The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge
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
Delta moves to dismiss pursuant to Rule 12(b)(6) and for
summary judgment under Rule 56 of the Federal Rules of Civil
Defendant's motion for summary judgment is granted.
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
(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
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 ...