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LEVY v. DELTA AIRLINES

September 30, 2004.

JEAN CLAUDE LEVY, SHERRY LEVY, ANABELLE LEVY and JACQUES LEVY, Plaintiffs,
v.
DELTA AIRLINES, Defendant.



The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge

OPINION

Plaintiffs are Jean-Claude Levy, his wife, Sherry Levy, and their children Anabelle and Jacques. They are suing Delta Airlines, Inc. claiming various wrongs in connection with a trip to France.

Delta moves to dismiss pursuant to Rule 12(b)(6) and for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

  Defendant's motion for summary judgment is granted.

  Facts

  Prior to April 17, 2000 Jean Claude Levy purchased tickets from Delta for himself and his family for a trip to Nice, France. It is alleged that Levy asked an agent of Delta what papers were needed for a flight to France, and that, upon hearing that Levy was bringing a three-month old son born in the United States, the Delta agent said that only a birth certificate or other proof of birth would be needed. For purposes of this motion, Delta does not dispute these allegations.

  The Levys arrived at the Delta check-in counter on April 17, 2001. A Delta supervisor, Alina Zarian, refused to allow the infant son, Jacques, on the plane because he did not have a passport, or any other official documentation for travel to France. It was necessary for the family to reschedule their trip for the next day, in order to allow proper documentation to be obtained for Jacques.

  In their Rule 56.1 statement, the Levys assert that the plane was overbooked, and in their Memorandum of Law the Levys argue that it was not Jacques's lack of a passport but the overbooking which was the reason for not allowing Jacques to travel. This contention is denied by Delta.

  In connection with the issue about requiring travel documents for Jacques, Delta has provided the Court with a form of passenger ticket and a form of a "passenger ticket insert." Delta asserts that not only the ticket but also the ticket insert was provided to each Delta ticketed passenger in and about April 2000. The ticket insert included a "Notice of Incorporated Terms," which stated:
Foreign air transportation is governed by applicable tariffs on file with the U.S. and other governments, which tariffs are herein incorporated by law and made part of the contract of carriage.
During April 2000 Delta had in effect Tariff Rule 45, which provided

  (B) PASSPORTS AND VISAS

 
(1) EACH PASSENGER DESIRING TRANSPORTATION ACROSS ANY INTERNATIONAL BOUNDARY WILL BE RESPONSIBLE FOR OBTAINING ALL NECESSARY TRAVEL DOCUMENTS AND FOR COMPLYING WITH ALL GOVERNMENT TRAVEL REQUESTS.
. . .
(D) GOVERNMENT REGULATION
NO LIABILITY SHALL ATTACH TO CARRIER IF CARRIER IN GOOD FAITH DETERMINES THAT WHAT IT UNDERSTANDS TO BE APPLICABLE LAW, GOVERNMENT REGULATION, DEMAND, ORDER OR REQUIREMENT, REQUIRES THAT IT REFUSE AND IT DOES REFUSE TO CARRY A PASSENGER.
  After refusing to transport the Levys on April 17, Delta agreed to put them on the flight to Nice the following evening, if they obtained the proper travel documents for Jacques. The note entered by Zarian into Delta's electronic passenger tracking system confirms this. "OK TO TRVL 18APR IF PSGR PRESENTS A LETTER FROM THE FRENCH GOVERNMENT. 17 APR/JFK S.A.S. A.ZARIAN/LF."

  The Levys arrived at the airport on April 18, 2000, apparently with a lawful travel document for Jacques. However, according to the Levys, Delta did not have seats for them on the Delta plane, but referred the Levys to the Air France ticket counter, where they were left to fend for themselves. The Levys allege that Air France, after some aggravation to the Levys, finally honored their Delta tickets and gave them seats on an Air France flight to Nice, which the Levys took.

  There is a difference between the Levy's account of the events on April 18 and the account given by Delta. Delta's records reflect that the Levys were, in fact, booked on Delta flight number 82 on April 18. In addition, Delta's Zarian has testified in her deposition that difficulties in seating the Levys on April 18 resulted from complying with a regulation requiring infants to have access to oxygen masks. Because the airplane only provided for one additional oxygen mask for an infant per row of seats, both Levy infants could not be seated in the same row.

  The Levys allege that, due to fault on the part of Delta, their trip to France was cut short and they missed a party, which had been scheduled so that their family in ...


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