USA: Appelate court confirms limitation of liability clauses in airline's "Conditions of Carriage"
On September 26, 2008, appellants purchased two round-trip airline tickets from American Airline’s website. The y received an “E-Ticket Confirmation” which in the bottom line of the message stated: “A summary of Terms and Conditions of travel is available by selecting the Conditions of Carriage button below.” The referenced Conditions of Carriage clearly state that the ticket and the Conditions of Carriage “constitute the contract.”
On December 21, 2008, after appellants arrived at Reagan National Airport for flight 1219, they were informed that the flight was delayed. Concerned that this delay would cause them to miss their connecting flight, appellants requested a refund or seats on another flight. However, when AA represented that, despite the delay, it would provide appellants with the connecting flight from Miami to Key West, they agreed to board the delayed flight.
When flight 1219 arrived at Miami International Airport, the appellants were instructed that they had fifteen minutes to traverse the airport to arrive at the departure point of their connecting flight. They ran through the airport where construction was ongoing, and they inhaled debris. When appellants arrived at the gate, they were denied entry to the flight because they did not arrive thirty minutes prior to the scheduled flight time. AA provided appellants with no substitute flight that night but paid for a hotel room and provided them with a stipend for dinner and breakfast. On December 22, 2008, appellants boarded flight 4833 from Miami and arrived in Key West later that day.
Appellants filed a five count complaint in the Circuit Court for Howard County for:
Negligent Misrepresentation–Booking,
Intentional Misrepresentation–Booking,
Negligent Misrepresentation–Airport Departure,
Intentional Misrepresentation–Airport Departure , and
Intentional Misrepresentation–Miami International Airport Departure.
The complaint sought USD 10,000 in compensatory damages and USD 10,000 in punitive damages for each plaintiff. Upon AA's motion, the court granted a summary judgement reasoning that the Conditions of Carriage precluded appellee’s liability for delays and/or missed connections, appellants had not provided any specific facts or shown that they suffered any damageas a natural and proximate consequence of AA's actions, and the Airline Deregulation Act, 49 U.S.C. § 40101 et seq. (the “ADA”), preempted the enforcement of Maryland tort law in this context.
The appelate court held that the ADA and regulations authorized by it permitted AA to incorporate by reference the Conditions of Carriage to the “E-Ticket Confirmation” email and that they were part of the contract between appellants and AA. Pursuant to these Condtioins of carriage "no agent, employee or representative of American has authority to alter, modify or waive anyprovision of the Conditions of Carriage unless authorized in writing by a corporate officer of American." Even if an agent’s statement could be considered an oral modification of the Conditions of Carriage, such a modification would be void under thisnon-modification clause. The Conditions of Carriage also stated: “American is not responsible for or liable for failure to makeconnections, or to operate any flight according to schedule, or for a change to the schedule of any flight. Under no circumstances shall American be liable for any special, incidental or consequential damages arising from the foregoing.” and that “times shown in timetables or elsewhere are not guaranteed and form no part of this contract”.
The court concluded that as there was no genuine disputes of material fact, AA was entitled to summary judgment as a matter of law.
Case: Lavine v. American Airlines, Inc. (Md. Special App. Dec. 1, 2011); find full opinion here>>.
Canada: body height is not a disability
Malcolm Johnson filed an application with the Canadian Transportation Agency (CTA) against Air Canada with respect to additional fees charged for economy class seats that afford extra leg room. Mr. Johnson submitted that, due to his height, he could not sit in a “regular seat” without endangering his health due to restricted circulation in his legs from cramped seating.
Mr. Johnson requested that Air Canada eliminate the additional fees charged to persons who, due to their height, need economy class seats that afford extra leg room. In addition, Mr. Johnson asked that Air Canada reimburse him “for all previous flights where [he had to pay] for extra leg room seating”.
The CTA held that Mr. Johnson did not provide evidence to demonstrate either a loss or abnormality in body structure or physiological function associated with his height. Thus CTA found that Mr. Johnson had not met his evidentiary burden of demonstrating the existence of an impairment, which was a pre-requisite to a positive finding of disability.
Full text of CTA Decision No.2-AT-A-2012 of Jan. 3, 2012 in case Malcolm Johnson v. Air Canada available here>>.
USA: DOT fines Spirit Airlines over handling of disability complaints and Finnair for violating price advertising rules
The U.S. Department of Transportation (DOT) fined Spirit Airlines USD 100,000 for failing to appropriately record and respond to complaints about the carrier’s treatment of passengers with disabilities, violating DOT’s rules implementing the Air Carrier Access Act which prohibits discrimination in air travel on the basis of disability. Under DOT’s rules, carriers must sort disability-related complaints into categories based on the type of disability and nature of the complaint, and submit an annual report to the Department on disability complaints received the previous year. Each issue raised in a complaint must be recorded separately to account for the total number of complaints a carrier receives. The Department compiles carrier reports, publishes them on the Internet for consumers to compare, and submits them as required by Congress. In addition, if an airline receives a written complaint alleging a violation of the Department’s disability rules, the carrier must provide a written response within 30 days that specifically discusses the complaint, gives the carrier’s view of whether a violation occurred, and states that the complaint may be referred to DOT for an investigation.
However, a review of disability-related complaints received by Spirit in calendar year 2009 showed that Spirit violated the Department’s rules by failing to adequately categorize and account for all the disability-related issues that were raised, leading to an undercounting of the actual number of complaints in the carrier’s annual report to DOT. In addition, Spirit failed to provide adequate responses to a vast majority of the disability-related complaints it received in 2009 and 2010.
In other matters, the DOT assessed a civil penalty of USD 35,000 against Finnair for violating federal aviation laws and the Department’s rules prohibiting deceptive price advertising in air travel. Finnair’s website violated DOT rules requiring any advertising that includes a price for air transportation to state the full price to be paid by the consumer, including all carrier-imposed surcharges as Finnair displayed three fare advertisements on its website that made no mention of additional taxes and fees that applied to these fares. Instead, once consumers clicked on the advertisements, they were taken to a page on the carrier’s website where taxes and fees were displayed in the fine print at the bottom of the page. In one of the three advertisements, consumers could not see the fine print unless they happened to scroll to the bottom of the page.
Source: press releases DOT 14-12 and DOT 16-12 of Jan. 27, 2012
The related consent orders are available at www.regulations.gov, docket DOT-OST-2012-0002.
USA: Costa Concordia victims sue for USD 460 milion in Florida
Attorneys for six passengers of the Costa Concordia reportedly filed a law suit in Miami’s federal court requesting USD 450 million in punitive damages and USD 10 million in compensatory damages. The complaint says plaintiffs were “in terror of catastrophic injury, death, drowning, having been placed in a situation where common sense said the vessel was sinking but the orders from the crew were to return to their cabins.”
However, legal experts question whether any lawsuits filed in the U.S. will succeed because under the terms of the cruise contract signed by passengers, all lawsuits seeking damages must be filed in Genova, Italy, where Costa is based.
Source: Travel Pulse; find article here>>.
USA: New York law firms file class action against Costa
As reported by "Travel Weekly", New York-based personal-injury law firm Proner and Proner said it joined forces with Codacons, the Italian consumer-protection organization, in filing a class action against Costa Cruises. A second New York law firm, Napoli Bern Ripka Shkolnik, also will represent passengers in the class action.
Proner said that the suit will seek at least USD 160,000 for each passenger who was aboard the ship at the time of the Jan. 13 disaster near the Italian island of Giglio.
Source: Travel Weekly; find article here>>.
Canada: change in airline pet policies ordered by CTA
Upon complaints by three passengers who all suffer from severe cat allergies, the Canadian Transportation Agency (CTA) has ruled that Air Canada, Jazz and WestJet need to amend their policies with respect to the carriage of cats as carry-on baggage in the aircraft cabin as to include either:
a ban on cats carried as pets in the aircraft cabin in which a person with a disabling cat allergy is travelling; or
the following measures:
air circulation/ventilation systems using HEPA filters or which provide 100 percent unrecirculated fresh air; and,
a seating separation which is confirmed prior to boarding the flight and which provides a minimum of five rows between persons with a disability as a result of their allergy to cats and cats carried as pets in the cabin.
CTA Decision No. 430-AT-A-2011 of Dec. 15, 2011 available here>>.
USA: deplaned passenger's complaint fails to state a viable cause of action under the Montreal Convention
The plaintiff and her daughter boarded the aircraft for a Continental flight from Newark to Cancun, Mexico. After a dsipute with the flight attendants over her seating and and while waiting in the forward galley, the plaintiff began talking on her cell phone. When a flight attendant told her to end the call, she replied that “the pilot didn’t announce not to be on your phone and I’m talking to my Mom” and continued her conversation. The flight attendant then told the plaintiff to stop talking on her phone or else exit the plane. Nevertheless, she continued speaking on the phone for another six or seven minutes. After some resistance by the plaintiff, and after an airline employee allegedly threw some of her carry-on items from the aircraft onto the jetway, she deplaned.
Continental rebooked the plaintiff and her daughter on a later flight, and they arrived in Cancun several hours later than originally scheduled.
The plaintiff filed a lawsuit against Continental in state court, alleging claims for intentional infliction of emotional distress, negligent infliction of emotional distress and breach of contract. The airline removed the case to federal court which granted a motion for summary judgment on the grounds that the Montreal Convention exclusively governed the passenger’s claims and that she had failed to state a viable claim under the Convention. The court found that, although the passenger had complained of “physical manifestations of emotional and mental anguish” in her complaint, she had admitted during her deposition that she had, in fact, not sustained any physical injury as a result of the incident at issue.
Case Rogers v. Continental Airlines (D. N.J. Sept. 21, 2011); find full opinion here>>.
USA: DOT fines AirTran for deceptive price advertising
The U.S. Department of Transportation (DOT) fined AirTran Airways USD 60,000 for violating federal aviation laws and the Department’s rules prohibiting deceptive price advertising in air travel.
For a period of time in the fall of 2011, AirTran displayed an advertisement on a number of websites advertising $59 one-way fares. The advertisement noted that additional taxes, fees and exclusions would apply, but with no information on the type or amount of taxes or fees. A consumer clicking on the advertisement was taken to a page on AirTran’s website where a list of routes and prices were displayed. Consumers were not provided details about the taxes and fees until they scrolled to the bottom of the page where the information appeared in fine print.
Under DOT’s recently adopted consumer rule that enhances protections for air travelers, carriers will be required, among other things, to include all government taxes and fees in every advertised fare beginning Jan. 26, 2012. The consent order is available on the Internet at www.regulations.gov, docket DOT-OST-2012-0002.
Source: DOT press release 01-12 of Jan 4, 2012
USA: man who helped to stop "underwear bomber" sues for USD 10 million
In a lawsuit filed in the U.S. District Court for the Southern District of New York on Dec. 21, Theophilus Maranga says he "risked his life" by jumping on the would-be bomber Umar Farouk Abdulmutallab, a Nigerian man who attempted to blow up a Detroit-bound flight from Amsterdam with a bomb stashed in his underwear. The lawsuit says Maranga lost a tooth and suffered injuries to his ribs, permanent numbness in his hands and a pain in his neck that hampers his movements. It accuses Delta Air Lines and Air France-KLM of negligence for "allowing a bomber to board their aircraft with an explosive device." The lawsuit also names Abdulmutallab, who has confessed to attempting to bomb the plane, as a defendant.
Case: Maranga v. Abdulmutallab et al, 1:2011cv09397 find further case details here>>.
USA: District Court upholds fine for traveler to Cuba who did not answer OFAC queries
Plaintiff Zachary Sanders filed a suit to review final agency action by the Office of Foreign Assets Control (OFAC). He claimed violations of his constitutional rights under the Fifth and Eighth Amendments (in particular: the right not to incriminate himself and the right not to fined in an excessive way) arising from a USD 9.000 fine OFAC imposed on him for failure to comply with Cuban trade embargo regulations. He also argued that imposition of the penalty was arbitrary and capricious and, therefore, even if otherwise constitutional, should be set aside pursuant to the Administrative Procedures Act.
The U.S. District Court for the Easter District of New York denied the plaintiffs motion for summary judgment and granted the defendants' cross-motion for summary judgment. The court held that question-by-question invocation of the Fifths Amendment privilege would not have identified Sanders as a random member of the general public involved in possible criminal activity. Sanders had been lawfully entitled to confound OFAC's investigation of him, but only to the extent that he was entitled to withhold relevant information that would incriminate him. He could not, however, protect himself by silently ignoring the demand for information. The court also rejected the plaintiff's other arguments.
Case: Sanders v. Szubin, U.S. district Court for the Eastern District of New York, 09-cv-3052 (ENV)
Find full text of Memorandum & Order here>>.
