North America

Two cases, consoldiated on appeal, both involved personal injury claims by Canadian citizens arising from accidents they suffered during their holidays in Cuba. One of the defendants, Club Resorts Ltd., was the company that managed the two hotels where the accidents took place. Club Resorts argued that Ontario lacked jurisdiction over the actions, or in the alternative, that the doctrine of forum non conveniens should apply. The motion judges in both cases dismissed this argument and held that the Ontario courts had jurisdiction. The Ontario Court of Appeal upheld both decisions. The Supreme Court dismissed the appeals: applying the recognized presumptive connecting factors, the Ontario court had jurisdiction, and Club Resorts had failed to refute those presumptions. In the first case, the presumptive factor applied, whereby the litigation was connected to a contract entered into in Ontario. With respect to the second case, the presumptive factor was established on the basis that Club Resorts maintained an active commercial presence in Ontario. In both cases, the Supreme Court also declined to exercise its discretion under the doctrine of forum non conveniens, on the basis that considerations of fairness weighed in favour of the plaintiffs. Supreme Court Judgement Club Resorts Ltd. v Van Breda (2012 SCC 17) available here>>.

The inspector general of the U.S. Department of Homeland Security (DHS) reported that full-body X-ray scanning machines at airport security checkpoints use an "extremely low dose" of radiation which is safe for passengers. The report refers to a Johns Hopkins University assesment of 2010 which said that a passenger would have to be screened 47 times a day for a year to exceed yearly limits of radiation set by the American National Standards Institute. Source: USA today; finad article here>>.

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>>.

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.