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October 5, 1992


The opinion of the court was delivered by: LEONARD B. SAND


 Defendant brings this motion for judgment on the pleadings pursuant to Rule 12(c), or alternatively, for summary judgment under Rule 56(b) dismissing the case. For the reasons stated below, the Court grants defendant's summary judgment motion in part, and denies defendant's summary judgment motion in part.

 Factual Background

 The relevant facts can be summarized briefly. Plaintiffs Poovaiah and Lina Chendrimada bring this action against defendant Air India for injuries arising out of a trip from New York to Bombay, India. Plaintiffs were scheduled to fly on Air India flight 110 from New York to Delhi, India on December 23, 1988, and then on to Bombay. This flight was cancelled due to a bomb scare, and plaintiffs were rescheduled to fly to Bombay on December 24, 1988. *fn1"

 Plaintiffs departed from New York on December 24, 1988 at approximately 8:00 p.m., and arrived at about midnight on December 25, 1988 for a scheduled stop in Delhi, India. Due to weather conditions in Delhi, specifically heavy fog, the flight to Bombay was delayed for eleven and one-half hours. Plaintiffs argue that the weather should not have grounded the plane for that long, although they suggest no other reason for the delay and do not refute defendant's contention that six other planes were also grounded due to the fog. During this delay, plaintiffs allege that they were not allowed to leave the plane to go into the terminal, nor were they given anything to eat. Defendant contends that the passengers were free to leave the plane, but that the crew advised the passengers to remain on board because conditions in the terminal were crowded, unsafe, and unsanitary due to the grounding of six other wide-bodied planes. Plaintiffs further argue that defendant's actions in keeping them on board the plane were wilful and unjustified.

 Plaintiffs aver that they were physically injured by being confined on the plane for eleven and one half hours without food. Defendants argue that plaintiffs did not suffer any physical injury and plaintiffs' only injury, if any, was for emotional distress.


 Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate only where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. In determining whether to grant a motion for summary judgment, the Court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court must view the facts in the light most favorable to the non-moving party, and must resolve all ambiguities and draw all inferences against the moving party. Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991).

 Before turning to the allegations of the complaint, a few preliminary remarks must be made about the nature of this type of lawsuit.

 The Warsaw Convention, which defines and limits an airline passenger's rights to sue an international carrier, is a multilateral treaty to which the United States has been a signatory since 1934. See Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, reprinted in 49 U.S.C.App. § 1502 note (1988). The purpose of the treaty is "to establish uniformity in the aviation industry with regard to 'the procedure for dealing with claims arising out of international transportation' . . . [and] to limit air carriers' potential liability in the event of accidents." In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1270 (2d Cir. 1991), (quoting Lowenfield & Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497, 498-499 (1967)), cert. denied, Rein v. Pan American World Airways, Inc., 112 S. Ct. 331 (1991).

 By its terms, the Warsaw Convention is applicable to "all international transportation of persons, baggage, or goods performed by aircraft for hire." Warsaw Convention, Article 1. Liability for personal injury to passengers is governed by Article 17 of the Convention, which reads,

 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.

 A number of cases brought under the Convention and applying this provision are relevant to the resolution of the motion before the Court. They will be discussed briefly here, and then referred to further when the allegations of the complaint are addressed.

 In Lockerbie, the Second Circuit held that the Warsaw Convention "should be interpreted as making all actions -- other than those not based on the Convention--exclusive under it," 928 F.2d at 1274. This action is based on the Convention, as the parties acknowledge, because the plaintiffs claim a bodily injury on board the aircraft. ...

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