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United States District Court, S.D. New York

September 30, 2004.


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 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.


  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



. . .
  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 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 April."

  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 commercial purposes.


  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 FAA provided:
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 duty.

  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 that

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 that:
(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 preempted.

  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 damages.

  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 Convention.

  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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