USA: race discrimination claim preempted by Warsaw Convention

Michael Wukoschitz's picture
The plaintiff, a Virgin Islands citizen purchased a ticket for a Liat airline  flight from Tortola, British Virgin Islands, to Antigua, scheduled to depart on July 28, 2002. On the day of departure, he checked in on time, and obtained a boarding pass and seat assignment. Due to overbooking, Liat could not accommodate all ticketed passengers on the flight to Antigua and decided to reschedule the flights of travelers whose final destination was Antigua because it would be more difficult to reschedule itineraries of passengers who had connecting flights in Antigua.When the plane arrived, all of the waiting passengers, including the plaintiff, pushed past the boarding gate staff and boarded the plane. The seat assigned to the plaintiff was occupied and he remained standing because no other seats were vacant. When the plaintiff refused to leave the plane, a police officer was called to escort him off. When the plaintiff heard the airplane closing its door, he attempted to run back onto the plane. The officer prevented him from re-boarding by placing him in handcuffs and taking him to an airport holding cell where he was detained for ten to fifteen minutes before being released without charges.

On December 11, 2002, the plaintiff filed an action against Liat in the District Court of the Virgin Islands , asserting claims of discrimination6, defamation, and intentional or negligent infliction of emotional distress. Liat filed a motion for summary judgment. In his opposition to Liat’s summary judgment motion, the plaintiff only pursued the discrimination claim. The court granted Liat’s motion:

First, the plaintiff had presented no evidence to show he was discriminated against by Liat or its employees. Liat rather applied neutral selection criteria to remove the passengers whose flights could most easily be rescheduled. Second, and more importantly, even if the plaintiff had presented any evidence of discrimination, there was no legal basis by which he could recover in this Court for discrimination suffered in another country by agents of a foreign airline as recovery for a personal injury suffered on board an aircraft or in the course of embarking or disembarking in foreign territory was governed exclusively by the Montreal Convention and its predecessor, the Warsaw Convention.

Referring King v. Am. Airlines, Waters v. Port Auth and other judgements, the court pointed out that every court which had considered whether discrimination claims are preempted by the Warsaw Convention, had held in the affirmative. Even if the plaintiff’s complaint stated a cause of action under the Warsaw Convention, it would still fail because he couldn’t show the discrimination he claims constituted an “accident” or that he suffered “bodily injury” as a result of such accident. Neither the fact that the plaintiff’s seat was not available to him nor that he was bumped from the flight would qualify as “accident”.

Case:  Sewer v. LIAT (1974) Ltd. (D. Virgin Islands Feb. 16, 2011); full memorandum available here>> .

 

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