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MAHANEY v. AIR FRANCE

UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK


June 28, 1979

Colleen MAHANEY, Plaintiff,
v.
AIR FRANCE, Defendant

The opinion of the court was delivered by: PIERCE

OPINION AND ORDER

Plaintiff Colleen Mahaney brings this action claiming that she was denied access to an airline flight operated by defendant Air France between New York and Puerto Vallarta, Mexico, despite the fact that she held a confirmed reservation. She alleges that this "bumping" by the airline violated section 404(b) of the Federal Aviation Act (49 U.S.C. ยง 1374(b) (1976)) *fn1" ("Act") and seeks compensatory damages of $ 50 and punitive damages of $ 250,000.

 Her complaint charges that her vacation departure was delayed 24 hours; she was subjected to harsh treatment by Air France employees; and she was denied boarding "to make room for the President of Aeriospatile, a major French aircraft producer and for the Executive Vice President of Club Mediterranee in New York and their parties." (Complaint PP 10, 11 & 12). She concludes that the defendant overbooked the flight without informing her, gave "an undue or unreasonable preference to others" and subjected her to "unjust discrimination" in violation of the Act.

 The complaint was filed on December 15, 1977; the alleged incident occurred on December 20, 1974.

 While the defendant admits that Mahaney was denied access to the flight, it moves to dismiss on the ground that the two year statute of limitations under the Warsaw Convention *fn2" bars the action. Plaintiff cross-moves for summary judgment contending that the defendant's admission of the "bumping" incident establishes a prima facie violation of the Act.

 Statute of Limitations

 Defendant contends that the present action is governed by the Warsaw Convention which contains a two year statute of limitations. *fn3" Article 19 of the Convention states that: "The carrier shall be liable for damage occasioned by delay in the transportation by air of passengers, baggage, or goods." Article 24(1) of the Convention provides some exclusivity of remedy as follows: "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."

 Defendant argues that "bumping" falls within the scope of Article 19 since it constitutes a "delay in the transportation by air of passengers." Defendant further contends that even though plaintiff may "found" her action on discrimination, it is nevertheless occasioned by delay and therefore is governed by the Warsaw Convention with its two year statute of limitations.

 It has been recognized that the Warsaw Convention establishes a uniform system of liability rules to govern the fundamental aspects of international air disaster litigation. *fn4" See Benjamins v. British European Airways, 572 F.2d 913, 917-18 (2d Cir. 1978), cert. denied, 439 U.S. 1114, 99 S. Ct. 1016, 59 L. Ed. 2d 72 (1979); Reed v. Wiser, 555 F.2d 1079, 1092 (2d Cir.), Cert. denied, 434 U.S. 922, 98 S. Ct. 399, 54 L. Ed. 2d 279 (1977). However, it has also been held that the Convention does not " "exclusively regulate' the relationship between passenger and carrier on an international flight." Husserl v. Swiss Air Transport Co., 351 F.Supp. 702, 706 (S.D.N.Y.1972), aff'd per curiam, 485 F.2d 1240 (2d Cir. 1973). *fn5" The Convention may set the limits on a carrier's liability in actions involving certain aspects of that relationship, Id., *fn6" and may establish a cause of action, Benjamins v. British European Airways, 572 F.2d 913, 919 (2d Cir. 1978), cert. denied, 439 U.S. 1114, 99 S. Ct. 1016, 59 L. Ed. 2d 72 (1979).

 The Court agrees with defendant that if plaintiff were to claim damages based solely on any delay she experienced, the complaint would be barred by the two year statute of limitations. In this context, plaintiff's complaint states: "As a result of the late arrival, plaintiff was required to arrange her own land transportation . . . by renting a van for $ 50 . . . ." (Complaint P 10) (emphasis added). To the extent that plaintiff seeks to recover from defendant for the costs of renting a van, she is time-barred from asserting and proving that claim at trial.

 However, plaintiff's complaint does not only assert damages "occasioned by delay," plaintiff also alleges that she "was subjected to harsh treatment by Air France employees" (Complaint P 12), and was "subjected . . . to unjust discrimination or undue or unreasonable preference or disadvantage," (Complaint P 13). It is settled that section 404(b) of the Federal Aviation Act provides a private cause of action for bumping in a discriminatory fashion. *fn7" See Nader v. Allegheny Airlines, Inc., 167 U.S.App.D.C. 350, 360, 512 F.2d 527, 537 (1975), rev'd on other grounds, 426 U.S. 290, 96 S. Ct. 1978, 48 L. Ed. 2d 643 (1976); Fitzgerald v. Pan American World Airways, 229 F.2d 499, 501 (2d Cir. 1956). "In order to succeed in an action under this section, it must be alleged . . . and proven that the plaintiff's right to fair, equal and nondiscriminatory treatment has been violated." Mortimer v. Delta Air Lines, 302 F.Supp. 276, 281 (N.D.Ill.1969). Plaintiff in this case has alleged such a claim. *fn8"

 "Purely nominal compensatory damages are available, including an award for humiliation and hurt feelings when the facts warrant, and the extent and nature of the affront are established." Archibald v. Pan American World Airways, Inc., 460 F.2d 14, 16 (9th Cir. 1972); Accord, Flores v. Pan American World Airways, 259 F.Supp. 402, 404 (D.P.R.1966). In this case, plaintiff's ad damnum request for $ 50 compensatory damages amounts to a request for nominal damages. Cf. Smith v. Piedmont Aviation, Inc., 567 F.2d 290, 292 (5th Cir. 1978) (Airline agent's reference to plaintiff's " "thick head,' a reaction obviously provoked by Smith's repeated requests for a charter flight . . . might support an award for nominal damages"; plaintiff awarded $ 1,051.80 compensatory damages).

 Punitive damages may also be recovered under the Act. Wills v. Trans World Airlines, Inc., 200 F.Supp. 360, 367 (S.D.Cal.1961); Accord, Archibald v. Pan American World Airways, Inc., 460 F.2d 14, 16 (9th Cir. 1972); see Nader v. Allegheny Airlines, Inc., 167 U.S.App.D.C. 350, 372, 512 F.2d 527, 549 (1975), rev'd on other grounds, 426 U.S. 290, 96 S. Ct. 1978, 48 L. Ed. 2d 643 (1976). Here, plaintiff seeks $ 250,000 in punitive damages.

 Since plaintiff claims that she has brought her action under the Federal Aviation Act which permits such a cause of action, the Court finds the statute of limitations under the Warsaw Convention to be inapplicable. *fn9" Accordingly, defendant's motion to dismiss plaintiff's action as being time-barred under the two year statute of limitations of the Warsaw Convention is denied.

 Summary Judgment

 Plaintiff contends that defendant's acknowledgement of the bumping incident constitutes a prima facie case of discrimination in violation of section 404(b) of the Act. Hence, she concludes that she is entitled to summary judgment as a matter of law.

 It is now axiomatic that summary judgment may be granted only when there are no genuine issues of material fact which need be determined at trial. Fed.R.Civ.P. 56(c); see Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). On such motions, the pleadings and affidavits must be construed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962).

 While defendant does not deny the fact that Mahaney was denied access to an oversubscribed flight, "the practice of overbooking does not Per se give rise to an actionable section 404(b) violation." Nader v. Allegheny Airlines, Inc., 167 U.S.App.D.C. 350, 360-61, 512 F.2d 527, 537-38 (1975), rev'd on other grounds, 426 U.S. 290, 96 S. Ct. 1978, 48 L. Ed. 2d 643 (1976).

 

"Some overselling is an economic necessity for an airline in view of inevitable cancellations and no-shows. However, when a flight is thus oversold, the airline must fill the plane in a reasonable and just manner. . . . Bumping which is outwardly discriminatory or preferential may be legitimated by proof that the airline adhered to its established policy and that the policy is reasonable." Archibald v. Pan American World Airways, Inc., 460 F.2d 14, 16 (9th Cir. 1972). *fn10"

 

To establish that a preference or discrimination has occurred, it suffices that "(t)he passenger is able to prove that he possessed a confirmed reservation and a resultant right to a seat, and that this priority was not honored." Id. at 17. In the present case, plaintiff has not shown that defendant failed to honor her priority. *fn11" See Nader v. Allegheny Airlines, Inc., 167 U.S.App.D.C. 350, 361, 512 F.2d 527, 538 (1975), rev'd on other grounds, 426 U.S. 290, 96 S. Ct. 1978, 48 L. Ed. 2d 643 (1976).

 

In addition, defendant's answer denies any discriminatory or unreasonable boarding denial. Defendant asserts that the tour operator, Club Mediterranee, caused the overbooking. Plaintiff replies that Club Mediterranee was an agent of defendant; defendant denies any agency relationship. Clearly, there are disputed issues of fact.

 

Finally, even if unreasonable or discriminatory denial of access were demonstrated, punitive damages may only be awarded upon proof that the action of the airline was "wanton, oppressive or malicious." Karp v. North Central Air Lines, Inc., 583 F.2d 364, 366 (7th Cir. 1978). "(M)ere inadvertence or even gross negligence will not suffice to support an award of punitive damages." Nader v. Allegheny Airlines, Inc., 167 U.S.App.D.C. 350, 372, 512 F.2d 527, 549 (1975), rev'd on other grounds, 426 U.S. 290, 96 S. Ct. 1978, 48 L. Ed. 2d 643 (1976). The Court cannot say that, as a matter of law, the facts of this case, as thus far presented in the parties' papers, indicate "wanton, oppressive, or malicious" conduct by the carrier. Further, since significant factual questions determinative of liability remain unanswered, plaintiff's motion for summary judgment must be denied.

 

Conclusion

 

For the foregoing reasons, defendant's motion to dismiss and plaintiff's motion for summary judgment are hereby denied.

 

SO ORDERED.


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