Badar v. Swissport U.S.
| Decision Date | 17 November 2022 |
| Docket Number | 21-1669 |
| Parties | Chaudhry Badar, Alia Davariar, Muhammad Shafqat, Balqees Badar, Bilal Badar, Plaintiffs-Appellants, v. Swissport USA, Inc., Pakistan International Airlines, Defendants-Cross Defendants-Appellees, v. The Port Authority of New York and New Jersey, Defendant-Cross Claimant. |
| Court | U.S. Court of Appeals — Second Circuit |
Argued: September 29, 2022
Pakistan International Airlines ("PIA") failed to transport the body of Nauman Badar to Pakistan for burial due to a miscommunication by employees of Swissport USA, PIA's cargo loading agent. Nauman Badar's family members sued PIA and Swissport in New York state court under state law; PIA removed the action to the United States District Court for the Eastern District of New York (Irizarry, J.). Following cross-motions for summary judgment and an evidentiary hearing, the district court held that plaintiffs' claims are preempted by the Montreal Convention and dismissed the suit. On appeal, plaintiffs argue that the Montreal Convention, which preempts state-law claims arising from delayed cargo, does not apply because human remains are not "cargo" for purposes of the Montreal Convention and because their particular claims are not for "delay." We AFFIRM.
ANNETTE G. HASAPIDIS, Hasapidis Law Offices, Ridgefield, CT (Jordan Merson, Merson Law, PLLC, New York, NY, on the brief), for Plaintiffs-Appellants.
JOHN MAGGIO, Condon & Forsyth LLP, New York, NY, for Defendant-Appellee Pakistan International Airlines.
GARTH AUBERT (Thomas Pantino,_on the brief), Fitzpatrick & Hunt, Pagano, Aubert, LLP, New York, NY, for Defendant-Appellee Swissport USA, Inc.
Before: JACOBS, BIANCO, and MENASHI, Circuit Judges.
When Nauman Badar died, his family arranged for Pakistan International Airlines ("PIA") to transport his body to Pakistan for burial in his ancestral home; but the body never made it onto the plane. After his remains were located, Nauman was buried in Maryland. The plaintiffs in this suit--Nauman's parents, brothers, and sister--sued PIA and its cargo loader, swissport USA, Inc., for damages under state law. The district court dismissed on the ground of preemption by federal treaty: the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45, 2242 U.N.T.S 309 (the "Montreal Convention").
The Montreal Convention sets forth a comprehensive liability regime governing "international carriage of persons, baggage or cargo performed by aircraft." Montreal Convention art. 1(1). The Convention preempts other civil claims within its scope. Id. art. 29. Among the injuries covered by the Convention is "damage occasioned by delay in the carriage by air of . . . cargo." Id. art. 19. On appeal, plaintiffs argue that the Montreal Convention does not apply because human remains are not "cargo" and because their claims arise from complete non-performance rather than "delay"--and that the district court erred in granting summary judgment after a limited (and flawed) evidentiary hearing.
We affirm the judgment. Human remains are cargo for purposes of the Montreal Convention; and on the facts found by the district court, the claims arise from delay. The claims are therefore preempted by the Montreal Convention.
Beginning in 1933, the liability of international air carriers has been governed by international agreement rather than the local law of individual nations. Over the years, the comprehensive system of liability created by the Warsaw Convention (the Convention for the Unification of Certain Rules Relating to International Transportation by Air[1]) fragmented into a "hodgepodge of supplementary amendments and intercarrier agreements." Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 371 n.4 (2d Cir. 2004) (citation omitted). The result was a "patchwork of liability regimes around the world." Letter of Submittal, S. Treaty Doc. No. 106-45, 1999 WL 33292734, at *6 ("Letter of Submittal").
In 1999, the International Civil Aviation Organization convened a conference in Montreal to fix the Warsaw Convention and "creat[e] a modernized uniform liability regime for international air transportation." Id.; accord Cohen v. Am. Airlines, Inc., 13 F.4th 240, 244 (2d Cir. 2021). The resulting "Montreal Convention," which entered into force on November 4, 2003, e.g., Ehrlich, 360 F.3d at 372, hews closely to the text of its predecessor; accordingly, its "provisions may be analyzed in accordance with case law arising from substantively similar provisions of its predecessor, the Warsaw Convention." Cohen, 13 F.4th at 245.
The Montreal Convention "applies to all international carriage of persons, baggage or cargo performed by aircraft," Montreal Convention art. 1(1), and provides for passengers and shippers to recover for certain injuries, id. arts. 1719. As relevant here, the Convention provides that "[t]he carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo," id. art. 19, but caps recovery for such damage to cargo at a specified "sum of . . . Special Drawing Rights per kilogramme,"[2] id. art. 22(3). The Convention does not, however, limit or preempt claims for total non-performance of a contract of carriage: a bald refusal to transport or a repudiation of the carriage contract is not "delay" for purposes of the Convention. See Wolgel v. Mexicana Airlines, 821 F.2d 442, 444 (7th Cir. 1987); In re Nigeria Charter Flights Cont. Litig., 520 F.Supp.2d 447, 453 (E.D.N.Y. 2007); Paradis v. Ghana Airways Ltd., 348 F.Supp.2d 106, 113-14 (S.D.N.Y. 2004), aff'd, 194 Fed.Appx. 5 (2d Cir. 2006).
To achieve a uniform liability regime, the Montreal Convention, like the Warsaw Convention before it, preempts "all state law claims that fall within [its] scope." See Shah v. Pan Am. World Servs., Inc., 148 F.3d 84, 97-98 (2d Cir. 1998) (cleaned up); see also Cohen, 13 F.4th at 245 (). The self-executing Montreal Convention creates a federal cause of action for claims within its scope. See Baah v. Virgin Atl. Airways Ltd., 473 F.Supp.2d 591, 593 (S.D.N.Y. 2007); see also S. Exec. Rep. No. 108-8, at 3 (2003) ("The Montreal Convention, like the Warsaw Convention, will provide the basis for a private right of action in U.S. courts in matters covered by the Convention."). That federal cause of action is the exclusive means for pursuing such claims. "Where an action for damages falls within one of the Montreal Convention's three damage provisions, 'the Convention provides the sole cause of action under which a claimant may seek redress for his injuries.'" Seagate Logistics, Inc. v. Angel Kiss, Inc., 699 F.Supp.2d 499, 505 (E.D.N.Y. 2010) (quoting Weiss v. El Al Isr. Airlines, Ltd., 433 F.Supp.2d 361, 365 (S.D.N.Y. 2006)).
Nauman Badar died suddenly in his apartment in Astoria, Queens. J.A 341-42. His family decided to bury his remains in Pakistan, their ancestral home. E.g., J.A. 224-25, 314, 348-49, 1218. Accordingly, Nauman's brother Bilal Badar arranged for a funeral home, Muslim Funeral Services, to prepare the body for burial and arrange carriage to Pakistan. J.A. 344-46. In accordance with Islamic practice, the funeral home used no chemicals to preserve the body, which necessitated burial as fast as possible. See J.A. 223-24, 279. Nauman died on October 25, 2017; in consultation with Bilal, the funeral home arranged for transport of the remains aboard Pakistan International Airlines Flight 712, a direct flight from New York to Lahore departing October 28, 2017. J.A. 224, 1219. Bilal purchased a ticket on the same flight. J.A. 1220.
On the day of departure, the funeral home delivered Nauman's body to JFK International Airport to be loaded onto Flight 712. J.A. 354. Bilal repeatedly sought and received confirmation from PIA employees that Nauman's body was on the plane. J.A. 1220-21. However, due to a miscommunication among Swissport's cargo loaders, J.A. 744, the pallet containing Nauman's body and the body of one other individual was not on board when the plane took off, e.g., J.A. 1260.
When Flight 712 landed in Lahore, Bilal met several relatives to claim the remains at PIA's Lahore cargo office. J.A. 363-64, 1224. There, the family learned that the body was not on the plane and that its whereabouts were unknown. J.A. 1224-25. For the next several hours, Bilal "called every single number [he] could find on the web" trying to discover what had happened to the remains, but he was unable to reach anyone at PIA in New York or to locate his brother's body. J.A. 1241; see also J.A. 369, 1225. Around dawn in Lahore the following day, a text message from the funeral home informed Bilal that Nauman's body had been located at JFK and that the funeral home had taken custody of the body and placed it in cold storage. J.A. 1227-28.
The family debated what to do next and decided to bury Nauman in the United States in order "[t]o get him to a final resting place as soon as possible." J.A. 378 (Bilal Dep.); see also J.A. 384. Bilal then booked seats for himself and his brother and father on the next flight to New York. Back in the United States, Bilal instructed the funeral home to transport Nauman's body to a cemetery near Bilal's Maryland home, and the three men conducted a burial ceremony there on November 1, 2017. J.A. 385-86, 1231.
This litigation began in October 2018: Nauman's brothers Bilal Badar and Muhammad Shafqat, his sister Alia Davariar, and his parents Chaudhry and Balqees Badar filed suit in New York state court against PIA, Swissport, and the Port Authority of New York and New Jersey. Notice of...
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