The Convention provides the exclusive remedy for. conduct which falls
within the scope of its provisions. El Al Israel Airlines, Ltd. v. Tsui
Yuan Tseng, 525 U.S. 155, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999). There
are three types of activities to which liability attaches under the
Convention. These are claims based on personal injuries (Article 17),
lost or damaged luggage (Article 18), and damages due to delays in
transportation (Article 19). Article 24 of the Convention provides that,
"[i]n the carriage of "passengers and baggage, any action for damages,
however founded, can only be brought subject to the conditions and
limitations set out in this Convention." (Emphasis added.)
Article 19 of the Convention provides that "The carrier shall be liable
for damage occasioned by delay in the transportation by air of passengers
baggage, or goods." This provision has generally been interpreted to
apply to claims arising from the "bumping" of passengers. See, e.g.,
Yanovskiy v. Air France, 1998 WL 305648 (S.D.N.Y 1998) However there is a
line of cases originating in the Seventh Circuit which holds that Article
19 only applies to claims for damages flowing from the delay caused by
bumping, and does not apply to claims based on the act of "bumping" it
self Wolgel v. Mexicana Airlines, 821 F.2d 442 (7th Cir. 1987). Under
this view, a cause of action for "bumping" based upon an improper motive
(such as racial discrimination) may be maintained because it is not
"damage occasioned by delay in the transportation by air of passengers
baggage goods" within the meaning of Article 19.
Wolgel predates the amendments to Article 24 that adopted the
above-quoted language establishing that "any action for damages, however
founded, can only be brought subject to the conditions and limitations
set out in this convention." In light of these changes, and the Supreme
Court decision in Tseng, which holds that the Convention preempts state
and federal laws based on conduct which falls within the "substantive
scope" of its Articles, see Cruz v. American Airlines, Inc., 193 F.3d 526,
531 (D.C.Cir. 1999) (quoting Tseng, 525 U.S. at 172, 119 S.Ct. 662), it
appears as though the holding in Wolgel rests upon an unduly restrictive
view of the Convention's preemptive effects.
After the Supreme Court decision in Tseng, it is clear that the
application of the Convention is not to be accomplished by a miserly
parsing of its language. See Brandt v. American Airlines, 2000 WL 288393,
*6 (N.D.Cal. 2000). Instead, the relevant inquiry is whether or not the
particular cause of action is based upon conduct which falls within the
"substantive scope" of the Convention. Tseng, 525 U.S. at 172, 119 S.Ct.
Under this analysis, the plaintiffs' claims based on the alleged
"discriminatory bumping" in this case are within the "substantive scope"
of Article 19. Article 19 applies to "delay in the transportation by air
of passengers." It is clear that "bumping" falls within the substantive
scope of this provision. See Yanovskiy, 1998 WL 305648 at *3 (citing
cases). Plaintiffs' arguments, based upon the distinction between
"bumping" and "discriminatory bumping," fails because both types of
action predicated upon the same conduct "bumping" — which
admittedly falls within the substantive scope of Article 19. This is so
because both types of claims are based upon the "delay" of passengers.
As provided in Article 24, an action for "bumping" (discriminatory or
otherwise), "however founded, can only be brought subject to the
conditions and limitations" provided under the Convention, and
plaintiffs' claims must be dismissed because they were not commenced
within the two-year statute of limitations provided for under the
Therefore, it is hereby
1. Defendants' motion for judgment on the pleadings is GRANTED; and
2. The complaint is DISMISSED.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.