United States District Court, S.D. New York
September 30, 2004.
JEAN CLAUDE LEVY, SHERRY LEVY, ANABELLE LEVY and JACQUES LEVY, Plaintiffs,
DELTA AIRLINES, Defendant.
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
(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
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 France could meet their
daughter and new son.
On April 22, 2000, Delta sent a letter of apology to Levy. On
June 14, 2000 Delta sent transportation vouchers in the amount of
$200 each for Levy, Sherry, Anabelle and Jacques "as final
resolution for the problems you encountered traveling with us in
The allegations of wrongdoing against Delta relating to the
above matters are the basis of Count One of the complaint,
claiming negligence, and Count Two, claiming breach of contract.
Count Three of the complaint relates to the return trip from
Nice to New York on a Delta flight. The claim is that two flight
attendants took pictures of Levy's children. The complaint
alleges that this was done without the parents' knowledge or
permission. However, plaintiffs' Rule 56.1 Statement asserts that
Levy gave his consent conditioned upon being given copies of the
photographs. It is asserted in the Rule 56.1 Statement that the
flight attendants agreed to provide Levy with copies of the
pictures, but declined to furnish their names and addresses so
that Levy could follow up and obtain the copies. Levy assets in
his Memorandum of Law that he was concerned that the pictures would be used commercially. Levy never obtained copies
of the pictures. Levy asserts in his Memorandum of Law that he
still does not know what the pictures were used for.
The Levys complain that Delta has failed to honor discovery
requests, including requests for the depositions of the flight
attendants to determine if the pictures were used for commercial
purposes. There is some dispute about how to interpret notes of
various pretrial conferences held before Magistrate Judge Pitman.
The Levys assert that Judge Pitman ruled that the depositions
should be taken. Delta argues that the net effect of rulings by
the magistrate judge and of the late District Judge Allen
Schwartz was to deny the request for those depositions. The
matter is not entirely clear. But one thing is clear. Judge
Schwartz endorsed the letter from Delta's attorney dated December
23, 2002 so as to permit Delta to move for summary judgment.
After the death of Judge Schwartz, the case was assigned to the
undersigned, Judge Thomas P. Griesa. In reviewing the submissions
on the present motion, the judge noted that there was no
statement from Delta about taking the photographs or about what
was done with the photographs if they were taken. Delta relied
upon a legal argument under the Warsaw Convention in dealing with
the issue about the photographs. As will be described later, the Levys have no valid cause of
action regarding the alleged picture-taking, unless the pictures
were used for commercial purposes. See New York Civil Rights
Law §§ 50 and 51. The Court considered that it would be a simple
matter for Delta to determine whether or not the pictures had
been used commercially, and the Court requested that Delta make
such a determination. The Court was willing to take the
representation of Delta's lawyer that an inquiry had been made
and what the results of that inquiry were. Delta's lawyer has now
provided the Court with a statement that Delta has determined
that it has not used any photographs of the Levy children for
Breach of Contract Claim
Federal Preemption Under the Airline Deregulation Act of 1978
Federal statutes limit state-law claims against airlines. The
Airline Deregulation Act of 1978 ("ADA"), provides that:
a State, political subdivision of a State, or
political authority of at least 2 States may not
enact or enforce a law, regulation, or other
provision having the force and effect of law related
to a price, route, or service of an air carrier that
may provide air transportation under this subpart.
49 U.S.C. § 41713(b)(1). However, when Congress enacted the ADA it also left intact the
"savings clause" of the Federal Aviation Act of 1958 ("FAA"),
which preserved existing common law and statutory remedies. The
Nothing . . . in this chapter shall in any way
abridge or alter the remedies now existing at common
law or by statute, but the provisions of this chapter
are in addition to such remedies.
49 U.S.C.App. § 1506. See Morales v. Trans World Airlines,
504 U.S. 374, 378 (1992). Section 1506 was replaced by
49 U.S.C. § 40120 (c), which provides:
(c) Additional remedies. A remedy under this part
is in addition to any other remedies provided by law.
The Supreme Court has held that the ADA does not preempt
state-law based adjudication of routine breach-of-contract
claims, so long as courts confine themselves to enforcing the
parties' bargain. American Airlines, Inc. v. Wolens,
513 U.S. 219, 228 (1995). In Wolens, the plaintiffs brought an action
against American Airlines for breach of contract and violations
of the Illinois Consumer Fraud and Deceptive Business Practices
Act, seeking to enjoin the airline's retroactive modification of
its frequent flyer benefits program and seeking money damages.
The Supreme Court held that the Illinois Supreme Court erred in
allowing the plaintiffs' state law Consumer Fraud Act claims, but
affirmed the Illinois Supreme Court's holding permitting the
plaintiffs' breach of contract action to proceed. The Court held that the
terms and conditions airlines offer and passengers accept are
private obligations and thus do not amount to a state's enactment
or enforcement of the kind of law covered by the ADA's preemption
provision. 513 U.S. at 232. The Court further explained:
The ADA's preemption clause, [now
49 U.S.C. § 41713(b)(1)], read together with the FAA's saving
clause, stops States from imposing their own
substantive standards with respect to rates, routes,
or services, but not from affording relief to a party
who claims and proves that an airline dishonored a
term the airline itself stipulated. This distinction
between what the State dictates and what the airline
itself undertakes confines courts, in
breach-of-contract actions, to the parties' bargain,
with no enlargement or enhancement based on state
laws or policies external to the agreement.
513 U.S. at 232-33.
The Levys' breach of contract claim is thus not preempted by
the ADA since the Levys are attempting to enforce a private
agreement they entered into with Delta.
Merits of Breach of Contract Claim
In Count Two of the complaint, the Levys contend that Delta
failed to perform its contract with them by refusing to carry
them on the flight to Nice on April 17. Putting aside for the
moment the question of whether the Levys can recover on their theory of negligence, based on the alleged
misrepresentation to them about what was required for the child,
the question under Count One is whether Delta had a contractual
duty to carry the Levys on April 17 and failed to carry out that
It is clear beyond any question, and it is not disputed by the
Levys, that Jacques could not go on the flight without an
official travel document, which he did not have. The inevitable
conclusion is that Delta had no contractual duty to carry Jacques
without the proper travel document. Delta committed no breach of
contract by refusing to allow Jacques on the flight. The other
members of the family could have flown, of course, but
voluntarily remained with Jacques.
Delta had a published tariff which placed on passenger the
responsibility for obtaining necessary travel documents. Airlines
are permitted to "incorporate by reference in any ticket or other
written instrument any of the terms of the contract of carriage."
United States v. Wolens, 512 U.S. 219, 232 (1995). Such
incorporation is governed by federal regulation, which provides
each air carrier shall include on or with a ticket,
or other written instrument given to a passenger,
that embodies the contract of carriage and
incorporates terms by reference in that contract, a conspicuous notice
(a) Any terms incorporated by reference are part of
the contract, . . .
(b) The incorporated terms may include . . .
(2) Claim restrictions . . .
(4) Rules about reconfirmations, check-in times, and
refusal to carry. . . .
14 C.F.R. § 253.5.
As described earlier, Delta provided a notice that published
tariffs were incorporated by reference in the contract of
carriage. This means that Delta's Tariff Rule 45 was part of the
contract of carriage with the Levys. Under Tariff Rule 45, it was
the responsibility of the Levys to have the necessary travel
document for Jacques, and no liability attaches to Delta for
refusing to carry Jacques when he did not have a proper document.
The Levys contend that Delta committed another breach of
contract on April 18, when the Levys returned for their postponed
flight, but Delta did not provide seats on a Delta flight.
However, despite some temporary aggravation, the Delta tickets of
the Levys were able to be used on an Air France flight. The
circumstances do not give rise to a valid breach of contract
claim against Delta. Negligence
The ADA preempts state law tort claims when the claims are
"related to a price, route, or service of an air carrier.
49 U.S.C. § 41713(b)(1); Morales, 504 U.S. at 384; Rombom v.
United Air Lines, Inc., 867 F.Supp. 214, 221 (S.D.N.Y. 1994).
State law tort claims that relate to airline services "in too
tenuous, remote, or peripheral a manner" are not preempted by the
ADA. Morales, 504 U.S. at 390 (quoting Shaw v. Delta
Airlines, Inc., 463 U.S. 85, 100 n. 21 (1983)). Nor does the ADA
preempt state law tort claims related to airline service when the
underlying tortious conduct was not reasonably necessary to the
provision of the service. Rombom, 867 F.Supp. at 222.
Count One of the complaint alleges that Delta was negligent in
representing to the Levys that Jacques could travel with nothing
more than proof of birth. The Court rules that this claim is not
Merits of the Negligence Claim
For purposes of this motion, the Court will assume that the
representation was made as claimed by the Levys. If this occurred
there was a negligent misrepresentation. It was the responsibility of the Levys, both as a matter of
common sense and under Tariff Rule 45, to obtain for the child
the proper travel documents. Levy had no right to rely on a Delta
ticket agent in connection with this subject. In any event, the
Levys have shown no injury which would justify proceeding with
Count Two. There was a one-day delay, causing the Levys to miss a
party with their relatives and friends. There is no indication
whatever of any injury for which there can be recovery of
The Alleged Picture Taking
Count Three of the complaint alleges that the Levy children
suffered an invasion of their privacy when flight attendants took
their pictures on the return flight from Nice.
Under New York law, which applies, there is no common law right
of privacy. Messenger v. Gruner Jahr Printing and Publishing,
94 N.Y.2d 436, 441 (2000) (citing Roberson v. Rochester
Folding Box Co., 171 N.Y. 538 (1902)).
In response to Roberson, the New York Legislature enacted
Civil Rights Law §§ 50 and 51, which provide a limited statutory
right of privacy. Section 50 makes it a misdemeanor to use a
living person's "name or picture" for advertising or trade purposes "without having first obtained
the written consent of such person, or if a minor of his or her
parent or guardian." Section 51 provides:
Any person whose name, portrait, picture or voice is
used within this state for advertising purposes or
for the purposes of trade without the written consent
first obtained as above provided [in section 50] may
maintain an equitable action . . . to prevent and
restrain the use thereof; and may also sue and
recover damages for any injuries sustained by reason
of such use.
Count Three of the complaint alleges that Delta invaded the
privacy of the children by taking pictures of them without the
family's consent. Nothing is said about commercial use or §§ 50
and 51. Plaintiffs' Rule 56.1 Statement again merely alleges that
the taking of the pictures invaded the privacy of the children
and makes no claim about commercial use. On the issue of consent,
the Rule 56.1 Statement alleges that consent was given on the
condition that the Levys would receive copies of the pictures,
but that no such copies were received. In the Memorandum of Law
submitted on the present motion, Levy states that he does not
know what the pictures were used for. However, he asserts that in
pre-trial proceedings before a magistrate judge he requested the
depositions of the flight attendants to determine if the pictures
had been used for commercial purposes. In its motion to dismiss the complaint or for summary judgment,
Delta argues that the Warsaw Convention bars the invasion of
privacy claim, and that, in any event, New York law does not
provide a basis for such a claim.
The invasion of privacy claim asserted in Count Three presents
two issues. The first relates to the claim which is expressly
asserted in the complaint i.e., invasion of the children's
privacy by the taking of the pictures on the plane. The second
involves how to treat something which is not in the complaint,
but which is simply posed as a possibility i.e., the
possibility that the pictures were used for commercial purposes.
As to the first issue, there is no purpose in dealing with the
somewhat involved questions under the Warsaw Convention. It is
clear, as a matter of New York law, that under the Messenger
and Roberson cases cited above, there is no valid cause of
action for invasion of privacy based on the taking of the
children's pictures on the plane. This would be true even if the
parents' consent had not been given. But in the Rule 56.1
Statement, the Levys assert that consent was given, on
condition that the Levys would be given copies. The Levys assert
that copies were promised but not given. But this would not
amount to the kind of invasion of privacy which Count Three
attempts to assert. As to the matter of possible commercial usage of the pictures,
such usage, if without proper consent, would give rise to a cause
of action under New York Civil Rights Law §§ 50 and 51.
Here, it is appropriate to deal with Delta's contention that
the right of privacy claim is barred by the Warsaw Convention.
The Court concludes that the Convention would have no application
to a claim under §§ 50 and 51. The Warsaw Convention is basically
intended to apply to international flights. It certainly can
apply to an incident occurring on the plane or during embarking
or disembarking. See Warsaw Convention Article 17. But the use
of the pictures for advertising or other trade purposes would
presumably involve some activity at a Delta office or an
advertising agency. The flight attendants surely did not prepare
advertising copy on the plane. This means that a possible claim
under §§ 50 and 51 would not be within the scope of the Warsaw
Convention and that such a claim would not be precluded by that
But the question remains whether there is in this case any
viable claim under §§ 50 and 51. The complaint asserts no such
claim. No evidence of commercial usage of the pictures is
presented on the motion. Under these circumstances, it seemed
appropriate to the Court to simply ask Delta to determine if commercial use was made of the pictures. Inquiry was
made by Delta's lawyer and the response was in the negative.
Under these circumstances, it does not appear to the Court that
there is any basis to proceed further with a speculative theory
which now appears to be without factual basis.
For the foregoing reasons, the Court determines that there is
no triable issue of fact on any of the claims asserted in the
complaint. Delta's motion for summary judgment is granted. The
complaint is dismissed.
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