Originally published in The Florida Bar Journal, September/October, 2014Volume 88, No. 8

The 2014 year kicked off with the bone-chilling arrival of the Polar Vortex — a mass of cold air that usually resides over the Arctic and Antarctic circles. The vortex brought extreme temperatures with wind chills of -30 to -40 degrees throughout much of the Northeast and Midwest.¹ The airline industry and passengers alike felt the effects of this uncommon weather phenomenon. Not only did the Polar Vortex bring us snow and ice, but airlines were faced with the logistical problems of frozen equipment and ramp workers who were unable to work under polar conditions. The result: Airports throughout the country saw 4,000 flights canceled on January 6 with another 2,000 flights canceled the following day.² More than 30 percent of flights to and from Chicago’s O’Hare and Midway airports were canceled with high cancellation rates also reported at Cleveland, Boston, Newark, LaGuardia, and John F. Kennedy airports. These cancellations led to frustrated passengers being stranded in airports for days while airlines attempted to rebook and accommodate passengers on flights as quickly and efficiently as possible. 

The inconvenience of flight cancellations and delays resulting from the effects of the Polar Vortex affected not only the airline industry’s bottom line, but also stranded thousands of passengers in airports for more than a day, incurring additional, unexpected expenses.³ Passengers also likely experienced a sense of frustration arising from the inconvenience of flight delays, anxiety about potential missed income for those traveling for work, and anger for those missing out on valuable days of a pre-planned vacation. 

With the high volume of international flights coming in and out of airports, such as O’Hare, LaGuardia, and JFK, the Polar Vortex and its consequent flight delays affected its fair share of international passengers coming into or going out of the country. For those passengers seeking any form of recourse against an airline for these delays, international law vests them with limited rights and airlines with limited liability. The Montreal Convention⁴ (formally, the Convention for the Unification of Certain Rules for International Carriage by Air) is an international multilateral treaty affecting the rights of all passengers traveling internationally among its signatory countries.⁵ This treaty, which entered into force on November 4, 2003, has been ratified and adopted by 104 countries, including the United States.⁶ The convention governs any delay claims stranded international passengers may pursue against an airline.⁷

The Montreal Convention 
This international treaty provides a comprehensive liability regime governing claims arising from international air carriage.⁸The drafters of the Montreal Convention intended for it to replace the predecessor treaties governing this area, including the 1929 Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air (commonly known as the Warsaw Convention),⁹ The Hague Protocol of 1955,¹⁰ and Montreal Protocol No. 4,¹¹ among others, as well as voluntary agreements among air carriers.¹² Although intended to supersede predecessor treaties, the drafters did not intend to dispose of decades of case law interpreting the prior treaties and protocols to the extent the provisions were similar or identical.¹³ As the Montreal Convention has only been in effect for approximately 10 years, there is limited case law interpreting its provisions, making it “appropriate to rely on cases interpreting the Warsaw Convention where the equivalent provision of the Montreal Convention is substantively the same.”¹⁴ The pertinent delay damage provisions addressed in this article are substantively the same in both the Montreal and Warsaw conventions; therefore, this article discusses case law interpreting the relevant provisions under both treaties.

The Montreal Convention “applies to all international carriage of persons, baggage or cargo performed by aircraft for reward.”¹⁵ It defines the phrase “international carriage” as: 

any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transshipment, are situated either within the territories of two State Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party.¹⁶ 

Any passengers who book a flight containing an international segment either between two signatory countries, such as the United States and Spain, or a flight in and out of the United States with a layover in another country, will have his or her rights governed by the terms of the convention. This will be true regardless of whether the flight delay took place on only a domestic segment of a longer international flight. For example, if a passenger traveled from Tokyo to Chicago to Miami, but the flight cancellation occurred only for the domestic segment from Chicago to Miami and after the passenger arrived at the O’Hare airport, the Montreal Convention still governs a claim involving the delay of the domestic segment. 

It should be noted that the Montreal Convention preempts all claims under local, state, or federal law, thereby mandating its application to any delay claims arising out of an international flight itinerary. Article 29 provides that any claims falling within the purview of the convention will be exclusively governed by its terms. It specifically states in pertinent part:

In carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this [c]onvention 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 [c]onvention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. . . .¹⁷

Art. 19 explains the circumstances in which an air carrier may be liable for a passenger’s delay damages. It imposes the following liability on an airline for occasioning a delay in a passenger’s international air travel:

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, 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.¹⁸

In a delay damage case, the initial battle between an airline and a passenger will hinge on whether an airline took all reasonable measures to avoid the delay. If the airline satisfies this standard, the passenger — no matter how much he or she incurred in out-of-pocket costs arising from the flight delays — will be left without a recourse. There are a myriad of reasons a passenger can experience a flight delay. For example, delays can be due to extreme weather, such as the Polar Vortex or a hurricane, a mechanical problem with the aircraft, the temporary closure of ramps due to lightning, or even an airline’s overbooking of a flight and consequent “bumping” of a passenger.¹⁹ So the question then becomes — what measures must an airline prove it took to absolve itself of liability for delay damages?

What Constitutes All Measures?
Several courts have analyzed the language within art. 19 of the Montreal Convention to determine what the drafters intended by the phrase “all measures.”²⁰ Significantly, it has not been interpreted to mean an airline must do everything in its power to avoid the delay of a flight or its cancellation.²¹ Rather, the airline must prove 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.”²² “The failure to take any particular precaution that might have prevented the loss does not necessarily prevent the carrier from relying on this defense; not every possible precaution must be taken.”²³ 

Interpreting this standard, several courts have analyzed whether the measures taken were reasonable at two different points in time: 1) measures taken to prevent the original delay-causing event, if possible; and 2) measures taken to rebook the passenger on another flight to minimize the delay.²⁴ Airlines must prove they took all reasonable measures under both circumstances, if possible.²⁵ Taking reasonable measures to prevent the original delay may not be enough if the airline fails to act reasonably in rebooking the delayed passenger on another flight.

In Helge Management v. Delta Air Lines, Inc., No. 11-10299-RBC, 2012 WL 2990728 (D. Mass. 2012), the District Court of Massachusetts was asked, on summary judgment, to determine whether Delta’s cancellation of a flight due to a mechanical problem satisfied the reasonable measures defense of art. 19. The plaintiff was booked on a flight from Boston to Atlanta to Moscow.²⁶ He arrived at the Atlanta airport without incident.²⁷ Prior to boarding the international segment of the flight, Delta made multiple delay announcements. An unforeseen mechanical failure, a Federal Aviation Administration (FAA) requirement, necessitated repairs. Given the complicated nature of the failure, the repairs took longer than estimated. Thereafter, the aircraft experienced a power supply problem, further extending the delay. Once the aircraft was ready for travel, the flight crew could no longer fly as the FAA maximum flight time regulations had been exceeded. Although Delta attempted to secure a new crew, none were available in Atlanta at 10 p.m. Ultimately, the flight to Moscow was canceled and the plaintiff was booked on the next flight, one day later.

In analyzing the measures Delta took to avoid the delay, the district court considered whether it 1) acted reasonably in avoiding the initial delay, and 2) in rebooking the passenger. As to the first issue, the court noted the original delay was an unforeseen and complicated mechanical problem with the aircraft. Although Delta secured an alternate aircraft during the mechanical delay, that aircraft required an extensive walk around to ensure it was safe for overseas travel. Once the aircraft was finally ready, the flight crew “timed out,” and although Delta attempted to secure a new crew, none could be found. Based on the foregoing, the court found that Delta had taken reasonable measures to prevent the original flight delay.

The court next analyzed whether it took reasonable measures to prevent any further delay by the expedient rebooking of the plaintiff’s flight. In response to the cancellation, Delta used an automated rebooking system that searched for the next available flight on any available carrier. A review of the passenger records for everyone on board the canceled flight revealed that none of them were rebooked on an earlier flight. The plaintiff then claimed Delta acted unreasonably by failing to rebook him on an alternative flight departing Atlanta earlier that evening. Citing to an opinion from the Northern District of Texas,²⁸the court determined Delta had no duty to rebook the plaintiff until it was clear the flight was going to be canceled. Only then did the duty to rebook passengers become imperative.²⁹ Under these facts, Delta took all reasonable measures to prevent the flight delay, thereby exonerating itself of any liability.³⁰

Courts have also analyzed what constitutes a reasonable measure when the airline industry is confronted with an act of God, such as extreme weather conditions or unpredictable volcanic eruptions causing the dispersion of ash clouds in the atmosphere. Cohen v. Delta Air Lines, Inc., 751 F. Supp. 2d 677 (S.D.N.Y. 2010),involved a claim for delay damages for a missed vacation day in Argentina when an air traffic control mandate delayed the plaintiffs’ outbound flight by one hour and 20 minutes due to wintry weather conditions. These conditions caused hundreds of late arrivals and departures at the Atlanta airport.³¹ The gate agents, who were working the gates for other delayed flights, arrived late to service the plaintiffs’ inbound flight from New York.³² These delays caused the plaintiffs to miss their connection to Buenos Aires.³³ Delta then booked the plaintiffs on the next available flight on the following day.³⁴ Although the plaintiffs demanded rebooking on a flight to Santiago, Chile, departing in 20 minutes, Delta could not undertake this transaction within the truncated time period between the request and the flight’s imminent departure.³⁵

Granting summary judgment on the claims, the district court determined that Delta took all reasonable measures as it was impossible for the inbound flight to take off in the face of an air traffic control mandate, and there was nothing unreasonable about dispatching the gate agents in the order the flights arrived, as opposed to servicing the plaintiffs’ flight first.³⁶ Turning to the question of Delta’s rebooking and whether it acted reasonably when it failed to book the Santiago flight, the court determined Delta’s actions were reasonable in light of the time needed to secure connections on another carrier and the limited time remaining prior to the flight’s departure.³⁷

Even though an airline may be confronted with unpreventable delays due to acts of God, an airlines’ measures may be deemed insufficient if it acted unreasonably in rebooking the passenger’s flight.³⁸ In Giannopoulos v. Iberia Líneas Aéreas de España, No. 11 C 775, 2012 WL 5499426 (N.D. Ill. 2012), the plaintiffs booked a flight from Chicago to Madrid to Athens. Due to the repeated volcanic eruptions of Eyjafjallajökull in Iceland, Iberia rerouted the inbound flight to Chicago around the forecasted ash clouds, causing it to arrive two hours late.³⁹ The plaintiffs’ flight to Madrid consequently departed more than two hours behind schedule.⁴⁰ This outbound flight path was then adjusted to circumvent the ash cloud, adding 1,100 nautical miles and an additional hour and 30 minutes of flight time.⁴¹ As a result, the plaintiffs had 37 minutes to make their connecting flight in Madrid, so Iberia offered them a flight to Vienna with a connection to Athens on another airline, which they accepted.⁴² The plaintiffs would only have a 35-minute window in Vienna to make their connection.⁴³ Given further volcanic complications, their flight to Vienna was delayed and they missed their connection, arriving in Athens one day after their intended arrival.⁴⁴

Although Giannopoulos involved a delay claim under Regulation No. 261/2004 of the European Parliament and European Council (commonly known as EU 261), it contained the same reasonable measures defense as art. 19 of the Montreal Convention within art. 5(3) of the regulation.⁴⁵ Thus, the court looked to case law under the convention for the interpretation of this defense and its analysis.⁴⁶ Ultimately, Iberia was not faulted for its inability to prevent the delays caused by the reroutings due to the volcanic ash clouds.⁴⁷ However, Iberia failed to take reasonable measures in the rebooking process as it booked the plaintiffs on a flight with a 35-minute connection window.⁴⁸ Although Iberia did not believe the plaintiffs could make a 37-minute connection in Madrid, it inexplicably booked a connection in Vienna with only 35 minutes between flights.⁴⁹ Under these circumstances, an issue of fact existed regarding the reasonableness of Iberia’s actions and its potential liability.⁵⁰

Once a court determines whether an airline took all reasonable measures in preventing the delay, the analysis does not end. The Montreal Convention contains specific regulations as to the amount of recoverable damages as well as the types of recoverable damages.

Recoverable Damages Under the Montreal Convention 
Once it has been established that the passenger’s claim for delay damages would fall within the purview of the Montreal Convention, and that the airline did not take all reasonable measures to avoid the damages, or that it was impossible for it to take such measures, the passenger can then determine the type and amount of damages available pursuant to the Montreal Convention. 

The amount of damages available to a passenger is contained within art. 22. Specifically, art. 22 provides that, in the case of damage caused by delay as specified in art. 19, the liability of the carrier is limited to 4,150 special drawings rights (SDRs). That figure has since been adjusted to 4,694 special drawings rights,⁵¹ which equates to approximately $7,237 under current conversion rates. An airline’s liability may occasionally exceed the 4,694 SDR in the rare instance in which a passenger can prove reckless misconduct on the part of the airline.⁵² Given the rarity of circumstances implicating the heightened standard of reckless misconduct, the balance of this article focuses on the recoverable delay damages under normal circumstances. 

In general, passengers may recover for economic losses that follow delay pursuant to the Montreal Convention.⁵³ Courts have interpreted art. 19 to allow for the recovery of compensatory damages, including physical and financial injuries as well as damages for “inconvenience.”⁵⁴ Art. 19, however, does not permit the recovery of emotional harm damages, such as “pain and suffering.”⁵⁵ The reasonably foreseeable compensatory damages that are encompassed within art. 19 generally include out-of-pocket expenses,⁵⁶ economic damages due to lost work,⁵⁷ compensation for physical illnesses,⁵⁸ and damages related to inconvenience.⁵⁹ Just as passengers may not recover for emotional harm damages,⁶⁰ they may not recover for the cost of their airfare.⁶¹ 

In Rubin v. Air China Ltd., No. 5:10-CV-05110-LHK, 2011 WL 2463271 at *1 (N.D. Cal. 2011),the District Court for the Northern District of California analyzed a claim made by a passenger for pain and suffering as well as monetary damages that stemmed from a 13.5-hour delay on an Air China flight from Beijing, China, to San Francisco, California. In Rubin, the plaintiff claimed that he incurred pain and suffering associated with “being trapped in a freezing Beijing airport” as well as out-of-pocket expenses including taxi fare, the cost of a round-trip ticket from San Francisco to Beijing, lost work, and physical illness with attendant medical treatment costs.⁶² 

In analyzing the type of damages that are recoverable, the court noted that art. 19 allows for recovery of “foreseeable, consequential damages such as lost wages or profits that are occasioned by the delay.”⁶³ As such, a passenger may also recover for lost days of work or business opportunities if the plaintiff can prove that his lost days of work were occasioned by delay and resulted in financial injury.⁶⁴ In Rubin, the plaintiff claimed that he missed work as a result of his 13.5-hour delay in his flight from Beijing to San Francisco. The court noted that, to the extent the plaintiff was able to prove that he sustained pecuniary injuries, he would be entitled to recovery.⁶⁵ Therefore, the court denied the defendant’s motion for judgment on the pleadings.⁶⁶ In doing so, the court relied on the district court holding in Ikekpeazu v. Air France, No.3:04-CV-0711,2004 WL 2810063 (D. Conn. 2004). 

In Ikekpeazu, the plaintiff was a busy surgeon who claimed he was required to cancel various surgeries, procedures, and consultations he was scheduled to perform during his nearly week-long delay.⁶⁷ The court held that the plaintiff’s “allegations of financial injury resulting from the delay in his return to practice provide[d] a basis for a claim” under art. 19.⁶⁸

In addition to recovery for economic losses related to lost business opportunities, courts will also allow passengers to recover art. 19 damages for consequential out-of-pocket expenses directly attributed to the delay.⁶⁹ For example, the court in Rubinnoted that taxi fare for the cost of the plaintiff’s transportation from the San Francisco Airport to his home would be a recoverable out-of-pocket expense.⁷⁰ In Harpalani v. Air India, Inc., 622 F. Supp. 69, 71 (N.D. Ill. 1985),the district court determined that recoverable out-of-pocket expenses can also include the cost of meals and lodging, inconvenience, and telephone expenses. 

Although prepaid vacation expenses are generally recoverable, courts have not extended this category of damages to include reimbursement for the cost of the delayed flight if the passenger ultimately used the ticket to complete his or her travels. InRubin, the defendant airline transported the plaintiff roundtrip from Beijing to San Francisco, albeit with a delay, eliminating the cost of the round-trip ticket as an element of the plaintiff’s damages claim.⁷¹ The court noted that the Montreal Convention only allows for recovery for damages occasioned by a flight delay,⁷² and found that the plaintiff did not sustain an economic loss occasioned by the delay as he actually received the benefits of his round-trip ticket.⁷³ In so ruling, the court relied on the holding in Fields v. BWIA Int’l Airways, Ltd., No. 99-CV-2493, 2000 WL 1091129 at *5 (E.D.N.Y. 2000), in which the district court noted that the plaintiff actually flew to her destination the day following her scheduled departure and, therefore, could not claim total nonperformance under the contract to be entitled to damages. 

Emotional Harm Damages 
In addition to the out-of-pocket expenses encompassed within art. 19’s delay damage provisions, passengers also frequently attempt to claim entitlement for emotional harm damages or inconvenience damages. These typically take the form of annoyance and pain and suffering as well as the general distress of being trapped in an unfamiliar location in sometimes less-than-ideal circumstances. 

Pertinently, passengers may not recover for any emotional damages under the Montreal Convention. Art. 19 excludes damages for frustration, anguish, physical, or mental upset, and pain and suffering.⁷⁴ In Rubin, the court noted that “purely emotional harm damages,” such as “pain and suffering,” as a result of being “trapped in a freezing Beijing airport” were not recoverable under the Montreal Convention.⁷⁵ The court noted that, while the plaintiff may be permitted to recover for emotional damages caused by physical injuries, the court confirmed that “pain and suffering” independent of any physical injuries or illness are not recoverable. In so ruling, the court granted Air China’s motion for judgment on the pleadings as it relates to that claim. Similarly, in Campbell v. Air Jamaica, Ltd., 891 F. Supp. 2d 1341 (S.D. Fla. 2012), the district court for the Southern District of Florida dismissed the plaintiff’s claims for emotional injuries under the Montreal Convention in which he claimed he 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.”⁷⁶ 

Distinguishable from emotional harm damages, including frustration, mental anguish, and pain and suffering, is a separate category of damages called “inconvenience” damages, which are occasionally recoverable. In Daniel, the district court noted that inconvenience damages: 

do not fall within the rubric of “emotional distress.” Time is money, after all, and the court finds that the inconvenience of being trapped for hours in an unfamiliar airport is a compensable element of damages for delay in air travel under the Warsaw Convention and domestic law, even in the absence of economic loss or physical injury.⁷⁷ 

Even in so ruling, the court noted that the amount of compensation could potentially “vary dramatically” depending on what the flight delay prevented the passenger from doing, thus, suggesting the necessity of an economic component to inconvenience damages claims.⁷⁸ Instructively, few courts have followed suit in allowing compensation for “inconvenience” under art. 19.⁷⁹ In Vumbaca v. Terminal One Group Assoc., L.P., 859 F. Supp. 2d 343, 368 (E.D.N.Y. 2012),the Eastern District of New York stated that “mere inconvenience does not support a claim under [art.] 19,” and noted that since plaintiff’s only timely claims were for noneconomic damages, she could not recover under art. 19.⁸⁰ Courts have generally refined the recoverable scope of inconvenience damages to require some sort of economic damages and have required that the damages not merely recharacterize unrecoverable emotional harm damages. In Rubin, for example,the court noted these types of “inconvenience” damages may occasionally be recoverable if the passenger can prove the inconvenience suffered has an economic component independent of other economic damages claims.⁸¹ The court noted that such “inconvenience” damages must “truly encompass economic damages, and cannot simply be based upon the ‘discomfort, annoyance, and irritation’ [p]laintiff experienced during the delay.”⁸² The court in Rubin determined that the plaintiff did not make such a showing, and granted the defendant’s motion for judgment on the pleadings. The ruling was consistent with the Fifth Circuit’s holding in Lee v. American Airlines, 355 F.3d 386, 387 (5th Cir. 2004),in which the appellate court determined that the loss of a “refreshing memorable vacation” was simply a recharacterization of unrecoverable mental anguish damages.⁸³ 

Conclusion 
International passengers seeking any form of recourse against an airline for delays related to the Polar Vortex, or any other delay, should be familiar with the limited rights available for recovery. Given that the Montreal Convention specifically regulates and limits airline liability, careful consideration of the burden of proof, defenses, and available remedies is necessary in deciding whether to make a delay damage claim.

¹ See James Barron & Henry Fountain, Polar Vortex: Temperatures Fall Far, Fast, N.Y. Times, Jan. 6, 2014, available athttp://www.nytimes.com/2014/01/07/nyregion/in-new-york-temperatures-fall-far-fast.html?_r=0.

² See Alex Davis, 6,000 Flights Cancelled in 2 Days as Polar Vortex Freezes US, Jan. 7, 2014,http://www.businessinsider.com/polar-vortex-flight-cancellations-2014-1.

³ See Deborah Baran, JetBlue Passengers Wait While Pilots Rest, http://guardianlv.com/2014/01/jetblue-passengers-wait-while-pilots-rest/.

⁴ See Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999 [hereinafter Montreal Convention], reprinted in S. Treaty Doc. No. 106-45, 1999 WL 33292734 (2000).

⁵ Id.

⁶ See Current Lists of Parties to Multilateral Air Law Treaties, Convention for the Unification of Certain Rules for International Carriage by Air, available at http://www.icao.int/secretariat/legal/List%20of%20Parties/Mtl99_EN.pdf.

⁷ See Montreal Convention, art. 29 and art. 19.

⁸ See S. Rep. No. 108-8 at 2 (2003).

⁹ Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 3014, T.S. No. 876 (1934) [hereinafter Warsaw Convention].

¹⁰ Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929, Sept. 28, 1955, 478 U.N.T.S. 371 (commonly known as the Hague Protocol of 1955). 

¹¹ Montreal Protocol No. 4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as amended by the Protocol done at the Hague on 28 September 1955, Sept. 25, 1975, Message Transmitting Two Related Protocols, reprinted in S. Exec. Rep. No. 105-20, art. XVII(2) (commonly known as Montreal Protocol No. 4).

¹² See S. Rep. No. 108-8 at 2 (2003).

¹³ See S. Rep. No. 108-8 at 87 (2003) (“[E]fforts were made in the negotiation and drafting process to retain existing language and substance of other provisions to preserve judicial precedent relating to other aspects of the Warsaw Convention, in order to avoid unnecessary litigation over issues already decided by the courts under the Warsaw Convention and its related protocols….The language of the prior convention and protocols was tracked specifically for the purpose of preserving, to the greatest extent possible, the validity of judicial precedents that apply to the previous convention and protocols.”).

¹⁴ See Ugaz v. American Airlines, Inc., 576 F. Supp. 2d 1354, 1360 (S.D. Fla. 2008); Paradis v. Ghana Airways Ltd., 348 F. Supp. 2d 106, 111 (S.D.N.Y. 2004).

¹⁵ See Montreal Convention, art. 1(1). 

¹⁶ Montreal Convention, art. 1(2).

¹⁷ Montreal Convention, art. 29 (emphasis added). 

¹⁸ Montreal Convention, art. 19. 

¹⁹ The Montreal Convention, art. 19, governs those cases in which the airline made flight arrangements for the passenger on a later flight. See Ikekpeazu v. Air France, No. 3:04-CV-0711, 2004 WL 2810063 (D. Conn. 2004) (order granting in part and denying in part motion to dismiss); Fields v. BWIA Int’l Airways Ltd., No. 99-CV-2493, 2000 WL 1091129 (E.D.N.Y. 2000) (order granting summary judgment); Sassouni v. Olympic Airways, 769 F. Supp. 537 (S.D.N.Y. 1991) (order on motion to dismiss). However, when a passenger is “bumped” from a flight and the airline does not rebook that passenger, those claims sound in nonperformance of a contract, as opposed to damages due to a flight delay, and are not subject to art. 19. See Wolgel v. Mexicana Airlines, 821 F.2d 442 (7th Cir. 1987); In re Nigeria Charter Flights Contract Litigation, 520 F. Supp. 2d 447 (E.D.N.Y. 2007) (order granting in part and denying in part summary judgment). 

²⁰ See Palma v. American Airlines, Inc., No. 09-23212-CIV, 2010 WL 5140592 at *5 (S.D. Fla. 2010) (analyzing decisions of various federal courts in which the phrase “all necessary measures” was defined).

²¹ Verdesca ex rel., v. American Airlines, Inc., No. 3:99–CV–2022–BD, 2000 WL 1538704 (N.D. Tex. 2004). 

²² Id.

²³ Helge Management, Inc. v. Delta Air Lines, Inc., No. 11-10299-RBC, 2012 WL 2990728 at *4 (D. Mass. 2012).

²⁴ Id.

²⁵ As explained below, acts of God or air traffic control mandates are likely out of the airline’s control.

²⁶ Helge Management, 2012 WL 2990728 at *1. 

²⁷ Id. at *2. 

²⁸ Lee v. American Airlines, Inc., 2004 WL 2624647 at *4 (N.D. Tex. 2004). In Lee, the district court noted that “American acted reasonably in attempting to repair [the initial aircraft] and in attempting to secure another American crew and aircraft rather than immediately — upon notice of a delay — transferring all passengers to another airline’s flight.” 

²⁹ Helge Management, Inc., 2012 WL 2990728 at *6.

³⁰ Id.

³¹ Cohen v. Delta Air Lines, Inc., 751 F. Supp. 2d 677, 678 (S.D.N.Y. 2010).

³² Id.

³³ Id.

³⁴ Id. at 679.

³⁵ Id. Delta did not have a connecting flight between Santiago, Chile, and Buenos Aires, Argentina. Id. This would have required Delta to search for alternative connecting flights on other airlines with which Delta may not have had a contract. Id.

³⁶ Id. at 680.

³⁷ Id.

³⁸ See Giannopoulos v. Iberia Líneas Aéreas de España, No. 11 C 775, 2012 WL 5499426 (N.D. Ill. 2012).

³⁹ Id. at *2.

⁴⁰ Id.

⁴¹ Id.

⁴² Id.

⁴³ Id.

⁴⁴ Id.

⁴⁵ Id. at *4.

⁴⁶ Id.

⁴⁷ Id. at *5-6.

⁴⁸ Id.

⁴⁹ Id.

⁵⁰ Id. at *6. Another example of an airline taking all reasonable measures is Peralta v. Continental Airlines, Inc., No. C-98-1252 MJJ, 1999 WL 193393 (N.D. Cal. 1999). It was undisputed the plaintiff was removed from his flight because he failed to check in and his boarding pass appeared altered, requiring a security investigation. Once the airline determined the ticket was valid, security personnel attempted to hold the airplane so the plaintiff could board, but it was too late. The plaintiff was booked on the next available flight, departing one hour later to Costa Rica. Under these circumstances, Continental satisfied the reasonable measures standard and was exonerated from any liability for the plaintiff’s delay damages.

⁵¹ See U.S. Department of Transportation, Inflation Adjustments to Liability Limits Governed by the Montreal Convention Effective December 30, 2009, available at http://airconsumer.ost.dot.gov/rules/Notice_11_09_09.pdf. 

⁵² See Montreal Convention, art. 22(5).

⁵³ Rubin v. Air China Ltd., No. 5:10-CV-05110-LHK, 2011 WL 2463271 at *3 (N.D. Cal. 2011). 

⁵⁴ Id. at *2. 

⁵⁵ Daniel v. Virgin Atlantic Airways, Ltd., 59 F. Supp. 2d 986, 993 (N.D. Cal. 1998); see also Rubin, 2011 WL 2463271 at *2 (finding that “purely emotional injuries” caused by delay are not available under the convention and noting that “to the extent [p]laintiff seeks to recover for ‘pain and suffering’ independent of any physical injuries or illness, such damages are not recoverable”); Elnajjar v. Northwest Airlines, Inc., Nos. H-04-680, H-04-681, 2005 U.S. Dist. Lexis 36792 at *15, n.2 (S.D. Tex. 2005) (“Because [p]laintiffs do not allege they suffered any economic loss or physical injury…they cannot meet the conditions for recovery under [art.] 19.”); Ikekpeazu, 2004 U.S. Dist. Lexis 24580 at *4-5 (dismissing [p]laintiff’s claims for emotional injury under art. 19); Fields, 2000 U.S. Dist. LEXIS 9397 at *19. 

⁵⁶ Rubin, 2011 WL 2463271 at *5. 

⁵⁷ Id. at *3 (internal citations omitted). 

⁵⁸ Id. at *4. 

⁵⁹ Daniel, 59 F. Supp. 2d at 994. 

⁶⁰ Rubin, 2011 WL 2463271 at *2. 

⁶¹ Id. at *5; see also Fields, 2000 WL 1091129 at *5 (“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 non-performance.”). 

⁶² Rubin, 2011 WL 2463271 at *2. 

⁶³ Id. at *3 (citing Daniel, 59 F. Supp. 2d at 993). 

⁶⁴ Id. at *3. 

⁶⁵ Id. 

⁶⁶ Id. 

⁶⁷ Ikekpeazu, 2004 WL 2810063at *1. 

⁶⁸ Id. at *2. 

⁶⁹ See Rubin, 2011 WL 2463271 at *5; see also Campbell v. Air Jamaica, Ltd., 891 F. Supp. 2d 1338, 1341 (S.D. Fla. 2012) (noting that damages for delay under art. 19 are “limited to economic damages, such as taxi fare that a passenger must pay if he is forced to find alternate transportation from the airport due to flight delays”) (internal citations omitted); Harpalani v. Air India, Inc., 622 F. Supp. 69, 71 (N.D. Ill. 1985) (analyzing the Warsaw Convention).

⁷⁰ Rubin, 2011 WL 2463271 at *5.

⁷¹ Id. 

⁷² Id. 

⁷³ Id. 

⁷⁴ Id. at *2. 

⁷⁵ Id. 

⁷⁶ Campbell, 891 F. Supp. 2d at 1341. 

⁷⁷ Daniel, 59 F. Supp. 2dat 994. 

⁷⁸ Id. at 994,n. 6. 

⁷⁹ Vumbaca v. Terminal One Group Assoc., L.P.,859 F. Supp. 2d 343, 368 (E.D.N.Y. 2012).

⁸⁰ Id. 

⁸¹ Id. at *4. 

⁸² Id. 

⁸³ Lee, 355 F.3d at 387.

Marty Fulgueira Elfenbein is a partner at RumbergerKirk, P.A., where she practices in the areas of aviation law, product liability, and casualty defense. In the area of aviation law, she has tried numerous cases to verdict, including cases involving allegations of severe turbulence, false imprisonment, and catastrophic aviation accidents, among others. 

Katherine Abigail Roberts is an associate at RumbergerKirk, P.A., where she practices in the area of aviation law, construction litigation, and casualty defense. In the area of aviation law, she has represented commercial air carriers in numerous jurisdictions throughout the U.S. in cases involving catastrophic aviation accidents, and has represented commercial air carriers in numerous other aspects of aviation litigation in Florida.