United States District Court, Southern District of New York
July 25, 1991
RAFAEL SASSOUNI, PLAINTIFF,
OLYMPIC AIRWAYS, DEFENDANTS.
The opinion of the court was delivered by: Haight, District Judge:
MEMORANDUM OPINION AND ORDER
This suit is an action by plaintiff to recover damages in the
amount of $2,000 allegedly resulting from an incident occurring
in relation to airline transportation furnished by defendant.
This action is before the court on defendant's motion to
dismiss for failure to state a claim pursuant to Fed.R.Civ.P.
The parties are substantially in agreement on the material
facts surrounding this case. Plaintiff, Rafael Sassouni, who
brings this action pro se, purchased an airline ticket from
defendant Olympic Airways ("Olympic"). The ticket provided for
travel from New York to Athens, Greece on April 8, 1987; from
Athens, to Tel Aviv, Israel on April 12, 1987 (the eve of
Passover); and from Tel Aviv to New York on April 24, 1987. As
plaintiff completed his April 8 and April 24 flights without
mishap, the only leg of the journey at issue here is the April
12 flight from Athens to Tel Aviv.
It is undisputed that after plaintiff arrived at the Athens
airport on April 12, 1987 he was denied boarding "due to
alleged overbooking of (his) flight." Defendant's Memorandum in
Support of Motion to Dismiss, 3. Plaintiff took the next
available Olympic flight to Tel Aviv which arrived the
following day, April 13 (Passover) after sundown. As an
Orthodox Jew, plaintiff was forbidden by Jewish law to travel
on Passover. Plaintiff's Pre-Trial Statement of Facts
("Pre-Trial Statement"), ¶ 4. Due to this delay in travel,
plaintiff alleges he suffered "great mental and emotional
distress." Pre-Trial Statement, ¶ 1(d).
Plaintiff commenced the present action in the Civil Court of
the City of New York, Small Claims Part on October 15, 1990.
Defendant removed the case from Small Claims Part to this court
on November 21, 1990 pursuant to the Foreign Sovereign
Immunities Act, 28 U.S.C. § 1441(d) which provides in part:
"(d) Any civil action brought in a State court
against a foreign state as defined in section
1603(a) of this title may be removed by the
foreign state to the district court of the United
States for the district and division embracing the
place where such action is pending."
Defendant now moves this Court to dismiss plaintiff's claim
as time barred.
Applicability of the Warsaw Convention
Defendant asserts that plaintiff's claim arises out of a
delay in transportation and as such is governed exclusively by
the provisions and limitations of the Warsaw Convention*fn1.
The Warsaw Convention is a treaty designed to establish
world-wide uniformity with regard to liability rules governing
aviation and to "limit air carriers' potential liability in the
event of accidents."
In re Air Disaster at Lockerbie, Scotland, supra, 928 F.2d at
1270. The Warsaw Convention applies "to all international
transportation of persons, baggage or goods performed by
aircraft for hire." Article 1(1).
International transportation for purposes of the Warsaw
"any transportation in which, according to the
contract made by the parties, the place of
departure and the place of destination, whether or
not there be a break in the transportation or a
transshipment, are situated either within the
territories of two High Contracting Parties, or
within the territory of a single High Contracting
Party, if there is an agreed stopping place within
a territory subject to the sovereignty,
suzerainty, mandate or authority of another power,
even though that power is not a party to this
convention. . . ." Article 1(2).
Plaintiff's transportation was unquestionably "international"
within the meaning of the Warsaw Convention, given that the
place of origin and the place of destination are in the United
States (New York), which is a High Contracting Party to the
Warsaw Convention, and Athens, Greece and Tel Aviv, Israel
comprised agreed stopping places within the territory of
another power. See generally Rabinowitz v. Scandinavian
Airlines, 741 F. Supp. 441, 443 (S.D.N.Y. 1990) (travel which
commenced and terminated in New York with stopping places in
Copenhagen, Moscow, Zurich, and Tel Aviv deemed "international"
according to provisions of Warsaw Convention).
Article 19 of the Warsaw Convention provides for liability on
the part of a carrier for "damage(s) occasioned by delay in the
transportation by air of passengers, baggage or goods." Article
24 of the Convention provides in relevant part:
"(1) 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.
(2) In the cases covered by article 17 the
provisions of the preceding paragraph shall also
apply . . ."
As Article 24 suggests, and numerous courts have held, if
plaintiff's cause of action is covered by Article 17, 18 or 19,
the Warsaw Convention provides the exclusive remedy for
In Husserl v. Swiss Air Transport Co., 388 F. Supp. 1238
(S.D.N.Y. 1975), the court, after outlining the history of the
Warsaw Convention, explained:
"It seems implicit in these indisputable
propositions that the purpose of the Warsaw System
and the intent of its drafters . . . must also
have been to establish the exclusive relief
available for damages resulting from an injury
sustained in international transportation.
Manifestly, if an injury subject to the
presumption and limitation of liability provisions
of the treaty could give rise to another claim not
subject to those provisions, uniformity with
respect to liability would not result and the
treaty's purpose would be defeated.
To avoid this latter problem, the drafters
explicitly made the conditions and limits
established by the Convention exclusively
applicable to certain actions for damages based on
the enumerated types of injury." Id. at 1244-45
In addition, the Second Circuit, in determining that the
Warsaw Convention preempts state law causes of action, recently
"The way the other parties have viewed the
Convention, its emphasis on uniformity, and the
need for a single, unified rule on such points as
the recoverability of punitive damages lead to the
belief that the Convention should be interpreted
as making all actions — other than those not based
on the Convention — exclusive under it." In re Air
Disaster at Lockerbie, Scotland, supra, 928 F.2d at
1274 (emphasis added).
Hence, if the plaintiff's cause of action is covered by Article
19, the Warsaw Convention provides the exclusive remedy for
plaintiff's claim. See also Boehringer-Mannheim Diagnostics,
Inc. v. Pan American World Airways, Inc., 737 F.2d 456
Cir. 1984), cert. den. 469 U.S. 1186
S.Ct. 951, 83 L.Ed.2d 959 (1985) (where Warsaw Convention
provides an independent cause of action it provides the
exclusive remedy, preempting other state or federal law
Very few courts have confronted the issue of the application
of Article 19 to being "bumped" from an airline flight.
However, those that have, hold uniformly that damages arising
from a delay in transportation caused by being bumped, are
governed by Article 19. See Mahaney v. Air France, 474 F. Supp. 532,
534 (S.D.N.Y. 1979) (passenger's claim of damages based
solely on delay experienced from being bumped arises under
Article 19 and is barred by Warsaw Convention's two-year
statute of limitations); Harpalani v. Air India, Inc.,
622 F. Supp. 69, 72-73 (N.D.Ill. 1985) (plaintiffs' claim seeking to
recover damages arising from delay in transportation caused by
being bumped from a flight, covered exclusively by Article 19
of the Warsaw Convention).
The only circuit court to this date to have ruled on this
exact issue is the Seventh Circuit. In Wolgel v. Mexicana
Airlines, 821 F.2d 442 (7th Cir. 1987), the court held that
Article 19 does not cover claims for damages arising from
actually being bumped, such as discriminatory bumping or
intentional infliction of emotional distress. But that court
implicitly held that Article 19 did cover claims for damages
incurred from the delay itself. Id. at 444.
In a 12(b)(6) motion, the Court must construe the complaint
in the light most favorable to the plaintiff. See Yoder v.
Ortho-molecular Nutrition Institute, Inc., 751 F.2d 555, 558
(2d Cir. 1985). Further, "(i)n determining the sufficiency of a
pro se complaint, it is now axiomatic that a court must
construe it liberally, applying less stringent standards than
when a plaintiff is represented by counsel." Robles v.
Coughlin, 725 F.2d 12, 15 (2d Cir. 1983) (citations omitted).
Reviewing the complaint, this Court must determine whether
plaintiff's claim arises out of a delay in transportation.
However, examination of plaintiff's complaint in the present
case is complicated by the fact that plaintiff's complaint
consists only of the succinct Small Claims summons which states
that "Rafael Sassouni, claimant, Does ask judgment in this
Court against you (Olympic) for $2000.00 together with costs
upon the following claim: action to recover monies arising out
of defective services rendered." Notwithstanding the brevity of
substance of plaintiff's complaint, plaintiff's additional
filed documents illuminate the essence of his claim. In his
Pre-trial Statement, plaintiff states that due to having to fly
to Israel at a later time, namely on Passover, plaintiff
suffered "great mental and emotional distress, as travel is
forbidden during a high holiday." ¶ 4. In his Reply to
defendant's motion to dismiss, plaintiff again asserts that
having "to be in transportation during Passover caus(ed) him
great emotional distress." ¶ 1(d).
Because these statements fall outside the scope of the
complaint, defendant's motion must be converted into one for
summary judgment under Rule 12(b) (last sentence), at least on
this ground for dismissal.
It would certainly appear that plaintiff's alleged damages
stemmed from the delay in transportation, not from the actual
bumping. Plaintiff does not state that the behavior of the gate
agents caused him distress or that the agents discriminated
against him. Instead, when plaintiff alleges he was caused
emotional distress, he consistently states that it arose from
being forced to travel on Passover — which was directly a
result of the delay in transportation. Plaintiff alleges in his
Reply that his "claim is based on Olympic's denial and refusal
to perform its part of the contract." ¶ 1. However, plaintiff's
attempt to make the claim sound in breach of contract terms
does not change the fact that the claim, however founded, arose
out of a delay in transportation. Regarding this issue, the
words of the court in Reiser v. Meloi World Travel Service, 18
Av.Cas. (CCH) 17,208 (S.D.N.Y. 1983) apply here:
"(W)hether plaintiffs' legal claims sound in
fraud, as plaintiffs argue, or contract, as the
Fourth Cause of Action explicitly states, there
can be no doubt that the
claims are covered by Article 19 of the Warsaw
Convention, and therefore arise under a treaty of
the United States." Id. at 17,210.
Accordingly, since plaintiff's claim stemmed from the delay
Olympic allegedly created, plaintiff's claim would seem to fall
within the scope of Article 19 and be governed exclusively by
the terms of the Warsaw Convention.
Statute of Limitations
If plaintiff's claim falls within Article 19 of the
Convention, Article 29 provides the statute of limitations. It
provides in part:
"(1) The right to damages shall be extinguished if
an action is not brought within 2 years, reckoned
from the date of arrival at the destination, or
from the date on which the aircraft ought to have
arrived, or from the date on which the
The date of termination of plaintiff's transportation was April
24, 1987, when he returned to New York. Applying liberally the
terms of the Warsaw Convention, the deadline for filing
plaintiff's claim would have been April 24, 1989. Therefore,
since plaintiff did not commence this action until October 15,
1990, the applicable statute of limitations had run out by the
time the complaint was filed*fn2
. Since, as noted above, the
Warsaw Convention provides the exclusive remedy for plaintiff's
claim and since plaintiff did not file his claim within the
statute of limitations provided for Warsaw Convention claims,
his action is time barred.
For the reasons stated, the Court converts defendant's motion
to dismiss under Rule 12(b)(6) into one for summary judgment
under Rule 56.
If so advised, plaintiff may file and serve additional papers
within forty-five (45) days of the date of this order.
Defendant may file and serve reply papers within ten (10) days
If no further submissions are made, the Court will decide the
motion on the present record.
It is SO ORDERED.