UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
June 15, 2011
MOHAMMED A. ANSARI, PLAINTIFF,
KUWAIT AIRWAYS CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Pohorelsky, Magistrate Judge:
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
Having considered the evidence at trial and the submissions of the parties, the court makes the following findings of fact and reaches the following conclusions of law:
FINDINGS OF FACT
1. At some time prior to April 20, 2010, the plaintiff Mohammed A. Ansari purchased a ticket for travel by air from Islamabad, Pakistan to Kennedy Airport in New York City aboard the defendant Kuwait Airways Corporation aircraft. The plaintiff's travel was scheduled to commence on April 20, 2010.
2. The plaintiff purchased the ticket for air travel through a travel agent. He had no direct contact with the defendant in that process.
3. At the time the plaintiff purchased the ticket, the itinerary for his travel to New York included a stop at London's Heathrow Airport, but the travel agent apparently did not advise him of that fact.
4. When the plaintiff arrived at the airport in Islamabad on April 20, 2010, he was advised that his flight had been canceled because volcanic activity in Iceland had caused Heathrow Airport to be closed. The Passenger Name Record for the plaintiff reflects that the flight was in fact canceled because of volcanic ash over London, Def. Ex. D, and Heathrow Airport was closed to air travel at that time for approximately two weeks.
5. As the plaintiff's permission to re-enter the United States was to expire on May 1, 2010, he had to arrive in the United States on or before that date.
6. In conversation with his travel agent, the plaintiff was told that there were no tickets available for transportation aboard other flights offered by the defendant that would transport him to the United States by the May 1 date.
7. The plaintiff therefore purchased a ticket for travel aboard another airline, apparently through the same travel agent that he had used to purchase the ticket for travel aboard the defendant airline. The airfare for that ticket was higher than that issued by the defendant. The difference between the two airfares was 208,400 Pakistani Rupees.*fn1
8. The ticket purchased by the plaintiff was subject to terms and conditions that were published by the defendant. Def. Exs. A, B; Pl. Ex. 1.
9. One of the terms and conditions is a provision that permits the defendant to cancel a flight because of any fact beyond its control, including meteorological conditions. Pl. Ex. 1, ¶ (B)(2)(a). In the event of such a cancellation, the sole liability of the defendant is "to refund in accordance with its tariffs the fare and baggage charges for any unused portion of the ticket." Id.
10. The defendant provided the plaintiff with a full refund of the purchase price of the ticket they had issued for his travel.
11. The plaintiff brought this action to recover the financial loss he suffered because he had to pay the higher fare.
CONCLUSIONS OF LAW
1. The defendant is a "foreign state" within the meaning of the Foreign Sovereign Immunities Act, see 28 U.S.C. §§ 1603(b)(2), and this court therefore has subject matter jurisdiction to determine the action pursuant to 28 U.S.C. § 1330(a).*fn2
2. The ticket purchased by the plaintiff constitutes the contract of transportation. E.g., In re Nigeria Charter Flights Contract Litigation, 520 F. Supp. 2d 447, 459 (E.D.N.Y. 2007); Shen v. Japan Airlines, 918 F. Supp. 686, 688 (S.D.N.Y.1994).
3. The terms of the contract permitted the defendant to cancel the flight because of meteorological conditions.
4. The volcanic ash that closed Heathrow Airport to air traffic constitutes a meteorological condition within the terms of the contract.
5. Accordingly, the cancellation of the flight was not a breach of the contract of transportation.
6. The terms of the contract limited the defendant's liability to the defendant in the event of a cancellation due to meteorological conditions to a refund of the purchase price of the ticket. Accordingly, the defendant had no obligation to pay for any costs incurred by the plaintiff in obtaining alternative transportation.
7. Since the defendant provided a full refund of the purchase price, it complied with its obligations under the contract of transportation.
8. As the defendant did not breach its contract with the plaintiff, there is no basis for imposing liability on the defendant for any damages suffered by the plaintiff.
As the plaintiff has not established a basis for liability, his claim in this action should be and is hereby dismissed. The clerk shall enter judgment accordingly.
VIKTOR V. POHORELSKY United States Magistrate Judge