United States District Court, S.D. New York
November 22, 2004.
MICHEL PARADIS, Plaintiff,
GHANA AIRWAYS LIMITED Defendant.
The opinion of the court was delivered by: SIDNEY STEIN, District Judge
OPINION & ORDER
Michel Paradis, acting pro se, brings this New York common
law breach of contract action to recover losses that he and his
traveling companions suffered when returning to New York from
Sierra Leone. Specifically, he seeks compensation from Ghana
Airways Limited for damages stemming from its cancellation of his
flight. The airline has moved to dismiss the complaint,
contending that the Montreal Convention preempts this cause of
action and that Paradis lacks standing to pursue damages on
behalf of his companions. The motion to dismiss the complaint is
granted because the Montreal Convention and its predecessor, the
Warsaw Convention, both preempt state law claims based on delay
in air transportation.
The facts as alleged in the complaint are as follows: Paradis
coordinated a trip to Sierra Leone for his law school student
organization, Universal Jurisdiction, which provides volunteer
legal services in developing countries. (Am. Compl. ¶¶ 8, 9). On
April 29, 2004, Paradis purchased round-trip tickets for himself
and four other members of Universal Jurisdiction to travel on
Ghana Airways between New York City and Freetown, Sierra Leone,
departing from New York on May 29, 2004 and returning from Sierra
Leone three weeks later, on June 18, 2004. (Am. Compl. ¶ 11). The group's itinerary
between New York and Freetown included a connection in Accra,
Ghana during both the departing and the returning trips. (Am.
Compl. ¶¶ 11-12).
When in Sierra Leone, Paradis and his companions confirmed
their return flight two days before their scheduled departure.
(Am. Compl. ¶ 18). They went to the airport on Friday, June 18,
arriving at around 12:00 p.m. for their 3:00 p.m. flight to
Accra. (Am. Compl. ¶¶ 12, 19). At approximately 4:15 p.m. an
hour and fifteen minutes after the scheduled departure time an
announcement was made that the flight had been cancelled. (Am.
Compl. ¶¶ 12, 25). Ghana Airways had no ticket desks at the
airport, but its staff informed Paradis there were no other
flights leaving that day and that he should make arrangements
with the Ghana Airways office in Freetown the next business day.
(Am. Compl. ¶¶ 20, 27).
The group left the airport and arrived back in Freetown at
around 5:00 p.m. (Am. Compl. ¶ 28). Because members of the group
were anxious to return to the United States for various prior
commitments, including summer employment, a bar examination
review course and mandatory meetings for organizations (Am.
Compl. ¶¶ 48-51), Paradis made a reservation with another air
carrier, Astreaus Airways, for seats on a flight that would leave
Sierra Leone at 10:30 that same night, Friday June 18, and fly to
Gatwick Airport in England. (Am. Compl. ¶ 31). Paradis searched
the internet for flights from Gatwick to New York and learned
that the group would most likely be able to acquire tickets for
that leg upon arrival at Gatwick. (Am. Compl. ¶¶ 31-32, 56-57).
Paradis then called the Ghana Airways office in New York and
inquired about later Ghana Airways flights out of Sierra Leone.
(Am. Compl. ¶ 30). The agent in New York claimed to be unaware of the cancellation of Paradis' flight.
(Am. Compl. ¶ 30). Paradis "was given no assurances of subsequent
flight availability and was told to take up the matter with the
GHANA AIRWAYS office in Freetown, Sierra Leone, which at [that]
hour on a Friday was closed." (Am. Compl. at ¶ 30). Paradis'
conversation with the agent then shifted to how much Ghana
Airways would pay to compensate the group for the cost of
securing transportation on other carriers. (Am. Compl. ¶ 32). The
agent allegedly refused to offer anything more than $559 per
ticket, one-half the original ticket price and substantially less
than the approximately $1,500 per person total that Paradis
projected it would cost to purchase tickets for the Astreaus
Airways flight to Gatwick and another flight from Gatwick to New
York. (Am. Compl. ¶¶ 32, 34). In the context of that discussion
about reimbursement for alternative flight arrangements, the
agent allegedly told Paradis that "finding a way back to New York
was `your problem.'" (Am. Compl. ¶ 42).
Paradis and his companions feared being stranded if they spent
their remaining cash on accommodations while waiting for Ghana
Airways' next flight, scheduled for the following Friday, to
leave, especially because they did not have guaranteed seats.
(Am. Compl. ¶ 47). Consequently, they purchased the tickets
Paradis had reserved on Astreaus Airways and left Sierra Leone
later that same night, June 18. (Am. Compl. ¶¶ 53, 55). Upon his
return to the United States, Paradis exerted extensive, albeit
unsuccessful, efforts to negotiate a satisfactory settlement with
Ghana Airways for the out-of-pocket losses the group suffered as
a result of the cancelled flight. (Am. Compl. ¶¶ 59-98).
Within six weeks of his arrival back in the New York, Paradis
brought suit in New York Supreme Court against Ghana Airways for
breach of contract pursuant to New York law and for damages
occasioned by delay pursuant to the Warsaw Convention. (See
generally Missing Text exhibits, or other papers submitted in conjunction with the
motion. See Friedl v. City of New York, 210 F.3d 79, 83-84
(2d Cir. 2000).
The complaint need only provide "a short and plain statement of
the claim showing that the pleader is entitled to relief."
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S. Ct. 992,
152 L. Ed. 2d 1 (2002) (quoting Fed.R. Civ. P. 8(a)(2)). The
pleadings drafted by pro se litigants are held to even "less
stringent standards than formal pleadings drafted by
lawyers . . ." and a court "`must construe the complaint
liberally' and `interpret [it] to raise the strongest arguments
that [it] suggest[s].'" Haines v. Kerner, 404 U.S. 519, 520,
92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); see also Soto v. Waker,
44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir. 1994)).*fn2
Defendant's Arguments: Preemption and Standing
Ghana Airways seeks dismissal of the complaint on two grounds,
namely that Paradis' state law claim is preempted by the treaty
popularly known as the Montreal Convention*fn3 and that he
lacks standing to pursue relief for damages incurred by his
In November of 2003, before any of the events involved in this
litigation, the Montreal Convention entered into force in the
United States, superceding a prior air carriage treaty commonly known as the Warsaw Convention.*fn4 See Ehrlich
v. American Airlines, 360 F.3d 366, 371 & n. 4 (2d Cir. 2004).
The parties disagree about which treaty applies to this action.
The airline urges that the Montreal Convention governs, whereas
Paradis contends that the Warsaw Convention serves as the
applicable law, because the contract between the parties so
provided. (See Am. Compl. Ex. B).
The key provision of whichever Convention applies is its
statement of preemptive effect. Article 24(1) of the Warsaw
Convention states that "[i]n the carriage of passengers and
baggage, any action for damages, however founded, can only be
brought subject to the conditions and limits set out in this
convention." That version of Article 24(1) derived from an
amendment to the Warsaw Convention generally referred to as the
Montreal Protocol.*fn5 The Montreal Convention, which later
replaced the Warsaw Convention entirely, offers in its Article 29
similar language to that of the Montreal Protocol: "In the
carriage of passengers, baggage and cargo, any action for
damages, however founded, whether under this Convention or in
contract or in tort or otherwise, can only be brought subject to
the conditions and such limits of liability as are set out in
this Convention. . . ."
Defendant posits that the Montreal Convention should apply
because it was already in effect at the time of the events at
issue. See Ehrlich, 360 F.3d at 371. Plaintiff contends that
the Warsaw Convention is the applicable treaty, because the
contract on the ticket invoked the Warsaw Convention rather than the Montreal Convention.
Nevertheless, the Court need not determine which convention
applies, because they have substantially the same preemptive
effect; Article 29 of the Montreal Convention simply clarified
the language of the Montreal Protocol's amendment to Article
24(1) of the Warsaw Convention. See Article-by-Article Analysis
of the Convention for the Unification of Certain Rules for
International Carriage by Air Done at Montreal May 28, 1999, S.
Treaty Doc. No 106-45, 1999 WL 33292734 (2000) (describing
Article 29 of the Montreal Convention as having been "taken from"
Montreal Protocol No. 4). Here, the preemptive effect is
identical regardless of whether the Montreal Convention or the
Warsaw Convention (together, "the Conventions") applies; thus,
the Court need not decide which Convention controls.
The Conventions preempt all state law claims within their
scope. See Shah v. Pan Am World Servs., Inc., 148 F.3d 84,
97-98 (2d Cir. 1998); Fishman v. Delta Air Lines, Inc.,
132 F.3d 138, 141 (2d Cir. 1998); see also El Al Israel Airlines v.
Tseng, 525 U.S. 155, 176, 119 S. Ct. 662, 142 L. Ed. 2d 576
(1999) (holding that the Warsaw Convention preempts a state law
claim against an airline for injury even though the circumstances
did not satisfy the Convention's conditions for imposing
liability). Paradis brings a state law claim for relief, drawing
a distinction between cases of mere delay in travel that the
Conventions cover see Warsaw Convention Article 19 ("The
carrier shall be liable for damage occasioned by delay in the
transportation by air of passengers, baggage or goods); Montreal
Convention Article 19 ("The carrier is liable for damage
occasioned by delay in the carriage by air of passengers, baggage
or cargo.") and cases of contract non-performance to which
state law applies. He contends that the Conventions regulate the terms of carriage
by air, but that this case is not covered by the Conventions
because it involves the failure to so carry. Nevertheless, the
facts, as alleged, fail to state a claim for relief that escapes
the preemptive effect of the Conventions. Paradis reacted to a
delay by immediately procuring substitute transportation and
demanding reimbursement from the airline. A passenger cannot
convert a mere delay into contractual non-performance by choosing
to obtain more punctual conveyance. See Fields, 2000 U.S.
Dist. LEXIS 9397, at * 13 ("Plaintiff's attempt to make the claim
sound in breach of contract terms does not change the fact that
the claim, however founded, arose out of a delay in
transportation.") (quoting Sassouni v. Olympic Airways,
769 F. Supp. 537, 540-41 (S.D.N.Y. 1991)). Although the group allegedly
"feared being stranded" (Am. Compl. at ¶ 47) and had various
presumably bona fide reasons for needing to return to the United
States instanter, Ghana Airways had not failed to perform its
contract obligations at the time the group left Sierra Leone.
The contract on the ticket did not require Ghana Airways to
provide prompt transportation. Rather, the contract read, in
pertinent part, as follows:
Carrier undertakes to use its best efforts to carry
the passenger and baggage with reasonable dispatch.
Times shown in timetables or elsewhere are not
guaranteed and form no part of this contract. Carrier
may without notice substitute alternate carriers or
aircraft, and may alter or omit stopping places shown
on the ticket in case of necessity. Schedules are
subject to change without notice. Carrier assumes no
responsibility for making connections.
(Am. Compl. Ex. B). After cancellation of the Ghana Airways
flight, Paradis decided to book a flight with a different carrier
that would leave within several hours. Ghana Airways did not have
the opportunity to fulfill its contractual obligation; failure to provide a substitute airplane within several hours of
cancellation is not a failure to exercise "best efforts to carry
the passenger . . . with reasonable dispatch."*fn6
Plaintiff contends that in addition to failing to perform its
obligations pursuant to the contract, the carrier "repudiated any
future performance" when its agent referred to Paradis' travel
complications as "your problem."*fn7 (Mem. of Law in Opp. to
Def.'s Mot. to Dismiss, Dated Oct. 15, 2004 at 1). Pursuant to
the common law of New York, a party may repudiate certain types
of contracts prior to the time of performance, thereby entitling
the non-repudiating party to damages for total breach. See
Norcon Power Partners, L.P. v. Niagra Mohawk Power Corp.,
92 N.Y.2d 458, 462, 705 N.E.2d 656, 682 N.Y.S.2d 664 (1998); Long
Is. R.R. Co. v. Northville Indus. Corp., 41 N.Y.2d 455, 463,
393 N.Y.S.2d 925, 362 N.E.2d 558 (1977). "A repudiation can be either
`a statement by the obligor to the obligee indicating that the
obligor will commit a breach that would of itself give the
obligee a claim for damages for total breach' or `a voluntary
affirmative act which renders the obligor unable or apparently
unable to perform without such a breach.'" Norcon Power,
92 N.Y.2d at 462 (quoting Restatement (Second) of Contracts § 250).
Repudiation occurs "when a breaching party's words or deeds are
unequivocal." Id.; see also Palazzetti Import/Export, Inc.
v. Morson, No. 98 Civ. 722, 2001 WL 1568317, at *9 (S.D.N.Y.
Dec. 6, 2001) ("The renunciation . . . must rise to the level of
a clear and unqualified refusal to perform the entire
contract."). The Ghana Airways agent made the "your problem" comment in
response to Paradis' request for a form of relief that the
airline was not required to provide. (See Am. Compl. ¶¶ 32-46).
The contract made no provision for reimbursement of the cost of
more punctual, alternative transportation in the event of a
flight cancellation. The complaint puts the "your problem"
comment in context and makes clear that there was never any
repudiation of Ghana Airways' obligations pursuant to the
Preemption of Plaintiff's Claim
A plaintiff cannot "circumvent [the Warsaw Convention] merely
by recharacterizing her claims as sounding in state law." Fields
v. BWIA Int'l Airways, No. 99 Civ. 2493, 2000 U.S. Dist. LEXIS
9397, at *13 (E.D.N.Y. July 7, 2000). Any other rule would
undermine the U.S. Supreme Court's instruction that "[t]he
cardinal purpose of the Warsaw Convention . . . is to `achiev[e]
uniformity of rules governing claims arising from international
air transportation.'" El Al Israel Airlines v. Tseng,
525 U.S. 155, 169, 119 S. Ct. 662, 142 L. Ed. 2d 576 (1999) (citation
Paradis argues that his state law claim withstands the
preemptive effect of the Conventions because he sues for
non-performance of contract rather than for delay. To support
that position, he relies principally on Wolgel v. Mexicana
Airlines, 821 F.2d 442 (7th Cir. 1987), an action brought by a
husband and wife because they had been "bumped"*fn8 from a
Mexicana Airlines flight. Although the Warsaw Convention provided
the sole remedy for "delay," the United States Court of Appeals
for the Seventh Circuit construed the word "delay," as used in
the Convention, to exclude situations when passengers "never
leave the airport." Id. at 444-45. Wolgel's distinction between
"bumping" and "delay" has been undercut by the U.S. Supreme
Court's message in Tseng "that the application of the
Convention is not to be accomplished by a miserly parsing of its
language." King v. American Airlines, 146 F. Supp. 2d 159, 162
The circumstances of Wolgel are readily distinguishable from
those that Paradis faced in Sierra Leone. The Wolgels were
deprived of all benefit of their bargain. The airline denied them
boarding on the initial leg of their round-trip itinerary and had
provided no compensation even five years later when the
plaintiffs brought suit. See Wolgel, 821 F.2d at 443.
Paradis, who flew the initial leg of his round-trip itinerary,
has offered no factual allegations that Ghana Airways failed to
offer substitute transportation. Indeed, the staff at the airport
and the agent in New York both instructed him to make
arrangements with the Ghana Airways office in Freetown the
following business day. Paradis and his companions were so keen
to leave Sierra Leone that they did not give the airline a
reasonable opportunity to perform.
Other courts have refused to allow recovery for breach of
contract when plaintiffs responded to delays as Paradis did, by
booking alternative flights. See, e.g., Minhas v. Biman
Bangladesh Airlines, No 97 Civ. 4920, 1999 WL 447445 (S.D.N.Y.
June 30, 1999); Ratnaswamy v. Air Afrique, No. 95 C 7670, 1998
WL 111652 (N.D. Ill. March 3, 1998); Alam v. Pakistan Int'l
Airlines Corp., 92 Civ. 4356, 1995 U.S. Dist. LEXIS 11919
(S.D.N.Y. July 27, 1995); Malik v. Butta, 92 Civ. 8703, 1993
U.S. Dist. LEXIS 1442 (S.D.N.Y. Oct. 14, 1993).
In Ratnaswamy v. Air Afrique, No. 95 C 7670, 1998 WL 111652,
at *2-3 (N.D. Ill. March 3, 1998), for example, a husband and
wife sued, inter alia, for breach of contract when, despite having reconfirmed their tickets, they were denied
boarding on a return flight from Senegal to New York City. Id.
at *1-2. The defendant airline, Air Afrique, refused to
compensate plaintiffs by providing them tickets for a flight on
another carrier, Id. at *2. The airline instructed the
plaintiffs to wait three days for the next Air Afrique flight,
seats on which were not guaranteed; instead of complying, the
plaintiffs bought more expensive tickets to return on an earlier
flight operated by a different airline. Id. at *2. The
Ratnaswamy court held that because the plaintiffs had already
flown six out of seven Air Afrique segments of their planned
itinerary, the suit was actually "for damages they allegedly
sustained as a result of their delay in leaving Africa." Id. at
*4. Distinguishing its own Circuit's opinion in Wolgel, the
Ratnaswamy court held that the plaintiffs' state law claims
were "within the purview of the convention," which provided the
"exclusive remedy" for delay, and were accordingly preempted.
Id. (citation omitted).
Similarly, in Minhas v. Biman Bangladesh Airlines, No. 97
Civ. 4920, 1999 WL 447445, at *1 (S.D.N.Y. June 30, 1999), Judge
Barbara S. Jones rejected the state law claims of Minhas, who had
been bumped off of a return flight from New Delhi to New York in
March of 1997. The plaintiff remained in India for 45 extra days
after that, trying unsuccessfully to get a return flight from the
defendant airline. Id. Eventually, when Minhas was informed in
late April that no flight would be available to New York until
some time in July, her spouse bought her a ticket on another
airline. Id. As a result of the delay and her concomitant
inability to access study materials, Minhas claimed that she was
unable to sit for the California bar examination in July as she
had planned. Id. Although Minhas did not specify whether she
brought her claims in contract or tort, Judge Jones held broadly
that "[c]laims arising from so-called `bumping' are within the scope
of Article 19 of the Convention," and granted the airline's
motion for partial summary judgment. Id. at *2.
Just as the plaintiffs in Minhas and Ratnaswamy, Paradis
did not afford the airline an opportunity to perform its
remaining obligations pursuant to the contract. The several extra
hours Paradis spent in Sierra Leone did not expose Ghana Airways
to liability for contractual non-performance. Moreover, there was
no indication that Ghana Airways intended to repudiate its
contractual obligations. The Conventions apply and therefore
preempt Paradis' state law breach of contract claim.
The Court need not address defendant's contention that Paradis
does not have standing to bring this action on behalf of his
traveling companions, because plaintiff's breach of contract
claim is preempted by the relevant air carriage treaty.
The motion of Ghana Airways to dismiss the Complaint is granted