Tseng v. El Al Israel Airlines, Ltd.
| Decision Date | 13 March 1996 |
| Docket Number | No. 94 Civ. 3385 (LLS).,94 Civ. 3385 (LLS). |
| Citation | 919 F. Supp. 155 |
| Parties | Tsui Yuan TSENG, Plaintiff, v. EL AL ISRAEL AIRLINES, LTD., Defendant. |
| Court | U.S. District Court — Southern District of New York |
Silk, Bunks & Suckle, P.C., New York City (Robert H. Silk, of counsel), for Plaintiff.
Cordon & Forsyth, New York City (Diane Westwood Wilson, Stephen J. Fearon, Debra A. Shields, of counsel), for Defendant.
Plaintiff Tsui Yuan Tseng claims defendant El Al Israel Airlines, Ltd. ("El Al"), which searched her person and bags as she was boarding a flight, subjected her to assault, false imprisonment, physical and mental abuse and humiliation, and the loss of and damage to her property.
The case was tried to the court on March 7, 8, and 11, 1996. From my observation of the witnesses and exhibits, I find the preponderance of the credible evidence establishes the following facts. All Agreed Findings in the Consent Pretrial Order are found as facts, and are supplemented by the findings below.
On May 22, 1993, Ms. Tseng went to El Al's terminal at John F. Kennedy International Airport in Queens, New York to take a flight to Tel Aviv. While awaiting check-in she was queried about her reasons for the trip, asked to wait, and then taken to a small room with a few chairs and a table, where she was searched.
At the instruction of a uniformed man and woman, she put her luggage (a suitcase, a carry-on bag and her purse) on the table and unlocked it. The man and woman took out the contents of her luggage and put her things into small baskets, which they took into another room into which she was not allowed to follow.
The woman then told Ms. Tseng to take off her jacket, sweater, shoes, and belt, and to loosen and lower her blue jeans to just below her hip. The woman proceeded to search her, first by feeling her body by hand outside her clothes from head to toe, and then with an electronic security wand.
After an hour or so, they stuffed her things messily back into her luggage. She was then escorted to her plane. They told her to leave her suitcase there, and that it would be put on the plane.
During the flight, she felt sick, upset, and nervous, and had a headache. She glanced a few times in her carry-on bag, but its contents were so disorganized that she could not find anything.
At her hotel in Tel Aviv, she opened her suitcase, carry-on bag, and purse. She sorted through the messy contents and discovered that many of her clothes were stained and damaged, and that several items were missing, including a Rolex watch, a jade ring, some of her clothes, and a thousand dollars in cash. She called El Al's office in Tel Aviv, and was told that they could not do anything about the losses in Israel and to wait until she was back in the United States and then report them.
She returned to the United States on or about June 20, 1994. Around the end of June, she went to see her doctor for treatment of headaches, upset stomach, ringing in her ears, nervousness and sleeplessness, all of which had bothered her since she was searched. She also brought to El Al, in person, a letter dated July 1, 1994, complaining about her search and detention and listing the items that were missing and damaged.
El Al claims she was searched because her reasons for her trip appeared "illogical," but it is unable (for lack of memory and records) to specify how. It urges, and I accept, that the actual method of search of her person conformed to their usual practice.
The parties dispute whether the Warsaw Convention applies to plaintiff's claims that she suffered injury as a result of her detention and search by El Al. In particular, they dispute whether her claimed injuries resulted from an "accident" within the meaning of Article 17 of the Convention, which states:
The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
Air France v. Saks, 470 U.S. 392, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985), dealt with the definition of "accident" in Article 17. The Supreme Court concluded that "liability under Article 17 of the Warsaw Convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger," and stated further that "This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries." 470 U.S. at 405, 105 S.Ct. at 1345. In Shen v. Japan Airlines, 1994 WL 167989 (S.D.N.Y.), aff'd, 43 F.3d 1459 (2d Cir.1994), this court applied the Warsaw Convention to the detention, search, and confinement of passengers by Japan Airlines. Id. at *2.
Plaintiff argues that El Al's actions were not an "accident" but wilful misconduct, and therefore not covered by the Convention.
The record in this case does not support the proposition that the search of the plaintiff was wilful misconduct. The actual techniques for carrying out the search were those prescribed by El Al's procedures, and are reasonable in light of the need for discovering small dangerous objects, if the prospective passenger appears to pose a threat.
There is no evidence that the plaintiff actually posed such a threat, and there is no evidence explaining why she was selected to be searched. Although El Al's records state that her story was illogical, no reason is given why El Al personnel thought so.
It may have been a mistake. There may have appeared a basis for El Al's suspicions, although they ultimately proved groundless. However, there is no evidence and no basis for inferring that it was anything more than a mistake. Even if such a mistake can be characterized as misconduct, there is no basis for inferring that it was wilful. Accordingly, I find that it was not such wilful misconduct as might take the case outside the Convention's limitations of liability under Article 25.1
Occasional personal searches are recognized incidents of international air travel. The evidence shows that they occur two to four times a day at El Al alone, which averages over 1,000 times per year for that single airline.
Using the flexible application prescribed by the Supreme Court, such a routine search, applied erroneously to plaintiff in the course of embarking on the aircraft, is fairly accurately characterized as an accident; that is to say, an unexpected or unusual event or happening external to the passenger.
Accordingly, the Warsaw Convention applies.
Under the Convention, the case is governed by Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991), in which the Supreme Court squarely considered and squarely disallowed any recovery for psychic or psychosomatic injury unaccompanied by bodily injury. 499 U.S. at 552, 111 S.Ct. at 1502.
Here, the plaintiff sustained no bodily injury. Her body was not injured by the woman who searched her by feeling the surface of her body outside her clothing with her hands, and by using an electronic security wand to detect metal objects. On the contrary, all of her personal injuries are attributable to her shock and outrage at the way she was treated. Although her injuries may have had physical manifestations, those are the types of psychic or psychosomatic injuries barred by Floyd and not the "bodily injury" for which compensation is available under Article 17 of the Convention.
The Convention precludes recovery on such claims under state law. Article 24 of the Convention provides:
See In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267 (2d Cir.) (), cert. denied, 502 U.S. 920, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991).
Accordingly, Ms. Tseng's claims for personal injuries are dismissed.
The Convention also applies to plaintiff's claims for damages to her checked and carry-on luggage.
"With respect to checked baggage, Article 18 provides for the strict liability of carriers for loss or damage sustained while under the control of the carrier." Republic National Bank of New York v. Eastern Airlines, Inc., 815 F.2d 232, 236 (2d Cir.1987). Ms. Tseng's suitcase was under El Al's control when the items in her suitcase were lost and damaged, so El Al is liable for that damage and loss.
For claims of damage to carry-on baggage, the Convention imposes liability on the carrier if the damage is the result of an accident. See Baker v. Lansdell Protective Agency, Inc., 590 F.Supp. 165, 167 (S.D.N.Y. 1984). The items in Ms. Tseng's carry-on baggage were lost and damaged as the result of the search, which was an accident, so El Al is liable for the damage to and loss of items in that carry-on baggage.
The parties dispute whether El Al escapes liability for the loss of and damage to items in plaintiff's baggage under the Convention's requirement that plaintiff give prompt notice to it of the loss.
Article 26 of the Convention provides, in pertinent part:
Although Article 26 of the Convention on its face requires written notice to the...
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