Jan 15 2018

Morrison Mahoney Aviation Update – January 15, 2018

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Montreal Convention-Convention for the Unification of Certain Rules for International Carriage by Air Montreal, May 28, 1999

Personal Jurisdiction

Tucker v. British Airways PLC., 2017 WL 6389302 (W.D. Wash Dec. 14, 2017)

Court rejected assertion of claimants as to personal jurisdiction over wheelchair service vendor. There was no Article 30 agency as there was no proffered evidence of any agency relationship between airline and wheelchair service provider. Claimant’s further reliance on Article 33 which provides for jurisdiction where, inter alia, the claimant is a resident of the forum state was insufficient as Montreal Convention provides for subject matter jurisdiction not personal jurisdiction. There remained no showing of any basis to exert personal jurisdiction over the wheelchair vendor.

NOTE: Under Article 33 the Montreal Convention, injured passengers may bring an action in five fora where subject matter jurisdiction exists:(1) in the territory of one of the States Parties, or (2) either before the court of the domicile of the carrier or its principal place of business, or (3) where the carrier has a place of business through which the contract has been made, or (4) before the court at the place of destination, or (5) in the territory of a State Party in which, at the time of the accident, the passenger has his or her principal and permanent residence, and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier's aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement. Even if there is subject matter jurisdiction, there still remains the need to show personal jurisdiction.

Time Limitation for Bringing Contribution/Indemnity Claims

AGCS Marine Insurance Co. v. Geodis Calberson Hungaria Logisztikai, KFT, 2017 WL 5891818 (S.D. N. Y. Nov. 28, 2017)

The Southern District Court in New York addressed the question of first impression in the Second Circuit as to whether Article 35 of the Montreal Convention, which provides that “[t]he right to damages shall be extinguished if an action is not brought within a period of two years,” applies to suits seeking contribution and indemnification. The Court followed the only circuit court to have addressed the issue (Ninth Circuit) and held that the two year condition precedent period under the Convention did not apply to third party claims seeking contribution or indemnification.

The suit was a claim against the contracting carrier for allegedly damaged computer equipment and which was initiated more than two years after the loss. The contracting carrier defendant, in turn, subsequently asserted claims against the actual carrier for contribution and indemnification. The Court proceeded to adopt the analysis of the Ninth Circuit in a 2011 decision-Chubb Ins. Co. v. Europe S.A. v. Mento Worldwide Forwarding, Inc., 634 F. 3d 1023 (9th Cir. 2011). There, it was held that the two year statute of limitations set forth in Article 35 extinguishes only a single right: “the right to damages” and not any third party claim for contribution or indemnification.

Reliance was also made on other provisions of the Convention and particularly Articles 37 and 45 for the conclusion that that the two year statute of limitations did not apply to the contribution or indemnification claims. Article 37 provides: “Nothing in this Convention shall prejudice the question whether a person liable for damage in accordance with its provisions has a right of recourse against any other person.” Article 45, in turn, provides that where “an action for damages” is brought against a contracting carrier or an actual carrier, but not both, “that carrier shall have the right to require the other carrier to be joined in the proceedings, the procedure and effects being governed by the law of the court seised of the case.”Accordingly, it was found that if Article 35 were construed to apply to contribution or indemnification claims it would contravene Article’s 37 directive of not prejudicing “a right of recourse against any other person.” Similarly, Article 45 was deemed to make plain that that, “where an action is brought against one carrier within Article 35's two-year period, ‘that carrier shall have the right to require’ other carriers ‘to be joined in the proceedings,’ and that third-party action will be subject to ‘the procedures and effects' of local law, not the strictures of Article 35.”

NOTE: Article 29 of the Warsaw Convention was virtually identical to Article 35 of the Montreal Convention with case law under the Warsaw Convention holding that the two year period did apply to contribution and indemnification claims. While Courts generally look at the precedent under the Warsaw Convention in interpreting the Montreal Convention, there are “material differences” between the two conventions. Unlike the Montreal Convention, the Warsaw Convention contained no reference to, or provisions governing, the “right of recourse.” The “right of recourse” provisions in the Montreal Convention was found to all but compel the conclusion that Article 35 does not extend to claims for indemnification and contribution. Accordingly, local law will apply to the time limitations applicable to third party contribution and indemnity claims.

Improper Contact With Flight Attendants-Sanction

Raub v. US Airways, Inc., 2017 WL 5172603 (E.D. Penn. 2017)

Airline sought sanctions against attorney for contacting and interviewing two flight attendants relative to a claim being asserted by claimant against airline. Airline sought sanction of revocation of pro hac vice admission.

Applying Pennsylvania Attorney Ethical Rules, the Court held that the ex parte contact with the flight attendants by the attorney for the claimant violated the applicable ethical rules. These rules prohibit contract with employees of an opposing party “who supervises, directs or regularly consults with the organization's lawyer concerning the matter or had authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”

The dispositive issue was whether the flight attendants were represented parties as employees whose acts or omissions in connection with the matter may be imputed to the airline for purposes of civil liability. The Court rejected the argument that since the complaint did not allege any negligence on behalf of the flight attendants, there was no ethical bar in the ex part contact and communication The Court found that the flight attendants were represented parties because they are persons “whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”

The Court rejected the claim that the attorney provided false or misleading information to the flight attendants. The flights attendants did not recall the specifics of the interview with the Court finding that it had not been shown that the omission that the attorney was contemplating suing the airline was material. The Court further declined to revoke the pro hac vice admission as a sanction instead opting to “admonishment.”

Article 17—Embarking—Inter-terminal Transfers

Brannen v. British Airways, PLC., 2017 WL 4953856 (M.D. Penn. 2017)

Claimant claimed an injury to his shin including infection while boarding an inter-terminal bus to travel from one terminal at Heathrow Airport to another in order to embark on a connecting flight as part of a travel from New Jersey to France. Prior to the incident, claimant was informed by airline that connecting flight from Heathrow to France had been cancelled but to otherwise proceed to another terminal for substitute connecting flight with another airline. Claimant brought action against Viking River Cruises and British Airways as the acting and actual carriers respectfully. Court granted motion to dismiss.

Court held that the allegations of the complaint failed to establish that the injury occurred during the course of the operations for embarking necessary for Article 17 liability. Court found that complaint was not in the waiting line or other similar operation of embarking but had been injured because an inter-terminal bus had allegedly stopped too far from the curb resulting in his injury when he attempted to board the bus. While the inter-terminal bus was to transport claimant to a connecting flight, the Court found that the “complaint does not allege sufficient facts to suggest that the connecting flight was prepared to leave imminently or that all other passengers were on board” and that the original flight had been cancelled. Further, the claimant was injured in a location that was accessible to other passengers and was not, according to the facts alleged in the complaint, any type of exclusive area.

The Court likewise rejected the contention that the claimant was under the control of the airline at the time of the incident. While the claimant had been instructed by airline to the new flight and terminal location, they were not instructions relative to immediate boarding and were not under the control of the airline at the time and place of the injury relative to the bus. Finally, the court held that the activity of a transfer via an inter-terminal bus was not the type of activity that alone would invoke Article 17’s applicability. The activity was deemed “too attenuated” from embarking to trigger Article 17 liability.

NOTE: The three factor test commonly used to assess whether the injury occurred during the process of embarking or disembarking includes consideration of the location of the accident, the activity in which the passengers were engaged at the time of the injury, and the defendant's control over the passengers.

AIRLINE DEREGULATION ACT--49 U.S.C. § 41713(b)(1)—PREEMPTION AND REASONABLE COMMUNICATION

Angela-Casciano Schlump v. JetBlue Airways Corp., 2017 WL 6542409 (D. Puerto Rico 2017) (December 21, 2017)

Claimant brought breach of contract and related claims as to the loss of certain asserted and “valuable” jewelry as to a flight between Boston, Massachusetts and San Juan Puerto Rico.

Court held that the breach of contract claim was not preempted by the ADA. As to the breach of contract claim, the Court denied the motion to dismiss finding the allegations sufficient to proceed. The Court noted that under the First Circuit’s reasonable communicativeness test as to whether passenger was on reasonable notice of the terms of the contract, a two part standard applies: (1) the court must examine in detail the physical characteristics of ticket/contract and (2) whether its language and appearance make the relevant provisions sufficiently obvious and understandable. Since the actual ticket was not provided as part of the complaint, the court was unable to undertake any detailed examination of the physical characteristics of the ticket/contract. The Court declined to consider the airline’s proffer of a “sample confirmation.” Based on the allegations alone the action was entitle to proceed with the Court reserving judgment as to the sufficiency of the ticket for a later time..

ADA PREEMPTION

WAGNER v. SUMMIT AIR AMBULANCE LLC., 2017 WL 4855391 (D. Mont. 2017)

Claimant asserted claims against air ambulance service regarding emergency transport of claimant’s son for medical treatment in which the air ambulance service sought $109,000 for the transport. Claimant asserted that the charges violated state law, were unreasonable, and constituted a violation of the covenant of good faith and fair dealing. Air ambulance service sought dismissal based on ADA preemption.

Court confirmed that the ADA expressly preempts any state law or regulation “related to a price, route, or service of an air carrier.” While states may not impose “their own substantive standards with respect to rates, routes, or services,” the ADA presents no bar to relief where a plaintiff “claims and proves that an airline dishonored a term the airline itself stipulated.” The ADA provides no shelter for airlines from suits that allege no violation of state-imposed obligations, but seek recovery “solely for the airline's alleged breach of its own, self-imposed undertakings.”

The Court denied the motion to dismiss finding that the complaint sufficiently alleged a cause of action for both breach of contract and violation of the covenant of good faith and fair dealing based on self-imposed obligations outside the reach of ADA preemption.The Court held that the claimants pleaded facts to support the following: (1) that a contract existed between the parties, (2) that the “reasonable worth” of the services constituted the “self-imposed” consideration term, and (3) that the $109,590 charged by Defendants exceeded the “reasonable worth” of a 535-mile one-way trip in breach of contract. The Court also found that Montana law allows the parties to disclaim the covenant of good faith in fair dealing in the contract.

NOTE: ADA preemption of claims for breach of the implied covenant n of good faith and fair dealing remains limited due to the Supreme Court’s decision in Ginsberg in which it was held that implied covenant rules escape preemption “only if the law of the relevant State permits an airline to contract around those rules.” The Supreme Court has recognized that such an obligation “cannot be viewed as simply an attempt to vindicate the parties' implicit understanding of the contract,” but instead “seeks to enlarge” the agreement. This distinction confines courts, in breach-of-contract actions, “to the parties' bargain, with no enlargement or enhancement based on state laws or policies external to the agreement.”

American with Disabilities Act- Court dismissed claim under the American with Disabilities Act -, 42 U.S.C. § 12181 et seq.

Mennella v. American Airlines, Inc., 2017 WL 6560467 (S.D. Fla. 2017) ---American with Disabilities Act

Court dismissed claim under the American with Disabilities Act -, 42 U.S.C. § 12181 et seq.. Court confirmed that Title III of the ADA prohibits discrimination in public accommodations, commercial facilities, and specified public transportation. See 42 U.S.C. §§ 12181 – 12184. Pursuant to the ADA, a “public accommodation” includes “a terminal, depot, or other station used for specified public transportation.” See 42 U.S.C. § 12181(7)(G) (emphasis added). The ADA further defines “specified public transportation” as “transportation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis.” 42 U.S.C. § 12181(10) (emphasis added). Read in conjunction, these statutory provisions clearly establish that airplanes and terminals used for air travel are excluded from coverage under Title III of the ADA.

NOTE: Court followed the holdings of previous decisions finding that the clear and plan language of Title III makes clear that air carriers are not liable under the ADA for disability discrimination in the provision of services related to air transportation.

EXPERT TESTIMONY AND DUTY OF CARE

Rodriquez v. British Airways PLC., 2017 WL 6372733 (E.D. N.Y. 2017)

Claimant, an aircraft janitorial worker, brought personal injury action against airline asserting negligence related to her trip and fall while boarding an aircraft as part of her employment duties. The crux of the action centered on the height differential between the jet bridge floor and the aircraft floor. The Court proceeded to enter summary judgment for airline finding that the proffered expert affidavit was not admissible and that there was otherwise no duty upon airline to warn claimant of the height differential between the jet bridge floor and the aircraft floor.

As to the expert submission, the Court found the proffer opinion to needlessly complicate the dispute between the parties and improperly relied upon standards that were inapplicable to the circumstances at issue. The expert relied upon five standards: the General Duty Clause of the Occupational Safety and Health Administration (“OSHA”); an Advisory Circular on Aircraft Boarding Equipment promulgated by the Federal Aviation Administration (“FAA”); the American Society of Testing Materials' (“ASTM”) Standard Practice for Safe Walking Surfaces; the International Air Transport Association's (“IATA”) Safety Audit of Ground Operations Standards (“ISAGO”); and safety guidelines published by the American National Standards Institute (“ANSI”)). Each of these recommendations or standards, the expert contended compelled the conclusion that the height differential was unsafe. According to the Court, “what [the expert] has done is take a number of safety standards that are either inapplicable or, at best, hortatory and vague, and conclude that the height differential here was excessive. It is a conclusion looking for grounds, rather than grounds leading to a conclusion. This is a wholly inadequate basis on which to present his opinion to a finder of fact.”

The Court further held that as a matter of law there was no duty to warn as the height differential was open, obvious, and not an inherently dangerous condition. It noted that under New York law “a condition is open and obvious if it “could have been or should have been appreciated by the user or [if it] can be recognized as a matter of common sense.” The court relied on photographs as well as the claimant’s own testimony “that she had crossed hundreds, if not thousands, of jet bridges during the course of her employment at JFK. Five to six times a day, five days a week, for nearly twelve years, plaintiff encountered height differentials between jet bridge floors and aircraft doorways.”

PERSONAL INJURY/VENUE

Herd. V. Airbus SAS, 2017 WL 6504162 (C.D. Calif. 2017)

Airline worker and resident of Australia brought negligence and strict liability claims in California against manufacturers of aircraft and engine (France and England) alleging injury due to exposure to toxic fumes. Court granted defendants’ motion to dismiss finding Australia the more appropriate forum.

Court noted the standard governing forum non conveniens, i.e., that courts have broad discretion to decline jurisdiction in favor of a more convenient forum outside the United States where there is: 1) the existence of an adequate alternative forum, and 2) that the balance of private and public interest factors favors dismissal. The Court found that Australian courts are able to exercise jurisdiction over the parties with the claimant an Australian resident and citizen and Australia having a common law legal system with federal and state or territorial courts. Jurisdiction and remedies were available under Australian law. Further, the Court found that the balance of the private and public factors also supported dismissal. Of particular note was the fact that the plaintiff resided in Australia and that all of her medical providers and witnesses were also located in Australia. It was also noted that the evidence the Defendants would rely on is largely foreign as well with evidence relating to the alleged design defect in the Aircraft and engines is outside the United States; principally in Europe and Australia. Airbus's witnesses and evidence are in France, Germany, and Spain.

NOTE: The private and public factors looked to by courts in assessing a motion dismiss based on forum non conveniens include as to private factors: (1) the residence of the parties and the witnesses; (2) the forum's convenience to the litigants; (3) access to physical evidence and other sources of proof; (4) whether unwilling witnesses can be compelled to testify; (5) the cost of bringing witnesses to trial; (6) the enforceability of the judgment; and (7) all other practical problems that make trial of a case easy, expeditious and inexpensive. As to the public interest factors, they include (1) the local interest of lawsuit; (2) the court's familiarity with governing law; (3) burden on local courts and juries; (4) congestion in the court; and (5) the costs of resolving a dispute unrelated to this forum.

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