FIELDS v. BWIA INTERNATIONAL AIRWAYS LIMITED

Full title: Carmina Fields, plaintiff v. BWIA International Airways Limited, defendant

Court: United States District Court, E.D. New York

Date published: Jul 7, 2000

99-CV-2493 (JG) (E.D.N.Y. Jul. 7, 2000)

Opinion

99-CV-2493 (JG).

July 7, 2000.

CARMINA FIELDS, Brooklyn, New York, for Plaintiff Pro Se.

STEPHEN L. FEARON, Condon Forsyth LLP., New York, New York, for Defendant.

MEMORANDUM AND ORDER

John Gleeson, United States District Judge.

Plaintiff Pro Se Carmina Fields brought suit against BWIA International Airways Limited ("BWIA") in the Civil Court of the City of New York, Kings County, for damages arising out of an incident on November 22, 1998, at John F. Kennedy International Airport ("JFK"). BWIA removed the action to this Court and now moves for summary judgment. For the following reasons, the motion is granted.

BACKGROUND

Fields's father passed away on November 19, 1998, and she and her brother, Grafton Matthews, wanted to fly to St. Vincent to attend his funeral on November 22, 1998. On November 21, 1998, they purchased round-trip tickets for travel between New York and Barbados from a Queens, New York travel agency, Sandra's Travel. They were scheduled to depart from JFK for Barbados on BWIA flight 425, on November 22, 1998, at 9:00 a.m. Upon arrival in Barbados, they intended to purchase tickets for a connecting flight to St. Vincent.

BWIA requires that all passengers appear for check-in at the ticket counter at JFK at least 60 minutes before the flight's scheduled departure time. Fields alleges that she, her daughter, Matthews, and a friend, Sharon Goring, arrived at JFK at approximately 7:00 a.m. and joined a line at the check-in counter. (See Fields Aff. ¶¶ 4, 6.) Because the line was very long, Fields left her passport and ticket with her brother and went with Goring to an automatic teller machine ("ATM") to withdraw money so that she could purchase the second leg of her trip when she arrived in Barbados. (See id ¶ 7.) Encountering difficulties at the first ATM, Fields proceeded to a second ATM and was delayed in returning to the check-in line. In the meantime, Matthews proceeded to check himself in, but was unable to check in Fields or her luggage.

When Fields returned to the check-in line, an agent informed her that the flight was no longer taking baggage. Fields was not permitted to board the aircraft, and the flight departed without her. Although Matthews traveled to Barbados as scheduled, Fields boarded a BWIA flight from JFK to Barbados the next morning, November 23, 1998. The funeral was postponed until November 25, 1998.

Fields additionally contends that she returned to the check-in counter from her trip to the ATMs no later that 8:00 a.m., one hour prior to departure. (See Fields Aff. ¶¶ 8, 9; Pl.'s 56.1 Stmt. ¶ 3.) Subpoenaed records from Chase Manhattan Bank evidence ATM withdrawals at 7:54:58 a.m., at JFK Building 8, and again at 7:58:21 a.m., at JFK Building 9. Fields insists that the second ATM was only 140 feet away from the check-in counter and that it would have taken her only 30 seconds to run the distance.¹ (See Fields Aff. ¶ 9; PI.'s 56.1 Stmt. ¶ 3.)

1 A BWIA Customer Relations agent stamped Fields ticket "FTC 08:15." FTC means that the passenger "Failed to Comply" with BWIA's requirement of arrival at least 60 minutes prior to departure. (See Joint Witness and Exhibit List and Statement of Undisputed Facts ¶ 6.)

Fields further alleges the following: when she presented a copy of her father's death certificate and her emergency visa she was ignored; when seeking assistance from a supervisor, "she looked right past me as if I did not exist"; she was begging and crying for help, while screaming that she would never see her father's face again; an hour later a clerk approached her saying that she could still board but would have to leave her luggage behind; and, when giving Goring money to ship the luggage, the supervisor closed the flight, ripped her ticket, and told her to return the next day. (See generally Fields Aff.)

On April 2, 1999, Plaintiff filed the present action against BWIA in state court, alleging merely that she is "suing for compensation for emotional stress and mistreatment during my time of bereavement." (Def.'s 56.1 Stmt., Ex. A.) On April 29, 1999, BWIA removed the action to this Court pursuant to 28 U.S.C. § 1331 and 1441 on the ground that the action arises out of "international transportation" within the meaning of a treaty commonly referred to as the Warsaw Convention see Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12, 1929, 49 Stat. 3000, T.S. No. 876, reprinted at 49 U.S.C. § 40105 notes (1994). BWIA has moved for summary judgment pursuant to Fed.R.Civ.P. 56.

DISCUSSION

A. The Summary Judgment Standard

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether material facts are in dispute, courts must resolve all ambiguities and draw all inferences in favor of the non-moving party. See Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).

The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. See Gallo v.Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'"Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (quoting Fed.R.Civ.P. 56(e)) (citations and footnote omitted). The non-moving party cannot survive a properly supported motion for summary judgment by resting on its pleadings without offering "`any significant probative evidence tending to support the complaint.'" Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249 (1986) (quoting First Nat'l Bank v. Cities Serv.Co., 391 U.S. 253, 290 (1968)). Moreover, the moving party is not required to affirmatively disprove unsupported assertions made by the nonmovant. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Kerzer, 156 F.3d at 400 (citing D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911 (1998)).

B. The Warsaw Convention

BWIA argues that this case is governed by the exclusive remedies set forth in the Warsaw Convention ("Convention"). "The Convention was intended to act as an international uniform law" that would bind the forum. Reed v. Wiser, 555 F.2d 1079, 1083, 1092 (2d Cir. 1977). Accordingly, it preempts all state law causes of action that fall within its scope.² See Fishman v.Delta Air Lines. Inc., 132 F.3d 138, 141 (2d Cir. 1998).

2 As a treaty of the United States, the Convention is the supreme law of the law. U.S. Const. art. VI, cl. 2.

The Convention applies "to all international transportation of persons, baggage, or goods performed by aircraft for hire."³ Warsaw Convention, art. 1(1), reprinted at 49 U.S.C. § 40105 notes. Here, the air transportation contract was for round-trip travel departing and returning to New York, with a stop in Barbados. Thus, the Convention applies to this "international transportation."

3 International transportation includes "any transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another power, even though that power is not a party to this convention." Warsaw Convention, art. 1(2), reprinted at 49 U.S.C. § 40105 notes.

1. Delay

Article 19 of the Convention provides that "the carrier shall be liable for damage occasioned by delay in the transportation by air of passengers, baggage, or goods." BWIA argues that as the gravamen of Fields's complaint is emotional distress resulting from her delayed arrival in Barbados, her cause of action is a claim for delay arising under Article 19 of the Convention. I agree.

The case law construing delay under Article 19 generally concerns the practice of "bumping" passengers. For example, inSassouni v. Olympic Airways, 769 F. Supp. 537 (S.D.N.Y. 1991), the plaintiff, an Orthodox Jew, was booked on Olympic Airlines to travel from JFK to Athens and then on to Tel Aviv, arriving in Israel on the eve of Passover. However, he was "bumped" from the Athens-to-Tel Aviv flight. As a result, he traveled to Israel on Passover and suffered "great mental and emotional distress" because such travel was forbidden by Jewish law. Id. at 538. The court concluded that these injuries stemmed from a delay in transportation caused by being bumped and, as such, were governed by Article 19 of the Convention. See id. at 540; see also Minhas v. Biman Bangladesh Airlines, No. 97 CIV. 4920 (BSJ), 1999 WL 447445, at *2..*3 (S.D.N.Y. Jun 30, 1999) (claims arising from delay in transportation due to "bumping" governed by Article 19);Yanosky v. Air France, No. 98 Civ. 0174(LMM), 1998 WL 305648, at *3 (S.D.N.Y. June 10, 1998) (same), aff'd 173 F.3d 848 (2d Cir. 1999) (unpublished table decision); Malik v. Butta, No. 92 Civ. 8703 (SS), 1993 WL 410168, at *2..*3 (S.D.N.Y. Oct. 14, 1993) (same).

The practice of "bumping" is particularly analogous to the circumstances here. BWIA did not permit Fields to board her flight to Barbados. It is of no consequence that BWIA's refusal was occasioned by a dispute over whether Fields arrived 60 minutes prior to departure or by a practice of "bumping" — the result of a delay in transportation is the same. Here, Fields alleges in her complaint that she "is suing for compensation for emotional stress and mistreatment during [her] time of bereavement." (Def.'s 56.1 Stmt., Ex. A.) Her affidavit demonstrates that this "emotional stress" was caused by the delay in arriving in St. Vincent for her father's funeral. She states that she was "crying and begging for someone to help [her] and was repeatedly screaming that [she] would never see [her] father's face again and that [she] had to get to [her] father's funeral." (Fields Aff. ¶ 14; see also id. ¶ 17.) I conclude, therefore, that Fields's claim arises from a delay within the meaning of Article 19.

2. Availability of Other Claims

Fields counters that the Convention does not apply because her cause of action arises under section 404(b) of the Federal Aviation Act ("FAA"), 49 U.S.C. app. § 1374(b) (1982) (repealed 1983), and New York common law. Specifically, she claims:

My fundamental grievances are for two things (a) for emotional distress resulting from the fact that despite the fact that I had a valid boarding ticket for flight 425 (contract) and passport and complied with BWIA's check-in requirements, BWIA failed to perform its contractual obligation by refusing to allow me to board the flight; and (b) for damages under section 404(b) of the FAA because by its conduct, BWIA engaged in unjust discrimination or undue or unreasonable preference or disadvantage, as it refused to allow me to board the flight, while allowing other people who were in the same situation as myself to board the flight.

(Pl.'s Mem. of Law at I.)

With respect to the claim for discrimination, this cause of action is no longer available. As Fields conceded at oral argument, Congress repealed section 404(b) of the FAA⁴ as of January 1, 1983, except insofar as the section requires air carriers to provide safe and adequate service. See 49 U.S.C. app. § 1551(a)(2)(B) (1982). Fields's, therefore, may not maintain an implied private right of action to enforce this section.⁵

4 Section 404(b) provides:

No carrier or foreign air carrier shall make, give, or cause any undue or unreasonable preference or advantage to any particular person, port, locality, or description of traffic in air transportation in any respect whatsoever or subject any particular person, port, locality, or description of traffic in air transportation to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever.

49 U.S.C. app. § 1374(b) (1982) (repealed 1983).

5 I recognize that 49 U.S.C. § 41310 prohibits foreign or domestic air carriers from subjecting persons in foreign air transportation to "unreasonable discrimination." 40 U.S.C. § 41310 (a). However, as this section authorizes enforcement only by the Secretary of Transportation and does not create a private right of action (and the plaintiff has not asked me to imply one), it is inapplicable to the instant case.

Furthermore, Fields may not circumvent Article 19 merely by recharacterizing her claims as sounding in state law. InSassouni, the court specifically rejected a "bumped" plaintiffs argument that his claim was based on the airline's denial and refusal to perform under the contract. See 769 F. Supp. at 540. As the court stated: "[P]laintiffs 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." Id.; see also id. at 540-41 ("`[W]hether plaintiffs' legal claims sound in fraud, as plaintiffs argue, or contract, as the Fourth Cause of Action explicitly states, there can be no doubt that the claims are covered by Article 19 of the Warsaw Convention . . . .'" (quoting Reiser v. Meloi World Travel Serv., 18 Av. Cas. (CCH) 17, 208 (S.D.N.Y. 1983))). Similarly, inMinhas, a "bumped" plaintiff alleged that the airline negligently refused to permit her to board the flight, and she denied that her claims were governed by the Convention. See 1999 WL 447445, at *1, *3 n. 4. Noting that a "plaintiff cannot create an issue of fact merely by denying defendant's legal argument," the court held that her claims arose from a delay within the meaning of Article 19 and, as such, her negligence claim was preempted. Id. at *3 n. 4.

In support of her argument that her claim arises from BWIA's nonperformance of a contractual obligation, Fields relies exclusively on Wolgel v. Mexicana Airlines, 821 F.2d 442 (7th Cir. 1987). In Wolgel, the plaintiff brought a claim for discriminatory "bumping" in violation of section 404(b) of the FAA. The district court held that the claim was barred by the two-year statute of limitations contained in the Convention, and the plaintiff appealed. See 821 F.3d at 442-43. The Seventh Circuit reversed and held that the Convention did not apply to claims for discriminatory "bumping." Specifically, the court addressed the history of the Convention and concluded that the drafters did not intend "the word `delay' in Article 19 to extend to claims . . . that arise from the total nonperformance of a contract." Id. at 444. Thus, the court reasoned:

This case is one of nonperformance of a contract. The Wolgels are not attempting to recover for injuries caused by their delay in getting to Acapulco. Rather, their complaint is based on the fact that, as far as the record shows, they never left the airport. Because the Wolgels' claim is for total nonperformance of a contract the Warsaw Convention is inapplicable.

Id. at 445.

Wolgel is distinguishable from this case. Whereas the plaintiffs in Wolgel never left the airport, Fields actually flew to Barbados the following day. BWIA, therefore, performed its obligations under the contract (albeit one day late) and Fields cannot claim total nonperformance. Moreover, the Wolgel court's effort to distinguish discriminatory bumping claims from those arising out of delay may have been influenced by the court's prior holding that section "404(b) created an implied private right of action for passengers of a domestic airline who were bumped due to a failure of the airline to follow its own boarding priority rules." 821 F.2d at 443. As section 404(b) has now been repealed, see supra, I find that the Wolgel court's analysis inapplicable.

Finally, to the extent Fields claims damages for BWIA's intentional infliction of emotional distress (i.e., by humiliating her in public), a claim I assume, without deciding, is outside the scope of Article 19 (i.e., it does not seek damages occasioned by her delay in arriving in Barbados) and is not otherwise preempted by the Convention, she has failed to raise a genuine issue of fact requiring trial. Under New York law, the tort of intentional infliction of emotional distress has four elements: "(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and the injury; and (iv) severe emotional distress."Howell v. New York Post Co., 91 N.Y.2d 115, 121 (1993). A plaintiff will only prevail on this claim "`where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'"Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303 (1983) (quoting Restatement (Second) of Torts § 46 cmt. d).

Fields contends that when she was denied boarding she was "severely embarrassed and humiliated in front of strangers, family, and friends, and the fact that I thought that I would never see my father only modified [sic] the feelings of trauma, distraught, embarrassment, humiliation and emotional distress which I experienced and am still experiencing to this day whenever I reflect on the incident." (Fields Aff. ¶ 18.) Accepting these allegations as true, as I must, Fields has nonetheless failed to establish a claim for intentional infliction of emotional distress. Simply put, even if I conclude that BWIA intentionally did not allow Fields to board even though she arrived on time, albeit seconds before the one-hour deadline, such conduct is neither so extreme nor so outrageous in nature to constitute intentional infliction of emotional distress.

Having decided that Fields's damages are occasioned by delay within the meaning of Article 19, and that the Convention is her sole remedy, I will now address whether Fields may recover damages for emotional distress under the Convention.

3. Emotional Distress Damages Under the Convention

BWIA contends that damages for purely emotional injuries are not recoverable under the Convention. In support of this proposition, BWIA relies on Eastern Airlines. Inc. v. Floyd, 499 U.S. 530 (1991). In Floyd, passengers aboard a flight from Miami to the Bahamas were told that the plane would have to be "ditched" in the ocean. The crew, however, regained control of the plane and returned to Miami without causing any physical injury to the passengers. See id. at 533. The passengers then brought claims under Article 17, which pertains to claims arising out of accidents on board or in the course of embarking or disembarking aircrafts, seeking damages purely for their emotional distress. After considering the structure and purpose of the Convention, the history surrounding its adoption, the legal meaning of the French text, and the unavailability of recovery for purely psychic injuries in many common and civil law countries at the time the Convention was drafted, the Supreme Court concluded that Article 17 did not permit recovery for mental or psychic injuries in the absence of a "physical injury, or physical manifestation of injury." Id. at 552.

In Daniel v. Virgin Atlantic Airways Ltd., 59 F. Supp.2d 986 (N.D. Cal. 1998), the court applied the Supreme Court's reasoning in Floyd to a claim for damages caused by delay in air transportation under Article 19. See id. at 992. Upon considering the Supreme Court's analysis, the court concluded that it could "not logically find that damages for purely emotional injuries caused by delayed arrival are available under the Convention, when damages for purely emotional injuries caused by a near-crash into the ocean are not available." Id.; see also Barrett v.United Airlines. Inc., No. 92 C 5578, 1994 WL 419637, at *3 (N.D. Ill. Aug. 5, 1994). I agree.

Here, Fields seeks $25,000 in damages for her "emotional stress." (Def.'s 56.1 Stmt., Ex. A.) She does not allege that she suffered any physical injury or any pecuniary loss. Accordingly, Fields is not entitled to any recovery under Article 19.⁶

6 To the extent Fields has alleged what could be construed as "wilful misconduct" within the meaning of Article 25 of the Convention (although she has not done so explicitly), that provision does not alter my conclusion that she is not entitled to damages for her psychic injuries. Article 25 provides that a carrier (or an agent of the carrier acting within the scope of his employment) who engages in "wilful misconduct" is not "entitled to avail himself of the provisions of the convention which exclude or limit his liability." Warsaw Convention, art. 25, reprinted at 49 U.S.C. 40105 notes. The Supreme Court's determination in Floyd that Article 17 does not provide for damages for purely emotional injuries, a determination which I agree extends to Article 19, is not a limit on liability and is not altered by an allegation of wilful misconduct. See Barrett, 1994 WL 419637, at *2 (holding that plaintiffs may not recover damages for emotional injuries under Article 17 by invoking Article 25); Cf. In re Air Disaster at Lockerbie, Scotland on Dec. 21, 1988, 928 F.2d 1267, 1286 (2d Cir 1991) (holding that wilful misconduct under Article 25 does not render Article 17's exclusion of punitive damages inoperative), abrogated on other grounds, Zicherman v. Korean Air Lines Co., 516 U.S. 217, 228-29 (1996) (holding that compensable harm under Convention, including who may bring suit and type of damages recoverable, governed by domestic law not federal common law).

CONCLUSION

For the forgoing reasons, the defendant's motion for summary judgment is granted. This case is closed.