutes
actually known by the captain at the time attorney-work product and attorney-client
of the decision, 3) there is no obligation communication and is not to be further
disseminated.
on the part of the captain to make a
thorough inquiry into the information
received, the sources of that information,
or to engage in an investigation, and 4)
the biases of a non-decision maker may
not be attributed to the captain.
Court proceeded to find that the jury
verdict could not stand either on the law
or on the evidence. The district court had
erred in its instructions to the jury by not
explaining the proper standard. It noted
that there was no evidence that the
Captain had discriminatory animus. It
ordered that the judgment for the
This publication has been sent as a service by Morrison
passenger be vacated and that judgment Mahoney LLP and may be considered an advertisement or
enter for the airline. solicitation under state or federal law. The distribution list
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by trial judge. Court confirms great
deference that must be accorded airline
captain given the circumstances of airline
flight. Boston Partner Tory A. Weigand
previously wrote on this subject in article
5
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