Danna v. Air France, 71 Civ. 3648.
Decision Date | 15 November 1971 |
Docket Number | No. 71 Civ. 3648.,71 Civ. 3648. |
Citation | 334 F. Supp. 52 |
Parties | Louis DANNA, Robert F. Esler, and all others similarly situated, Plaintiffs, v. AIR FRANCE et al., Defendants. |
Court | U.S. District Court — Southern District of New York |
LoFrisco, Gallagher & Kenny, Gold, Farrell & Marks, New York City, for plaintiffs, by Thomas R. Farrell, Martin R. Gold, Leonard M. Marks, New York City, of counsel.
Haight, Gardner, Poor & Havens, New York City, for Air France, by Carroll E. Dubuc, New York City, of counsel.
Condon & Forsyth, New York City, for Boac, Air-India, Quantas, by George N. Tompkins, Jr., New York City, of counsel.
Cleary, Gottlieb, Steen & Hamilton, New York City, for Pan American, Japan Air Lines, by James C. Blair, New York City, of counsel.
Chadbourne, Parke, Whiteside & Wolff, New York City, for Trans World Airlines, Inc. by Harold L. Warner, Jr., New York City, of counsel.
Hill, Betts & Nash, New York City, for Olympic by Benjamin E. Haller, New York City, of counsel.
This is a purported class action which raises the question of whether the so-called Youth Fares initiated by the defendant airlines are in violation of the Federal Aviation Act of 1958, 49 U.S.C. §§ 1301-1542. Jurisdiction is invoked under 28 U.S.C. § 1337 in that the action arises under an Act of Congress regulating commerce, namely, 49 U.S.C. § 1374.
The complaint, filed on August 17, 1971, alleges two claims for relief. The first claim, on behalf of plaintiff Louis Danna and all others similarly situated, is alleged against defendants Air France, Pan American World Airways, Inc. (PAA), Trans World Airlines, Inc. (TWA), and Olympic Airways, S.A.
The second claim on behalf of plaintiff Robert F. Esler and others similarly situated, is alleged against defendants British Overseas Airways Corporation (BOAC), PAA, TWA, Japan Airlines Company Ltd., Air-India, and Qantas Airways Ltd.
In essence, both claims are based on the so-called "Youth Fares," allegedly in effect since June of 1971 and pursuant to which the defendants, for air carriage on certain flights, charge lower fares to persons falling within specified age groups than they charge to those not falling within such age groups. The first claim in the complaint relates to the "Paris Youth Fare," pursuant to which the fare for round-trip economy class for one person between New York City and Paris, France is allegedly $200 plus $3 tax (or $220 plus tax during June, July and August) for persons between 15 and 25 years old, inclusive.1 It is alleged that, for persons older than 25, the fare for one person for the same round-trip economy class flight is $596 plus $3 tax. The second claim in the complaint relates to the so-called "London Youth Fare," pursuant to which the fare for round-trip economy class for one person between New York and London is allegedly $100 plus tax (or $210 plus tax during June, July and August) for persons between 12 and 25 years old, inclusive. It is alleged that for persons older than 25, the fare for one person for the same round-trip economy class flight is $552 plus tax.
Danna, the plaintiff in the first claim, alleges that he sought to purchase from each of the first claim defendants a ticket for round trip between New York and Paris at the lower fare; that he was refused by reason of his being over the age limit; and that he then purchased a ticket at the higher fare from defendant Air France. Esler, the plaintiff in the second claim, makes substantially the same allegations respecting efforts to purchase a ticket for round trip between New York and London at the lower fare from the second claim defendants, and further alleges that he then purchased a ticket at the higher fare from defendant BOAC.
Plaintiff Danna alleges that he is a member of a class of persons exceeding 50,000, each of whom is not within the age group to which the Paris Youth Fare applies and each of whom has consequently paid in excess of the Paris Youth Fare for round trip economy class air passage between New York and Paris. It is claimed that plaintiff Danna and each member of the purported class have been damaged to the extent of the difference in the fares. Plaintiff Esler makes substantially the same allegations with respect to the London Youth Fare, and purports to act for another class of persons exceeding 50,000.
The fare differential and the estimated size of the class affected results in claimed damages of twenty million dollars on each of the two claims, for an aggregate of forty million dollars, plus interest, costs, disbursements and a reasonable attorneys' fee.
The complaint charges that the defendants each violated Federal Aviation Act § 404(b), 49 U.S.C. § 1374(b), which reads as follows:
"(b) No air carrier or foreign air carrier shall make, give, or cause any undue or unreasonable preference or advantage to any particular person, port, locality, or description of traffic in air transportation in any respect whatsoever or subject any particular person, port, locality, or description of traffic in air transportation to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever."
The allegation is that each member of the class who was outside the age group eligible for the Youth Fare was, by virtue of being required to pay more for the same service, subjected to an "unjust discrimination" and an "undue or unreasonable prejudice or disadvantage." Concomitantly, it is alleged that those eligible for the Youth Fare were given an "undue or unreasonable preference or advantage."
In a series of six motions now before this Court, all the defendant airlines move to dismiss the complaint upon the ground that it fails to state a claim upon which relief can be granted. Fed. R.Civ.P. 12(b) (6).2 The plaintiffs also move for a determination that this action may be maintained as a class action and for a delineation of membership of the class.
The defendants' contentions, particularly as made by PAA, are the following:
(1) the claim that discrimination or preference in an air carrier's field fares constitutes a violation of the above-quoted § 404(b) of the Federal Aviation Act is within the primary jurisdiction of the Civil Aeronautics Board (CAB); (2) even if the CAB, in the exercise of its primary jurisdiction, finds that such fares do violate § 404(b), no private action exists for the charging of such fares during the period before such CAB determination; and (3) even if such private right of action did exist, it would be maintainable only by one who has sustained a private injury by reason of the violation of § 404(b), and, as a matter of law, the mere paying of a higher fare than that paid by someone else for the same flight is not a private injury giving rise to a claim.
The plaintiffs, on the other hand, contend: (1) that there is no primary jurisdiction in the CAB, as is evidenced by the assumption of jurisdiction by the Federal courts in cases involving alleged violations of § 404(b); (2) that there is a private right of action for damages for past unjust discriminations and preferences; and (3) that the plaintiffs have been damaged by the defendants' preferential discounts and unjust discriminations, in that the plaintiffs have been compelled to pay discriminatorily higher rates for the same service and are in effect subsidizing Youth Fare passengers and the airlines. As a further source of damage, they urge in argument3 that the defendants have committed a breach of an implied contract that the plaintiffs would not pay more than other passengers for the same service and that the fares charged would be lawful. The plaintiffs contend, moreover, that the fact that the Youth Fare rates were filed with the CAB is irrelevant because no unjustly discriminatory or unduly preferential rate can be lawful, filed or not, and that mere filing does not signify acceptance or approval of the rate by the Board. Finally, it is urged, the U. S. carriers cannot defend upon the ground that they had to match foreign competition for they could have sought injunctive relief instead of willingly participating in the discrimination and preference.
Section 403 of the Federal Aviation Act, 49 U.S.C. § 1373, provides in part:
The Court will take judicial notice that the tariffs filed under § 403 actually showed the Youth Fare charged to that age group as well as the higher rates charged to the plaintiffs. There is no claim that there was an "overcharge" on any particular filed rate. The defendants evidently charged each category of passengers the exact fare as filed for that category in currently effective tariffs. The mischief suggested, in the claim of plaintiffs, is not that the defendants departed from their tariffs, or even that the regular economy round-trip fare to Paris and London was unreasonably high, but...
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