Harpalani v. Air India, Inc.

• Decision Date: 30 September 1985
• Docket Number: No. 85 C 244.,85 C 244.
• Citation: 622 F. Supp. 69
• Parties: Usha HARPALANI, Jaideep Harpalani, a minor, by his mother and next friend Usha Harpalani; and Haresh Harpalani, a minor, by his mother and next friend Usha Harpalani, Plaintiffs, v. AIR INDIA, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

622 F. Supp. 69

Usha HARPALANI, Jaideep Harpalani, a minor, by his mother and next friend Usha Harpalani; and Haresh Harpalani, a minor, by his mother and next friend Usha Harpalani, Plaintiffs, v. AIR INDIA, INC., Defendant.

No. 85 C 244.

United States District Court, N.D. Illinois, E.D.

September 30, 1985.

John Scott Hoff, Jeffrey O. Rubin, Lapin, Hoff, Spangler & Greenberg, Chicago, Ill., for plaintiffs.

David L. Carden, Lee Ann Russo, Coffield, Ungaretti, Harris & Slavin, Chicago, Ill., for defendant.

MEMORANDUM OPINION

KOCORAS, District Judge:

The plaintiffs, Usha Harpalani and her two children, Jaideep and Haresh Harpalani, are United States citizens who reside in Naperville, Illinois. In March, 1983, they booked round trip air transportation on Air India from New York to Bombay, India through Air India agents in Chicago. After arriving in India in August, 1983, Usha Harpalani allegedly contacted Air India agents in Poona, India and confirmed reservations for their return flight at 1:05 a.m. on August 24, 1983. When the Harpalanis reported to the Air India counter at the Bombay airport on the evening of August 23 for preflight check-in, Air India employees advised them that the flight was overbooked and that they would not be allowed to board. The complaint further alleges that Air India refused endorse the Harpalanis' tickets to other airlines which had flights from Bombay to New York that evening but instead advised the Harpalanis to "try again tomorrow." Complaint ¶ 21. Air India allegedly refused to board the Harpalanis or endorse the tickets for the following six days until on August 31, 1983, the Harpalanis were permitted to board an Air India flight from Bombay to New York.

The Harpalanis seek to recover damages for the delay, including inconvenience and monetary loss such as the cost of meals and lodging in Bombay, telephone expenses and Usha Harpalani's lost wages. The complaint alleges violations of the Warsaw Convention, specified federal regulations, the Illinois Consumer Fraud and Deceptive Business Practices Act and breach of contract.

Air India has moved to dismiss on several grounds. Air India asserts that Counts I and II fail to state a claim under Article 19 of the Warsaw Convention and the federal regulations, respectively, and in the alternative that if Count I does state a cognizable claim under the Warsaw Convention that the remaining counts should be dismissed because the Convention provides an exclusive remedy. Air India also moves for dismissal on forum non conveniens grounds. Finally, Air India asks the court to strike the Harpalanis' jury demand, pursuant to 28 U.S.C. § 1330. The motion to dismiss will be granted in part and denied in part; the motion to strike the jury demand will be granted.

I.

The Warsaw Convention

A. Does Count I state a cause of action under the Warsaw Convention?

The Warsaw Convention applies to all international transportation of persons, baggage, or goods performed by aircraft for hire. Warsaw Convention, done Oct. 12, 1929, art. 1, note following 49 U.S.C. § 1502. For purposes of the Convention, "international transportation" includes any transportation in which both the places of departure and destination are within the territory of signatories to the Convention. Id. Both the United States and India are signatories.

Article 19 of the Convention provides:

The carrier shall be liable for damage occasioned by delay in the transportation by air of passengers, baggage, or goods.

Id. art. 19. While few reported cases discuss Article 19, those few suggest that Article 19 provides a cause of action in cases such as this one. See Mahaney v. Air France, 474 F.Supp. 532 (S.D.N.Y. 1979) (recovery under Article 19 of cost of ground transportation necessitated by "bumping" by airline barred by statute of limitations), Hill v. United Airlines, 550 F.Supp. 1048, 1054 (D.Kan.1982).

Air India urges this court to adopt the reasoning of the court in Brunwasser v. Trans World Airlines, Inc., 541 F.Supp. 1338 (W.D.Pa.1982) and rule that the bumping does not fall within the phrase "in the transportation by air." The facts of Brunwasser are clearly distinguishable from those of the case at hand, however. In Brunwasser, the plaintiff purchased in February of 1981 non-stop round-trip tickets on TWA from Pittsburgh to London in September of that year. When TWA later cancelled the flight, the airlines contacted the plaintiff in June and offered three alternatives to the previously scheduled flight: (1) a non-stop flight on another day, (2) travel on the date originally scheduled but with a stop in New York, or (3) a refund of the purchase price of the tickets. The plaintiff, finding none of the alternatives acceptable, filed suit, claiming that cancellation of the flight violated Article 19 of the Warsaw Convention. The court held that the cancellation did not amount to a delay "in the transportation by air." The court felt that the phrase should be construed narrowly and adopted the definition found in Article 18 of the Convention, which deals with airline liability for lost or damaged baggage:

The transportation by air within the meaning of this article shall comprise the period during which the baggage or goods are in the charge of the carrier, whether in an airport or board an aircraft ...

Warsaw Convention, art. 18(2). This definition, however, applies only to Article 18 of the Convention; that the drafters did not provide a similar definition for Article 19 is significant. Furthermore, the Harpalanis, unlike the plaintiff in Brunwasser, were at the airport and in the charge of the carrier, as Air India controlled whether or not they left that night, at the time of the bumping.

The Brunwasser court also applied the three-prong test used by courts to determine whether a sufficient nexus exists between personal injury and air travel to state a claim under Article 17 of the Convention: the location of the accident, the activity in which the injured person was engaged, and the control by the defendant of the injured person at the time of the accident. Brunwasser, 541 F.Supp. at 1344. The court found that the test was not met because the acts complained of "occurred long before the plaintiff was to engage in any air travel with the defendant," and because by offering the alternatives, TWA never exercised any significant control over the plaintiff's actions. Id. at 1345. In the instant case, the Harpalanis were notified of the bumping at the airport just two hours before take-off. Furthermore, because Air India refused to endorse the tickets and did not offer the Harpalanis any alternatives, Air India exercised complete control over whether the Harpalanis left India.

Air India also argues that recognizing that the Harpalanis have a cause of action under Article 19 would defeat the purpose of the Convention to limit the liability of international air carriers. That purpose is met by subjecting claims within the Warsaw Convention to a $75,000 ceiling on damages, not by reading out of the Convention those claims that clearly fall within it. Indeed, deciding that this bumping was not actionable under the Convention would permit the Harpalanis to proceed under another theory, such as breach of contract, under which the airline's liability would be unlimited.¹

Therefore, Count I does state a cause of action under the Warsaw Convention and the motion to dismiss will be denied as to Count I.

B. Does the Warsaw Convention provide the exclusive remedy?

Air India argues that if Article 19 does state a cause of action, the Warsaw Convention provides an exclusive remedy and therefore all of the remaining counts should be dismissed.

Article 24 of the Convention provides in relevant part:

In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.

The circuit courts of appeal which have discussed Article 24 have different understandings of the article's meaning. The Ninth Circuit, in In re Mexico City Aircrash of October 31, 1979, 708 F.2d 400, 414 n. 25 (9th Cir.1983) suggested that alternative legal bases of action remained available but that neither the liability limits of the Convention nor its limitation period may be circumvented by resort to such an alternative basis. The Fifth Circuit has squarely held, however, that where the Warsaw Convention provides an independent cause of action, it provides the exclusive remedy thereby preempting other state or federal law claims, Boehringer-Mannheim Diagnostics, Inc. v. Pan American World Airways, Inc., 737 F.2d 456 (5th Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 951, 83 L.Ed.2d 959 (1985) and both the Second and Third Circuits have indicated that they would follow this approach. See Benjamins v. British European Airways, 572 F.2d 913 (2d Cir.1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (1979), Abramson v. Japan Airlines Co., 739 F.2d 130, 134 (3d Cir. 1984), cert. denied, ___ U.S. ___, 105 S.Ct. 1776, 84 L.Ed.2d 835 (1985). The view that the Warsaw Convention provides an exclusive remedy furthers the dual purposes of the Convention to establish a uniform body of world-wide liability rules to govern international aviation and to limit of liability of international air carriers. Reed v. Wiser, 555 F.2d 1079, 1089-90 (2d Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279 (1977).

The Harpalanis argue that their allegations of willful misconduct on the part of Air India, if proven, would permit them to circumvent the exclusivity of the Convention. They rely on Article 25(1) of the Convention which provides:

The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his wilful misconduct. ...

Warsaw Convention, art. 25(1).

Air India concedes that if willful misconduct on its part...