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stating that Article 19 only applies to “economic loss occasioned by delay in transportation”
Summary of this case from Campbell v. Air Jamaica Ltd.Opinion
05 CV 8992.
September 26, 2006
MEMORANDUM AND ORDER
Before the Court is a motion by defendant Continental Airlines for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. The plaintiff Sobol family, through Eran Sobol as assignor of the parties, brought suit seeking damages totaling $3,009,927.18 stemming from the downgrading of a first class ticket to coach on an international flight from Newark, New Jersey to Mazatlan, Mexico, and the later downgrading of two first class tickets upon the family's return. Plaintiffs' verified complaint includes claims for emotional distress, breach of contract, conversion, unjust enrichment, and punitive damages. For the reasons set forth below, defendant's motion for summary judgment is granted.
Defendant's were improperly pled as Continental Airlines; their corporate name is Continental Airlines, Inc. (See Notice of Removal.)
FACTUAL BACKGROUND AND JURISDICTION
The facts alleged in the complaint and the accompanying documents are as follows: On July 28, 2004, Eran Sobol bought four round trip first class tickets for himself and his family (the other named plaintiffs) for travel on Continental flight #49, departing February 19, 2005, from Newark, New Jersey to Mazatlan, Mexico with a return date of February 26, 2005 on flight #310. (Compl. at 3, 7.) Plaintiff paid $4,963.59 for the round-trip fares. Id. This itinerary contained a layover in Houston. (Compl. at 3.) Upon plaintiffs' arrival at Newark International Airport at 4:30 A.M. on February 19, 2005, plaintiff Lora Sobal was informed by representatives of Continental that flight #49 was oversold and that she would have to take a later flight in order to join her family for the remainder of their vacation. Id. at 3. After tempers were lost, a Continental representative found Ms. Sobol a seat on flight #49, albeit in coach class. (See Pls.' Answers to Interr. in Certification of Carolyn Geraci Frome In Support of Def.'s Motion for Summ. J., ex. E, at 2.) Because of the downgrading of the ticket, plaintiff was reimbursed $34.00, the difference between the price of the deeply discounted first class ticket she held and the coach fare, and offered and accepted a $300 travel voucher and an additional free upgrade from coach to first class on a later flight. (See Certification of Carolyn Geraci Frome In Support of Def.'s Motion for Summ. J., ex. E, Letter to Mr. Piken from Def.)
Plaintiff Eran Sobol sat in first class with his two children, Olivia (age 5) and a 22 month infant and was not permitted by defendant's staff to have his wife come to first class from coach to help care for the children on the first leg of the flight. (Compl. at 4.) This separation allegedly caused plaintiffs to suffer emotional trauma and stress. Id. Mr. Sobol was in pain during the flight, due to recent knee surgery, and because of the pain and the children's general unruliness, unable to feed his children on the flight. (See Pls' Answers to Interrogatories in Certification of Carolyn Geraci Frome In Support of Def.'s Motion for Summ. J., ex. E, at 2, 5.) Plaintiffs do not allege any physical injury due to the actions of Continental, nor are plaintiffs seeking compensation for any medical or hospital treatment. Id.
While returning from Mazatlan one week later, on February 26, 2005, plaintiffs again were downgraded from their reserved seats. (Compl. at 7.) This time two members of the family, Eran Sobol and Olivia, were downgraded to coach. (See Pls.' Answers to Interr. in Certification of Carolyn Geraci Frome In Support of Def.'s Motion for Summ. J., ex. E, at 3, 5.) Continental reimbursed plaintiffs for the difference in the fares, which amounted to $47.00. Id. On March 8, 2005, plaintiffs received 8,000 frequent flier miles from Continental (2,000 per family member) as a gesture of good will. (See Pls.' Answers to Interr. in Certification of Carolyn Geraci Frome In Support of Def.'s Motion for Summ. J., ex. E, at 5.)
Unsatisfied with the recompense, plaintiffs, New York residents all, brought suit against defendant Continental, a Texas corporation, in the Supreme Court for the State of New York on September 14, 2005. (See generally Notice of Removal of Def. Continental Airlines, Inc.) On October 21, 2005, defendant removed the case to the Southern District of New York on the basis of diversity of citizenship under 28 U.S.C. § 1332 and on the basis of federal question jurisdiction under 48 U.S.C. § 1331 because the claim arose under the Warsaw Convention, 49 Stat. 3000 T.S. No. 876 (1934), note following 48 U.S.C. § 40105. Id.
The parties in this matter alternatively refer to the statute at issue as either the Montreal Convention, or the Warsaw Convention, or even the Warsaw/Montreal Convention. The Montreal Convention modifies and supersedes the international aeronautical treaty commonly referred to as the Warsaw Convention, however the cases in this area still refer to the regulations for the most part as the Warsaw Convention, as this Court shall as well, when appropriate. In any event, for the purposes of this motion, the distinction is one without a difference as the preemptive effect of either convention is the same. Paradis v. Ghana Airways, Ltd., 348 F. Supp. 2d 106, 111 (S.D.N.Y. 2004) ( aff'd Paradis v. Ghana Airways, Ltd., 2006 U.S. App. LEXIS 21517 (2d Cir. 2006)) ("The Court need not determine which convention applies, because they have substantially the same preemptive effect.")
Continental Airlines now moves for summary judgment on the Verified Complaint pursuant to Fed.R.Civ.P. 56(c) on the grounds that the Warsaw Convention precludes plaintiff from pleading any legally viable claim.
SUMMARY JUDGMENT STANDARD
A court may grant summary judgment only where the moving papers and affidavits submitted by the parties show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);Brown v. City of Oneonta, 106 F.3d 1125, 1130 (2d Cir. 1997). The moving party bears the initial burden of establishing the absence of any genuine issue of material fact. Celotex Corp., 477 U.S. at 330. "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In other words a court considering a motion for summary judgment "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996).
APPLICABILITY OF THE WARSAW CONVENTION
The primary purpose of the Warsaw Convention is to "achieve uniformity of rules governing claims arising from international air transportation." El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 169 (1999) (quoting Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 552 (1991)). In order to foster such uniformity, the Warsaw Convention precludes "a passenger from maintaining an action for personal injury damages under local law when her claim does not satisfy the conditions for liability under the Convention." Tseng, 525 U.S. at 176. Because a passenger must bring suit under the Warsaw Convention if she intends to bring a suit under local law, the court shall determine whether the Warsaw Convention allows for the local action to proceed. If the Convention does not allow for a particular claim to proceed it cannot be brought on other grounds.
Article 1 of the Warsaw Convention states it applies to "all international transportation of persons, baggage, or goods performed by aircraft for hire." Plaintiffs traveled from Newark, New Jersey, to Mazatlan, Mexico, with a layover in Houston, Texas, as part of a round-trip package purchased from Continental. (Compl. at 3, 7.) Though there was a stop within the United States, for the purposes of the Warsaw Convention, even the Newark to Houston leg of the flight is deemed to be international so long as the parties regard it as such. Plaintiffs purchased these tickets as part of a round-trip international vacation. It is clear they considered this to be `one undivided transportation' and described their trip as "Newark Airport to Mazatlan, Mexico, via Houston, Texas." (Compl. at 3 (emphasis added).) See Note following 49 U.S.C. § 40105, Article 1(3) ("Transportation to be performed by several successive air carriers shall be deemed, for the purposes of this convention, to be one undivided transportation, if it has been regarded by the parties as a single operation . . ."). Defendant also regarded the purchased tickets as international in scope. (See Affirmation in Further Support of Continental Airlines, Inc.'s Motion for Summ. J., ex. B.) Contrary to plaintiffs' contentions, it is clear that the Warsaw Convention governs in this case, as this was international travel.
The Warsaw Convention is formally known as the Convention for the Unification of Certain Rules Relating to International Transportation by Air, 49 Stat. 3000, T.S. No. 876 (1934). It is reprinted in the note following 40 U.S.C. § 40105.
See Note following 49 U.S.C. § 40105, Article 1(2) ("`[I]nternational transportation' shall mean any transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated either within the territories of two High Contracting Parties . . .") (emphasis added). See also Motreal Convention, Ch. I, Art. 1(3) (travel does "not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territories of the same State."). Both the United States and Mexico are signatories of the Convention.
Plaintiffs were also made aware by defendant that this voyage was considered international; though not required to provide notice to its passengers of the Warsaw Convention, defendant does so on the ticket's jacket. See Affirmation in Further Support of Continental Airlines, Inc.'s Motion for Summary Judgment, ex. B.
Article 17 of the Convention provides that an airline "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." Note following 49 U.S.C. § 40105. In this way, Article 17 only imposes liability, if (i) there has been an "accident"; (ii) resulting in "bodily injury"; and (iii) the incident took place while on board the aircraft or during the operations of embarking or disembarking.Eastern Airlines v. Floyd, 499 U.S. 530, 535-36 (1991). Defendant concedes that seating assignments are part of the embarkation process, but correctly asserts that plaintiffs do not meet the other two prongs of the test. (See Def. Mem. of Law in Support of Motion for Summ. J., at 8.)
In Air France v. Saks, 470 U.S. 392, 405 (1985), the Supreme Court held that an accident is "an unexpected or unusual event or happening that is external to the passenger." The Court cautioned that courts should flexibly apply this interpretation; however it explicitly stated that "when the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and Article 17 of the Warsaw Convention cannot apply." Id. at 406. It is clear that plaintiffs' claim for emotional distress falls into the Court's caveat. The factual basis for plaintiff's claim is that due to the downgrading of some tickets they were "caused to suffer and suffered emotional trauma and stress, as the family was forced to sit separately throughout the flight and were not permitted contact." (Compl. ¶ 19.) It is apparent then that plaintiffs' emotional distress was caused by actions occurring on the plane, namely the separation of the family, and not, for example, upon learning that the ticket was going to be downgraded.
Though occurring on board, the separation and segregation of the party does not qualify as an "accident" for the purposes of the Warsaw Convention as interpreted in Air France. Sitting apart from one's family can hardly be described as out of the ordinary or unexpected on a plane flight, nor is the rigid enforcement of the boundary between first class and coach a surprise to anyone who has flown before. Neither would the theoretical emotional distress of learning of the downgrade qualify as out of the ordinary or unexpected for those, like plaintiffs, accustomed to travel, especially in light of the fact that Continental's own Contract of Carriage provides for various remedies should such a situation arise. (See Certification of Carolyn Geraci Frome in Support of Def.'s Continental Airlines Inc.'s Motion for Summ. J., ex. E, Contract of Carriage). Plaintiffs' emotional distress indisputably resulted from internal reactions.
Plaintiffs were familiar with air travel, mentioning their "long history" with Continental in particular in a letter to the airline. (See "Airport Experience" Letter, in Certification of Carolyn Geraci Frome In Support of Def.'s Motion for Summ. J., ex. E.)
Even if plaintiff could show that an accident occurred, the second pre-condition of the Eastern Airlines test, that a bodily injury occur, cannot be met. In Eastern Airlines v. Floyd, the plaintiffs sued the airline for emotional distress stemming from the pilot announcing that he was going to crash land the plane in the Atlantic Ocean. Floyd, 499 U.S. at 532. After the pilot managed to restart the plane's engine, the plane did not crash, and landed safely. Id. The Court held that "Article 17 does not allow recovery for purely mental injuries" and that an air carrier can only be held liable under the Warsaw Convention when there has been "death, physical injury, or physical manifestation of injury." Id. at 534, 552. Plaintiffs here have suffered no physical injury, nor any physical manifestation of an injury to accompany their emotional distress. The only physical pain even tangentially mentioned by plaintiffs is Eran Sobol's knee pain, yet he makes no allegation that his knee pain was caused by the airline; in fact he was recuperating from a prior knee surgery at the time of the flight. In other words, no injury occurred on the plane. Furthermore plaintiffs state in their affidavits that they are not seeking any medical treatment for this incident. (See Pls.' Answers to Interr. in Certification of Carolyn Geraci Frome In Support of Def.'s Motion for Summ. J., ex. E, at 5.) While an airline may be held liable for mental injuries, those injuries must be caused by bodily injury, which is not the case here. See Erhlich v. American Airlines, Inc., 360 F. 3d 366, 400 (2d Cir. 2004).
Because plaintiff's emotional distress claim does not amount to (i) an accident, (ii) resulting in bodily injury, and because the Warsaw Convention leaves plaintiffs with no other remedy for this claim under state law, defendant is granted summary judgment as to the emotional distress portions of plaintiffs' complaint.
Moving to the remaining claims for breach of contract, unjust enrichment, conversion, and punitive damages, the Court finds that these claims do not survive summary judgment either, as they are preempted by the Warsaw Convention.
At the outset, the claim for punitive damages must be dismissed as Article 29 of the Montreal Convention states that "punitive damages . . . shall not be recoverable."
Article 24 of the Montreal Convention, amending the Warsaw Convention, states that "in the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention." The Supreme Court in Tseng found that this "precludes passengers from bringing actions under local law when they cannot establish air carrier liability under the treaty." 525 U.S. at 175. Beyond the provision for liability attributable to accidents (Article 17, supra), the Conventions contain provisions attaching liability when there is damage to checked luggage resulting in economic loss (Article 18), or economic loss occasioned by delay in transportation (Article 19). There is no provision dealing directly with the downgrading of a ticket, and what liability, if any, should attach. Because the Conventions do not provide for carrier liability here on the claims for breach of contract, conversion, and unjust enrichment, the claims are barred. See Tseng 525 U.S. at 176; see also Paradis, 348 F. Supp. 2d at 111 (interpreting Tseng to preempt all state law claims against an airline for injury "even though the circumstances do not satisfy the Convention's conditions for imposing liability.").
Plaintiffs in this case were downgraded on their flight, they were not "bumped" off the flight entirely, as they assert. (See Eran Sobol's Affidavit in Opposition to Motion for Summ. J.) Bumping from a flight can be described as complete non-performance of a contract instead of mere delay, because a passenger who is bumped from a flight is not allowed to fly at all. See Weiss v. El Al Israel Airlines, Ltd., 433 F. Supp. 2d 361, 369 (S.D.N.Y. 2006). In such a case some courts have found that the Montreal Convention does not apply. Id. This is not the case here, as plaintiffs were merely downgraded from first class to coach, and were permitted to fly on the exact same flights they had contracted for with defendant.
Even if the Warsaw Convention did not preempt the claim here, the plaintiffs' claims are still without merit, as they were more than fully compensated for the difference in service they received when they were downgraded from first class to coach. Defendant's Contract of Carriage states that:
A passenger denied boarding involuntarily from an Oversold flight shall not be eligible for denied boarding compensation if:
. . . .
(iii) The passenger is offered accommodations or is seated in a section of the aircraft other than that specified in his/her ticket at no extra charge. Provided, if a Passenger is seated in a section for which a lower fare applies, the Passenger will be entitled to a refund applicable to the difference in fares.
Certification of Carolyn Geraci Frome in Support of Def.'s Motion for Summ. J., ex. E, Contract of Carriage Rule 25(A)(4)(b)(iii). Plaintiffs were seated in a section other than the one specified on their ticket (coach), and due to the lower fare, were given a refund to reflect the lower fare. (See Certification of Carolyn Geraci Frome In Support of Def.'s Motion for Summ. J., ex. E, Letter to Mr. Piken from Def.) Defendant also gave plaintiffs 8,000 miles, $300 in travel certificates, and a free first class upgrade for a later flight of plaintiffs' choosing. Id.
CONCLUSION
Because the plaintiff's claims are barred by the Warsaw Convention, defendant's motion for summary judgment is granted, and the complaint is dismissed, with prejudice.
SO ORDERED.