Written by attorney Vladimir M. Gorokhovsky

Liability of Airline for Damages Caused by Delay and Cancellation of International Airfare

Pursuant to Article 19 of the Montreal Convention, an airline is strictly liable up to the sum of 4150 SDR (Special Drawing Rights) for damages sustained by a passenger as direct and proximate cause of delay or cancellation of international airfare. See, generally, Multilateral Convention for International Carriage by Air, Montreal, May 28, 1999., S. Treaty Doc. No. 106-45, reprinted in 1999 WL 33292734 (2000). This general rule of strict liability applies only to international flights and is subject to a few well recognized defenses (such as “climatic defense," “act of God", boycotts and etc.). Sometimes, it is possible to overcome the above-referenced cap on damages if facts will show reckless disregard on the part of airline. See, Kupferman v. Pakistan International Airlines, 108 Misc. 2d 485 (N.Y. Civ. Ct. 1981)(holding that a fifteen-day delay in delivery of a plaintiff’s baggage is sufficient to demonstrate willful misconduct under the Warsaw Convention).

Furthermore, the statute of limitation as set forth by Article 35(1) of the Montreal Convention is two (2) years. The Article states in pertinent part that “the right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped." Id.

Although terms of tariff filed by airline with DOT are generally binding upon a passenger, however, if tariff’s terms are conflicting with specific remedies afforded to international air passengers by the Montreal Convention, such conflicting terms of tariff will not be enforced. See, Muoneke v. Compagnie Nationale AirFrance (5thCir.Tex. May 12, 2009).

Unfortunately, majority of disputes arising between air passenger and an airline are unlikely to be resolved in passenger’s favor to fullest extent allowed by the Montreal Convention unless civil action for money damages is filed against an airline in a local federal district court within the state of passenger’s domicile.

Importantly, civil action against airline filed in local state court will be swiftly removed by an airline to a federal district court because the Montreal Convention preempts state law claims against airlines with exception of breach of contract claim. American Airlines, Inc. v. Wolens, 115 S.Ct. 817, 513U.S. 219, 130 L.Ed.2d 715, 63 USLW 4066 (U.S.Ill.,1995)(holding that Airline Deregulation Act did not preempt a civil action against airline based on state’s contract law theory).

Thus, civil action against airline resulting from delay or cancellation of international airfare flight under auspices of Article 19 of the Montreal Convention shall be only filed in the federal district court having jurisdiction upon passenger’s state of domicile or a place where a contract of purchasing of airfare was formed. Cf, Narkiewicz-Laine v. Scandinavian Airlines Systems, 587 F.Supp.2d 888 (N.D.Ill., 2008).

Although “purely emotional damages" such as damages for frustration, anguish, physical or mental upset independent of any physical injury may not be recovered under the Montreal Convention, see, e.g. Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991), nevertheless a courts have allowed recovery for physical and financial injuries, and even inconvenience. Daniel v. Virgin Atl. Airways Ltd, 59 F. Supp. 2d 986, 992 (N.D. Cal. 1998) (denying recovery for emotional injuries, but permitting claims for physical injuries and economic damages, including inconvenience); Ikekpeazu v. Air France, No. 3:04cv00711 (RNC), 2004 U.S. Dist. LEXIS 24580 4 (D. Conn. Dec. 6, 2004) (recognizing financial injury as a cognizable claim, but not emotional injury). Also, passenger may recover damages for economic loss under the Montreal Convention. See, e.g.,Ikekpeazu, 2004 U.S. Dist. LEXIS 24580 at *4; Lee v. American Airlines, Inc., No. 3:01-CV-1179-P, 2002 U.S. Dist. LEXIS 12029 at *13 (N.D. Tex. July 2, 2002), aff'd, 355 F.3d 386, 387 (5th Cir. Tex. 2004). Passenger can also recover loss of work damages resulting at financial injury as economic damages. See, Ikekpeazu, 2004U.S. Dist. LEXIS 24580 at *4.

To evaluate potential claim against an airline resulting from delay or cancellation of international airfare it is advisable to consult with an attorney, who is specializing in enforcement of air passenger’s rights afforded to them by the Montreal Convention. Such “delay and cancellation" claims are handled by lawyers on contingency fees basis. Successful passenger can recover money damages up to 4694 SDR or $7500 Court’s costs are also recoverable but attorney’s fees generally are not recoverable with some very narrow exception. See, e.g. In re September 11 Litigation, 500 F.Supp.2d 356 (S.D.N.Y., 2007). Good luck and best regards.

Additional resources provided by the author

* Multilateral Convention for International Carriage by Air, Montreal May 28, 1999., S. Treaty Doc. No. 106-45, reprinted in1999 WL 33292734 (2000). * The Montreal Convention is available in the UNITED STATES CODE SERVICE (U.S.C.S.) volume titled International Agreements at 635 (2007). It is also available at S. Treaty Doc. No. 106-45, 1999 WL 33292734 at 29-45. * Press Statement, United States Department of State, Ratification of the 1999 Montreal Convention (Sept. 5, 2003), available at 23851pf.htm; Press Release, United States Department of Transportation, United States Ratifies 1999 Montreal Convention, Putting Treaty Into Effect (Sept. 5, 2003), available at affairs/dot10303.htm.

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