Harby v. Saadeh
| Decision Date | 05 May 1987 |
| Docket Number | No. 86-1723,86-1723 |
| Citation | 816 F.2d 436 |
| Parties | Ahmed Al HARBY, Plaintiff-Appellee, v. David E. SAADEH, doing business as the Oasis Travel, Defendant, and Kuwait Airways Corp., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David A. Senior, Los Angeles, Cal., for defendant-appellant.
Julian T. Laswtowski, San Francisco, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of California.
Before GOODWIN, PREGERSON and HALL, Circuit Judges.
Kuwait Airways Corp. appeals a judgment awarding Ahmed Al Harby $4,514 for breach of contract.
The district court found a breach when passenger Harby, who had purchased an "open return" ticket, was unable to book a flight when he was ready to return to the United States. He claimed that he was stranded in Yemen for ten days because the airline could not provide him timely return reservations.
A travel agent, David E. Saadeh of the Oasis Travel in San Francisco, sold Harby the Kuwait Airways roundtrip, open-return ticket which provided for transportation from San Francisco to Yemen and return for $1,706. Saadeh had made no reservation for Harby's return because Harby was uncertain of his desired return date.
Harby departed San Francisco for Yemen on July 23, 1983. After completing a stay of approximately ten weeks, Harby contacted Bilqis T & Tour, a travel agent in Yemen, to make a reservation for a return flight to San Francisco. 1 Bilqis said Harby would have to come to Sanaa in order to confirm a reservation on the next Kuwait Airways flight. Upon arriving in Sanaa, Harby was told there was no room on the Kuwait Airways flight departing that date, and the next Kuwait Airways flight would be in one week. Five days passed before Bilqis discovered that there was no space available on the next flight. Harby was unable to obtain a definite reservation on any future Kuwait Airways flight. Harby then purchased for $1,414 a one-way ticket on a flight departing Sanaa on Yemen Airways.
Harby then demanded a refund from Kuwait Airways, and from Saadeh, of one-half the total fare paid for his roundtrip Kuwait Airways ticket. Both responded that they would not make such a refund. However Kuwait Airways offered to make a refund of $163, the difference between the regular one-way coach fare from San Francisco to Yemen, and the amount Harby had paid for the roundtrip ticket. Harby rejected the offer and sued.
The trial court concluded as a matter of law that both Saadeh and Bilqis were acting as agents of Kuwait Airways; that Harby had fully complied with the conditions of his ticket; and that Kuwait Airways breached its agreement with Harby, causing him to suffer expenses and damages as a result of the airline's breach. The court then awarded Harby damages of $1,414 for the cost of his return fare on Yemen Airways; $1,600 for the costs of lodging and other expenses due to delay in Sanaa; and general damages of $1,500.
The trial court's finding that Kuwait Airways breached its contract with Harby was clearly erroneous. An open-return ticket guarantees no departure time, but merely the right to the next available open seat. Because Harby had an open-return ticket, the obligation to transport Harby by a certain date or time was not a term of the contract (the contract, here, being the airline ticket). "[W]here an essential element is reserved for future agreement of both parties, a legal obligation cannot result." Transamerica Equipment Leasing Corp. v. Union Bank, 426 F.2d 273, 274 (9th Cir.1970). Because the return date was not a term of the contract, the airline's failure to transport Harby back to San Francisco in a timely manner could not result in a breach of contract.
Despite the trial court's error on the contract finding, we would affirm the court's decision if it were correct on any theory. A more tenable legal theory in this case might have been negligence by the travel agent. In American Express Co. v. Teitel, 119 Misc.2d 822, 464 N.Y.S.2d 947, 951 (1983), the court recognized that ticket agents have a duty to impart accurate material information to their clients. Harby claims that Saadeh failed to indicate the rather peculiar and important circumstance that only one Kuwait Airways flight departed Sanaa per week, and hence, that return reservations might be difficult to procure. Although Harby pleaded professional negligence as the first cause of action in his complaint, the trial court's findings reveal no explicit finding of liability on the negligence theory. The trial court, however, used the word "negligence" in describing the airline's contract breach.
We need not reach the question whether Saadeh was negligent in failing to disclose to Harby material information, however, because Harby presented insufficient evidence to prove that Saadeh was Kuwait Airways' agent for the purpose of advising Harby. Without the finding of agency, Kuwait Airways cannot be held liable on this record for Saadeh's negligence.
The trial court stated no basis for its finding that Saadeh and Bilqis were Kuwait Airways' agents. The trial transcript reveals little about the agency relationship between the airline and Saadeh. Defense witness Theresa Clagg, a four-year reservations and ticket agent for Kuwait Airways, testified that both Kuwait Airways and Saadeh were members of the International Air Transport Association--but said little of substance regarding any agency relationship. She stated, however, that Oasis Travel, Saadeh's business, was authorized to sell tickets for Kuwait Airways, and that there was some sort of an agreement between the airline and the travel agency, but that she was not sure what it was. At trial, Harby's counsel attempted to offer into evidence a standard IATA agreement between travel agencies and the IATA as evidence of the agency relationship between Kuwait Airways and Saadeh, but it is not clear whether the court considered the form probative on the crucial agency question. 2
Agency is the fiduciary relationship which results when one person consents that another shall act on his behalf and subject to his control. Nelson v. Serwold, 687 F.2d 278, 282 (9th Cir.1982). Control is a crucial element missing from the relationship between Kuwait Airlines and Saadeh. Although the airline benefited from Saadeh's ticket sale to Harby, Harby presented no evidence demonstrating that Kuwait Airways controlled...
To continue reading
Request your trial
-
Newman v. Checkrite California, Inc.
...to the other's control, may be both an agent and an independent contractor. See Restatement of Agency Second §§ 2, 14N; Harby v. Saadeh, 816 F.2d 436, 439 (9th Cir.1987). Accordingly, employers may be liable for the acts of independent contractors when an agency relationship is demonstrated......
-
In re Nigeria Charter Flights Contract Litigation
...carrier") (emphasis in original). Diversity of opinion also appears among cases involving travel agents. Compare Al Harby v. Saadeh, 816 F.2d 436, 438-39 (9th Cir.1987) (travel agent was not airline's agent), and Simpson v. Compagnie Nationale Air France, 42 Ill.2d 496, 499, 248 N.E.2d 117,......
-
TransWorld Airlines, Inc. v. American Coupon Exchange, Inc.
...(9th Cir.1987) (holding an airline passenger "contractually bound" by the liability limitations on his ticket coupon); Harby v. Saadeh, 816 F.2d 436, 438 (9th Cir.1987) (allowing breach of contract action for failure to provide a timely return flight, and analyzing the "term[s] of the contr......
- U.S. v. Penagaricano-Soler
-
Chapter § 2.06 FLIGHT DELAYS
...PLC, 41 F.3d 535 (9th Cir. 1994) (airline failed to inform stranded passenger of discontinuance of connecting flight); Harby v. Sadeeh, 816 F.2d 436 (9th Cir. 1987). State Courts: Georgia: Sethi v. KLM Royal Dutch Airlines, 21 Aviation Cases 18,400 (Ga. App. 1989) (passenger denied boarding......