Best v. Bwia West Indies Airways Ltd.

• Decision Date: 29 September 2008
• Docket Number: No. 06-CV-4589 (CBA).,06-CV-4589 (CBA).
• Citation: 581 F.Supp.2d 359
• Parties: Karen M. BEST and Daniel Best, Plaintiffs, v. BWIA WEST INDIES AIRWAYS LIMITED; and "John Doe" as the name of a fictitious person the identity of which is unknown at the present time, Defendants.
• Court: U.S. District Court — Eastern District of New York

581 F.Supp.2d 359

Karen M. BEST and Daniel Best, Plaintiffs, v. BWIA WEST INDIES AIRWAYS LIMITED; and "John Doe" as the name of a fictitious person the identity of which is unknown at the present time, Defendants.

No. 06-CV-4589 (CBA).

United States District Court, E.D. New York.

September 29, 2008.

Richard Adam, The Adam Law Office, P.C., New York, NY, for Plaintiffs.

John Maggio, Stephen J. Fearon (on the brief), Condon & Forsyth LLP, New York, NY, for Defendants.

MEMORANDUM & ORDER

AMON, District Judge:

Plaintiffs Karen and Daniel Best originally brought this action in New York State Supreme Court, Kings County, seeking recovery for alleged injuries suffered at Port of Spain, Trinidad, a stopover on Mrs. Best's trip from the United States to Grenada. Daniel Best adds a claim for loss of society, services, and consortium. Defendant BWIA West Indies Airways, Ltd. ("BWIA") removed the action to this Court, primarily pursuant to 28 U.S.C. § 1331, as arising under a treaty of the United States, the Convention for the Unification of Certain Rules Relating to International Carriage by Air, concluded at Montreal, Canada, May 28, 1999 (the "Convention" or "Montreal Convention"). Fact discovery has been conducted, and BWIA has moved for summary judgment.

I. Background

The following facts are undisputed unless otherwise noted. On August 6, 2004, Mrs. Best purchased round trip tickets for air transportation departing the next day from John F. Kennedy Airport in New York to Grenada, via Port of Spain, Trinidad. Although Mrs. Best booked her trip with BWIA, she was aware that her itinerary placed her on a BWIA flight from JFK to Port of Spain, and then on a flight with another carrier, LIAT, from Port of Spain to Grenada.

On August 7, 2004, Mrs. Best traveled on her BWIA flight to Port of Spain without incident and arrived at approximately 12:00 P.M. After what was apparently a planned layover, Mrs. Best attempted to check in for her 8:00 P.M. flight to Grenada, only to discover that it had been canceled. She was then placed on a subsequent LIAT flight, which was scheduled to depart for Grenada at 8:30 P.M. After rechecking her baggage, Mrs. Best boarded the flight, escorted by a LIAT employee, and sat in the seat LIAT had assigned her. Shortly thereafter, and after buckling her seat belt, an unidentified man came aboard and told Mrs. Best that she would need to exit the aircraft and that "they made a mistake." Mrs. Best apparently made further inquiry, and rather than provide her an answer, the man exited the aircraft without removing Mrs. Best.

A short time later, another man boarded the aircraft and insisted that Mrs. Best disembark immediately. BWIA claims that Mrs. Best now knows this man to have been Customs Officer Clarence Clark, but the Bests claim that, even today, Mrs. Best is unsure of Mr. Clark's official title. In any event, Mrs. Best did not disembark, saying she was tired, hungry, and needed a shower. After her refusal to comply, Officer Clark grabbed Mrs. Best and forcibly removed her from her seat. Mrs. Best was then pulled off the aircraft, down the portable staircase, and onto the tarmac, where she lay crying. Approximately six people surrounded her there, at least one of whom was a LIAT employee, Anita Telesford. Apparently, Ms. Telesford assisted Mrs. Best off the tarmac and back onto the aircraft, and she continued on her way. Neither party has offered a reason as to why Officer Clark removed Mrs. Best from the aircraft.

Plaintiffs argue that BWIA is liable under Article 39 of the Montreal Convention and principles of common law agency for injuries suffered on the LIAT leg of the flight. Defendant contends that BWIA is not liable under that provision. For the reasons that follow, the Court concludes that defendant is correct and grants its motion.

II. Discussion

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir.1999). The Court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue to be tried. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The court is required to view the evidence in the light most favorable to the nonmoving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Nevertheless, the non-moving party cannot rest "merely on allegations or denials" but must instead "set out specific facts showing a genuine issue for trial." Fed. R.Civ.P. 56(e); see also Nat'l Westminster Bank USA v. Ross, 676 F.Supp. 48, 51 (S.D.N.Y.1987) ("Speculation, conclusory allegations, and mere denials are not enough to raise genuine issues of fact."). No genuine issue exists "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). With these principles in mind, the Court now turns, to the merits of BWIA's arguments for dismissal.

The Montreal Convention "entered into force in the United States on November 4, 2003, updating and replacing the uniform system of liability for international air carriers previously established by the Warsaw Convention." In re Nigeria Charter Flights Contract Litig., 520 F.Supp.2d 447, 452 (E.D.N.Y.2007) (citing Ehrlich v. Am. Airlines Inc., 360 F.3d 366, 371 n. 4 (2d Cir.2004)).¹ As a treaty of the United States, the Convention is considered federal law for subject matter jurisdiction purposes and is the supreme law of the land. See Commercial Union Ins. Co. v. Alitalia Airlines, S.p.A., 347 F.3d 448, 456-57 (2d Cir.2003). By its own terms, the treaty, where applicable, preempts the remedies of a signatory's domestic law, whether or not the application of the Convention will result in recovery in a particular case. See El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 161, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999) ("We ... hold that recovery for a personal injury suffered `on board [an] aircraft or in the course of any of the operations of embarking or disembarking,' ... if not allowed under the convention, is not available at all.... Recourse to local law, we are persuaded, would undermine the uniform regulation of international air carrier liability that the Warsaw Convention was designed to foster."); Alitalia, 347 F.3d at 457; In re Nigeria Charter Flights Contract Litig., 520 F.Supp.2d at 453 ("[T]he Montreal Convention preempts state law claims falling within its scope."). Liability for both personal injury and damage to goods during international flight is covered by its provisions. See Montreal Convention, Art. 1, 17; Alitalia, 347 F.3d at 456. Both parties correctly concede that plaintiff's itinerary met the definition set out in Article 1(2)-(3) for "international carriage" and that the Convention controls.

With respect to compensation for personal injuries, the Montreal Convention provides:

The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Art. 17(1). By its own terms, therefore, Article 17(1) limits liability to the "carrier."

A. Relationship Between the Carriers

Under the Warsaw Convention and the cases interpreting it, "carrier" was construed to mean only the carrier actually conducting the transportation. The case law interpreting the Warsaw Convention established "that only the airline that actually transports the injured passenger can be held liable as `the carrier.'" Pflug v. Egyptair Corp., 961 F.2d 26, 31 (2d Cir. 1992); see also Kapar v. Kuwait Airways Corp., 845 F.2d 1100, 1103 (D.C.Cir.1988); Shirobokova v. CSA Czech Airlines, Inc., 376 F.Supp.2d 439, 442 (S.D.N.Y.2005); Stanford v. Kuwait Airlines Corp., 705 F.Supp. 142, 143 (S.D.N.Y.1989). Accordingly, a plaintiff seeking recovery under the Warsaw Convention could only recover for injuries from the carrier upon whose aircraft the incident occurred, whether on board or during operations related to embarking or disembarking. See Pflug, 961 F.2d at 32; Kapar, 845 F.2d at 1103 (Warsaw Convention delegates "precluded the possibility that the actual carrier for one leg of a scheduled multi-leg trip could be held liable for injuries suffered on another airline during a different leg of the trip."); Shirobokova, 376 F.Supp.2d at 442-43; Stanford, 705 F.Supp. at 143. Moreover, the initial carrier does not become liable for an injury taking place on one of the successive legs of the trip merely by virtue of the fact that the traveler purchased tickets for the entire trip through that initial carrier. See Shirobokova, 376 F.Supp.2d at 442-43 (no liability for Delta, the initial carrier and ticket issuer, where the alleged injury occurred on board successive carrier CSA's flight); Stanford, 705 F.Supp. at 143-44.

In circumstances where carriage is performed by "various successive carriers," the Montreal Convention provides, as did the Warsaw Convention, that liability is limited to the carrier "which performed the carriage during which the accident ... occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey." Montreal Convention, Art. 36 ("Successive Carriage"). It is this provision that applies to the flights taken by Mrs. Best.

Based on the uncontested facts, the relationship between...