The opinion of the court was delivered by: PIERCE
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. § 1374(b) (1976))
("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
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.
Defendant contends that the present action is governed by the Warsaw Convention which contains a two year statute of limitations.
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.
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).
The Convention may set the limits on a carrier's liability in actions involving certain aspects of that relationship, Id.,
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.
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.
"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.
Accordingly, defendant's motion to dismiss plaintiff's action as being ...