Flight delay compensation: Which law applies – Montreal Convention or EU 261?

Flight delay compensation: Which law applies – Montreal Convention or EU 261?



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In this week’s article, we examine the case of Dochak v. Polskie Linie Lotnicze LOT S.A., 2016 WL 3027896 (N.D. Ill. 2016) wherein “a group of individuals who purchased airline tickets from (LOT) and arrived at their destination later than scheduled due to delayed or cancelled flights. They filed a (class action) Complaint…that seek(s) relief for (inter alia): (1) delay or cancellation of international airfare in violation of Article 19 (of the Montreal Convention); (2) breach of contract for violations of Articles 19 and 22 of the Montreal Convention; (3) breach of contract for violations of Article 6 of (EU) Regulation 261 (EU 261); (4) breach of contract for violations of Article 14 of EU 261; (5) violations of Article 19 of the Montreal Convention”. LOT’s motion to dismiss is granted “to the extent they seek redress for breach of contract due to violations of EU 261″ and denied as to the individual claims “brought under the Montreal Convention”. For further discussion of flight delay compensation and which law applies [Domestic U.S.; EU 261; Montreal Convention] see Dickerson, Flight delays: stop making the passengers pay, eturbonews.com (3/20/2014)].

Terror Targets Update

London, England

In Smith & Chan, Ariana Grande Manchester Concert Ends in Explosion, Panic and Death, nytimes.com (5/22/2017) it was noted that “An explosion that appeared to be a suicide bombing killed at least 22 people on Monday night and wounded 59 others at an Ariana Grande concert filled with adoring adolescent fans…Traumatized concertgoers, including children separated from parents, screamed and fled what appeared to be the deadliest episode of terrorism in Britain since the 2005 London transit bombings”.

In Bilefsky & Magra, Manchester Bombing Victims Include at Least 7 Parents, nytimes.com (5/24/2017) it was noted that “Lots of the parents had come to pick up their children and were waiting just outside the arena-exactly the spot the bomber hit”.

In Bennhold, Castle & Walsh, ‘Forgive Me’: Manchester Bomber’s Tangled Path of Conflict and Rebellion, nytimes.com (5/27/2017) it was noted that “Salman Abedi was wearing a red vest, his suicide bomb hidden in a small backpack, when he phoned his younger brother in Libya and asked him to put his mother on the line…’How are you doing, Mom? Please forgive me for anything I did wrong’ he said and hung up”.

Portland, Oregon

In Haag & Fortin, Two Killed in Portland While Trying to Stop Anti-Muslim Rant, Police Say, nytimes.com (5/27/2017) it was noted that “The Oregon man accused of screaming anti-muslin insults at two women, and then fatally stabbing two men and wounding a third as they tried to intervene of Friday, had a history of making extremist remarks, according to the police and civil rights advocacy organizations”.

Cairo, Egypt

In Walsh & Youseff, Gunmen in Egypt Force Coptic Christian Pilgrims From Buses and Kill 28, nytimes.com (5/26/2017) it was noted that “Dressed in military fatigues, the gunmen waved down the bus filled with Christian pilgrims as it wended its way down a dusty side-road in the desert of western Egypt, headed toward a monastery. Claiming to be security officers, the gunmen ordered passengers to get out. They separated the men from the women and children…The told the men to recite the shahada, the Islamic declaration of faith. When the men refused, the gunmen opened fire. At least 28 people were killed, several with a single shot to the head”.

British Airways Meltdown

In Weiss & Penty, Bloomberg, British Airways Shifts to Recovery Mode After Weekend Fiasco, sn.com (5/29/2017) it was noted that “British Airways’ epic meltdown over a busy holiday weekend further fanned public outrage of an industry infamous for its focus on cost cuts over customer service. Leaving the U.K. carrier scrambling to explain how a local computer outage could lead to thousands of stranded passengers…With nearly 600 flights cancelled and luggage unable to be dispersed, images and horror stories quickly coursed through social media. Damages for rebooking and compensating customers is estimated at about 100 million euros ($112 million) or about 3 percent of the annual operating profit of parent IAG SA”.

Air Travel Discomfort Starts On Wall Street

In Schwartz, Route to Air Travel Discomfort Starts on Wall Street, nytimes.com (5/28/2017) it was noted that “Relentless pressure on corporate America is creating an increasingly Dickensian experience for many consumers as companies focus on maximizing profit. And nowhere is the trend as stark as in the airline industry, where service is delivered in an aluminum tube packed with up to four different classes, cheek by jowl, 35,000 feet in the air”.

Can Airlines Prohibit Photos?

In Elliott, Flier beware: Airlines aren’t clear about their photography policies, The Washington Post (5/7/2015) it was noted that “American Airlines doesn’t publish any prohibitions against taking photos of its aircraft. But late last year it updated its internal policies to allow employees at the airport, including ticket counters, gates, cargo, baggage and onboard, to stop passengers from taking pictures. ‘The policy is in place to protect employees and customers’ says Andrea Huguely, an American Airlines spokeswoman… It turns out JetBlue doesn’t have a published photography policy either. “Our crew members use their professional judgment in evaluating the appropriate use of photography or videography onboard, especially when it involves the privacy of other customers and the safe and secure operation of the airline’ says Morgan Johnston, an airline spokesman…When pressed, most airlines say that their policies allow cameras to be used onboard to record a ‘personal event’ but that snapshots of the crew, other passengers or any security procedure are off-limits”.

In Lo, Can Taking a Picture Get You in Trouble?, cntraveler.com (8/9/2016) it was noted that “Some airlines, American included, do not publish their photo and video policy online. We reached out to the airline’s media relations representatives, who sent an image of page 106 in this month’s American Way in-flight magazine. It includes a paragraph that reads:
Voice or audio recording or transmission while on an American aircraft. Unauthorized photography or video recording of airline personnel, other customers, aircraft equipment or procedures is prohibited’…Over on the United Airlines website, camera rules are listed on the Electronic Device Policies page: ‘The use of small cameras or mobile devices for photography and video is permitted on board, provided you keep the purpose of your photography and video to capturing personal events. Photographing or recorded other customers or airline personnel without their express consent is prohibited”. If the language sounds intentionally vague (‘personal events’) that’s probably because it is”.

New Ebola Outbreak?

In How severe is the latest Ebola outbreak in DR Congo?, travelwire.com (5/18/2017) it was noted that “It’s last outbreak in west Africa killed more than 11,000 people. Now Ebola appears to be back. But this time it is heading east to the Democratic Republic of Congo where health officials confirmed the outbreak after taking samples from victims in a remote northern village. They’re also trying to track down 125 people who may have been exposed”.

Cholera In Yemen

In Nearly 23,500 cholera cases, 242 deaths in Yemen in three weeks-WHO, travelwirenews.com (5/19/2017) it was noted that “The number of cases could be much higher as humanitarian workers cannot access some parts of the country…The UN health agency said that in the past day alone, 20 cholera deaths and 3,460 suspected cases had been registered in the country, where two-thirds of the population are on the brink of famine. ‘The speed of the resurgence of this cholera epidemic is unprecedented’”.

Teak Timber Poacher Caught

In Timber poacher caught, teak logs seized, travelwirenews.com (5/19/2017) it was noted that “Mae Hong Son-a man believed to be major timber poacher was arrested and many illegally-cut teak tree logs and processed planks seized at his home in Pang Ma Pha district…Forestry officials and police, supported by soldiers, raided the property in Na Pu Pom area following a tip-off it was being used to store poached teak. They found 37 teak tree logs and 42 processed teakwood planks”.

Stay Away From Chicago, Please

In Six killed in separate shootings in Chicago, travelwire.com (5/15/2017) it was noted that “At least six people have been killed and more than a dozen others injured in separate shootings across the US city of Chicago since Friday evening…The most recent fatal incident occurred on Sunday afternoon in the Engelwood neighborhood on the South Side in Chicago, a city where more than 1,100 people have been shot this year”.

Drone Jumping

In Jumping from drones is your newest extreme sport, travelwirenews.com (5/13/2017) it was noted that “Whattup, James Bond? Here’s a new, incredibly dangerous but totally on trend stunt idea for your next film: drone jumping. A drone company in Latvia has executed what it calls the ‘world’s first drone jump’. Aerones’s 28-propeller drone hoisted a man over 1,000 feet (and) deploying a parachute to set him down safely back of earth…it’s easy to see how this kind of drone-assisted sky diving could be used for stealthy military and spy missions in the future”.

India Not Safe

In Woman gang-raped, brutally murdered & mutilated in India, travelwirenews.com (5/15/2017) it was noted that “Horrific details have emerged about the gang-rape and murder of another young woman in India. The latest attack comes just a week after the Supreme Court upheld the death sentence of four men convicted of the notorious 2012 brutal Delhi gang-rape. The twenty-year old woman was gang-raped and murdered in the city of Rohtak in the northern Indian state of Haryana allegedly by her ‘jilted lover’ and his friends, reported the Hidustan Times, citing police”.

Philippine Tattoo, Anyone?

In Almendral, At 100 or So, She Keeps a Philippine Tattoo Tradition Alive, nytimes.com (5/15/2017) it was noted that “She wakes up every morning at dawn and mixes an ink out of pine soot and water. She threads a thorn from a bitter citrus tree into a reed, crouches on a three-in-high stool and, folded up like a cricket, hand-taps tattoos onto the backs, wrists and chests of people who come to see her from as far away as Mexico and Slovenia. The woman, Maria Fang-od Oggay, will finish 14 tattoos before lunch-not a bad day’s work for some said to be 100 years old. Moreover, she has single-handedly kept an ancient tradition alive and in the process transformed this remote mountaintop village into a mecca for tourists seeking adventure and a piece of history under their skin”.

Homes Away From Home

In Cole, Homes Away From Home, Consumer Reports (June 2017), it was noted “Airbnb, HomeAway and a handful of other home-sharing websites let travelers pay to stay in a home rather than a hotel. Fans say they made vacations more authentic and affordable. Do the rewards outweigh the risks?… Homestays-rooms, apartment or homes rented directly from the owner, typically for vacation accommodations-are certainly nothing new. But a handful of websites, including Airbnb (the largest, with more than 3 million global listings), HomeAway, VRBO and Flipkey, have made them easier than ever to find, vet and to book, creating a robust new home sharing marketplace providing alternatives to hotel accommodations. The sites have also created a new $100 billion economy, with millions of people worldwide listing their apartments, homes and extra rooms to generate income. ‘Airbnb tapped into a desire for something real and a little bit adventurous that wasn’t being met by the conventional hospitality landscape’ says Leigh Gallagher, author of the recently published book ‘The Airbnb Story’…a behind the scenes look at Airbnb’s rapid expansion”… 5 Ways to Increase the Odds of a Happy Homestay…1. Compare prices carefully…2. Read between the lines of the reviews…3. Choose a property that has many reviews…4. Leave nothing to chance…5. Negotiate a discount”.

Need A Transit System? Call Uber

In Smith, A Canadian Town Wanted a Transit System. It Hired Uber, nytimes.com (5/16/2017) it was noted that “Uber…has fought its way into resistant cities around the world, despite being hit with raw eggs and rush-hour roadblocks in Montreal and Toronto, fires in Paris and smashed windshields in Mexico City. But in Innisfil, a small yet sprawling Canadian town north of Toronto, the company has met a somewhat different reception. Town leaders have embraced the service as an alternative to costly public transportation, causing local taxi companies to worry about the effect on their business”.

Driverless Car Wars Update

In Issac, Lyft and Waymo Reach Deal to Collaborate on Self-Driving Cars, nytimes.com (5/14/2017) it was noted that “As the race to bring self-driving vehicles to the public intensifies, two of Silicon Valley’s most prominent players are teaming up. Waymo, the self-driving car unit that operates under Google’s parent company, has signed a deal with the ride-hailing start-up Lyft…The deal calls for the companies to work together to bring autonomous vehicle technology into the mainstream through pilot projects and product development efforts…The deal was confirmed by Lyft and WeMo…The partnership highlights the fluid nature of relationships in the self-driving-car-sector. From technology companies to automakers to firms that manufacture components, dozens of players are angling for a slice of an autonomous vehicle market that many believe will ultimately be a multibillion-dollar industry”.

Waymo Versus Uber

In Isaac, Uber Engineer Barred From Work on Key Self-Driving Technology, Judge Says, nytimes.com (5/15/2017) it was noted that Uber…sidestepped a full shutdown of its self-driving car efforts on Monday when a federal judge stopped short of issuing a temporary injunction against the program. But the court mandated that Anthony Levandowski, a star engineer leading the program, be prohibited from working on a critical component of autonomous vehicle technology for the duration of the litigation, a setback that could hamper Uber’s development efforts. The decision was in a case that has underlined the increasingly bitter fight between Uber and Waymo…The companies have been competing in the development of autonomous vehicles”.

In Isaac, How Uber and Waymo Ended Up Rivals in the Race for Driverless Cars, nytimes.com (5/17/2017) it was noted that “So Mr. Kalanick spent much of 2015 raiding Google’s engineering corps. To learn about the technology, he struck up a friendship with Anthony Levandowski, a top autonomous vehicle engineer at (Google)…The friendship developed into a partnership. Mr. Levandowski left Google last year to form Otto, a self-driving trucking start-up (which) Uber acquired months later for $700 million…That relationship has since set off a legal morass with Google’s self-driving vehicle business-now called Waymo-accusing Mr. Levandowski of creating Otto as a front to steal secrets from Google, then using the findings with Uber’s driverless cars”.

In Donahue, Alsip Asks For Criminal Probe In Waymo’s Case Against Uber, law360.com (5/12/2017) it was noted that “U.S. District Judge William Alsup asked federal prosecutors on Thursday to investigate accusations by Alphabet Inc. subsidiary Waymo that its self-driving car technology was stolen by Uber-an escalation of the ongoing civil trade secrets suit between the two tech giants. The judge offered little explanation for the move, saying only that ‘this case is referred to the United States Attorney for investigation of possible theft of trade secrets based on the evidentiary record supplied thus far”.

Travel Law Case Of The Week

In discussing the plaintiffs’ flight delay compensation claims the Court first addressed their breach of contract claim for violations of EU 261.

Incorporation By Reference

“LOT’s first argument for dismissing Plaintiffs’ claims for violations of EU 261 is that they are prohibited under Volodaskiy v. Delta Air Lines, Inc., 784 F. 3d 349 (7th Cir. 2015). The Seventh Circuit in Volodarskiy held that EU 261 is not judicially enforceable outside the courts of the European Union member states; however, that case does not address whether a party can bring a claim for breach (of) a contract alleging that the contract incorporated EU 261 into its provisions. Second, LOT contends that all (such) claims…should be dismissed because the Conditions of Contract did not incorporate EU 261. LOT claims that Paragraph 10.2 of the Conditions of Carriage, which the Complaint quotes and refers to EU 261, is insufficient evidence of intent to incorporate the entirety of EU 261 and rather was intended to provide Plaintiffs notice of their rights under EU 261 apart from the Conditions of Carriage”.

Illinois Law

“‘Under Illinois law. A document is incorporated by reference into the parties’ contract only if the parties intended its incorporation’…For starters, the Courts does not accept as true Plaintiffs’ allegation that the Conditions of Carriage incorporates Articles 6 and 7 of EU 261 because it is a legal conclusion and not a fact….Next, neither Paragraphs C 2.2 nor Article 16.3 mentions EU 261 and therefore do not incorporate it into the Conditions of Carriage…(In addition) Paragraph 10.2 does not state that it incorporates any Article of EU 261 into the Conditions of Carnage and does not promise to uphold EU 261 as part of the Conditions of Carriage…but instead explains that those rights are defined and subject to the rules of EU 261…(However) if the Conditions of Carriage incorporated EU 261 into its provisions, EU 261 would be applicable to Plaintiffs’ claims”.

Montreal Convention Claims

“Count One seeks relief under Article 19 of the Montreal Convention for ‘actual, out of-pocket, Per Diem and general damages’ and ‘general and special damages’ for delayed or cancelled airfare…Count two seeks to recover ‘compensable actual, general, special, incidental damages’ under Article 19 for failure to pay compensation for delayed flights…Count 6 request damages for ‘loss of her wages due to being one day late for her work as well as suffered frustration of her European journey for pre-planned [sic] vacation…’ in addition to ‘travel cancellation penalties, loss of benefit of her travel bargain, inconvenience, physical discomfort”.

Article 19

“Although the Seventh Circuit has not considered the question, Courts in other circuits have held that Article 19 (of the Montreal Convention) permits payment of economic damages from a delayed flight but disallows compensation for emotional loss, physical injury or inconvenience (citing Campbell v. Air Jamaica, Ltd., 760 F. 3d 1165, 1170-71 (11th Cir. 2014) ($150 charge fee for a replacement flight is an economic injury); Lee v. American Airlines, Inc., 355 F. 3d 386, 387 (5th Cir. 2004) (inconvenience damages not easily quantifiable and are not real economic loss compensable under Article 19); Mizyed v. Delta Airlines, Inc., 2012 WL 1672810 (E.D. La. 2012)(mental injury damages not recoverable under Article 19))…Viewing the Complaint in the light most favorable to the Plaintiffs, it is plausible that they seek economic damages and not only damages for inconvenience or psychological or physical injuries…such as the cost of food, a hotel room and loss of wages, all of which constitute economic compensatory damages that can be recovered under Article 29″.

Pre-Departure Cancellations

“LOT contends (the Article 19 claims should be dismissed) because the Montreal Convention does not apply to pre-departure cancellations (citing Wolgel v. Mexicana Airlines, 821 F. 2d 442 (7th Cir. 1987))…First Wolgel is inapposite because that case held that Article 19 of the Warsaw Convention-which mirrors Article 19 of the Montreal Convention-does not extend to claims of discriminatory bumping, whereas this case pertains to delays, not bumping. Second, nothing in Article 19 of the Montreal Convention suggests that it only applies to delays that occur after a plaintiff’s initial flight takes off”.

Conclusion

The Dochak case is helpful to airline passengers who suffer economic injuries which are quantifiable including pre-departure damages including the cost of food, hotel rooms and loss of wages all arising from delays or cancellations. However, it is clear that EU 261 must be incorporated by reference into the contract of carriage and once it is the EU 261 flight delay compensation rule will be applied.

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here.

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