Damages for Delay of International Flights under Article 19 of the Montreal Convention
Flight delays are a common aspect of international carriage. Recent studies taken by the Bureau of Transportation Statistics, a department of the Research and Innovative Technology Administration, (RITA) indicate that in May of 2012, as many as 22.39% of all flights out of Miami International Airport were delayed by fifteen minutes or more. Click here to see RITA Ranking of Major Airport On-Time Departure Performance in May 2012 (last visited August 27, 2012) . Flight delays can have frustrating consequences for international travelers—such as missed connections, missed business meetings, and loss of vacation time—but at what point does the passenger’s frustration equate to liability consequences for the airline?
In a recent suit filed in the Southern District of Florida, Campbell v. Air Jamaica Ltd., No. 11–CV–23233, 2012 WL3562126 (S.D. Fla. August 17, 2012), the pro se plaintiff-passenger sought damages in the amount of $5,000,000 as a result of the delay of his flight from Kingston, Jamaica to Fort Lauderdale, Florida. Specifically, Plaintiff claimed that he “had to remain at the airport overnight outside the terminal building, which was under repairs, under adverse weather and became ill at the airport in Kingston, Jamaica.” He also alleged that he had suffered “anxiety to make the flight since his permanent resident alien card would expire on September 9, 2009, and he would encounter problems with immigration upon arrival in the United States.” Id. at *2.
Although the Southern District quickly dismissed Plaintiff’s claims for emotional injuries under Article 19 of the Montreal Convention for the Unification of Certain Rules for International Carriage by Air (The Montreal Convention), which governs international flights, holding that only economic damages are available, the court did not reach the question of what types of economic damages are recoverable, and what, if any, are the limitations to recovery. Id.
Article 19 of the Montreal Convention provides that a carrier can be liable for damages to passengers caused by delay in transportation. However, Article 19 further provides that, the “carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.” “All measures” has not been interpreted to mean an airline must do everything in its power to avoid delay, only what is reasonable. The carrier need only show that it took “all precautions that in sum are appropriate to the risk, i.e. measures reasonably available to defendant and reasonably calculated, in cumulation, to prevent the subject loss.” Verdesca ex rel., v. American Airlines, Inc., 3:99–CV–2022–BD, 2000 WL 1538704, ( N.D. Texas Nov. 17, 2004).
Courts have found that airlines behaved reasonably in delay situations caused by increased security measures, mechanical failures, and weather disruptions. See Peralta v. Continental Airlines, Inc., No. C 98–1252 MJJ, 1999 WL 193393, at *2 (N.D. Cal. March 30, 1999) (airliner not liable for delay caused by security measures); Helge Management, Inc. v. Delta Airlines, Inc., No. 11–10299–RBC, 2012 WL 2990728, (D. Mass. July 19, 2012) (airliner not liable for delay costs due to maintenance issues); Cohen v. Delta Air Lines, Inc., 751 F. Supp. 2d 677 (S.D. N.Y. 2010) (airliner not liable for delay costs due to weather).
The question of what constitutes “all reasonable measures” is one for the fact finder. Where the airliner is found not to have taken all reasonable measures and is, as a result, liable, Article 19 permits the recovery of compensatory damages which are reasonable and foreseeable, damages for inconvenience, but bars the recovery of punitive damages and emotional damages. Daniel v. Virgin Atlantic Airways Ltd., 59 F. Supp. 2d 993, 986 (N.D. Cal. 1998). Therefore, the cost of the lost days at a vacation resort, car rentals, or hotel accommodations could be recoverable, but damages for any emotional impact of the delay are not. Lee v. American Airlines, Inc., 03-10178, 2004 WL 18008 (5th Cir. Jan. 14, 2004) (holding that nonrefundable vacation expenses are recoverable under Article 19, but the loss of a “refreshing memorable vacation” is a re-characterization of mental anguish damages, which are not recoverable).
A passenger’s ability to recover under Article 19, however, is also subject to the per-passenger liability limit of 4,694 Special Drawing Rights (currently about US $7,200) set forth in Article 22(1). See also Inflation Adjustments to Liability Limits Governed by the Montreal Convention Effective December 30, 2009, 74 F.R. 59017-18 (Nov. 16, 2009) (increasing the limitation from 4,150 SDRs to 4,694 SDRs.) This liability limit is removed pursuant to Article 22(5), if the passenger can prove that the delay damages resulted from airline conduct “done with intent to cause damage or recklessly and with knowledge that damage would probably result.” This provision has a two-fold requirement, both a showing of reckless behavior and a causal connection between the behavior and the delay. This is a heavy burden for a passenger to meet, often requiring extreme circumstances. See Shah v. Pan American World Services, Inc., 148 F. 3d 84, (2d Cir. 1998) (hijacking in Karachi, Pakistan; fraudulent misrepresentation of adequacy of security system is willful misconduct).
In sum, the individual facts and circumstances both behind the reasons for the delay and the airline’s actions to accommodate passengers following the delay in each case will ultimately determine whether liability exists and the extent of available damages.