The District Court for the Eastern District of New York recently held that an airline passenger’s refusal to get off an airplane after being ordered to do so was not an “accident” under the Warsaw or Montreal Conventions, and that state law claims for an airline’s refusal to sell a ticket were preempted by federal law.
The plaintiff in Dogbe v. Delta Air Lines, Inc., a 71-year-old man, booked a trip from Norfolk, Virginia to Ghana on Delta. Unfortunately, his connecting flight at Kennedy International was delayed for three hours. Dogbe claimed that Delta made him wait in line and never offered him a seat, causing him pain and discomfort in his legs. His wait proved fruitless, and Delta sent Dogbe back to Norfolk with a voucher for the same trip a few days later. For his second attempt, Dogbe requested wheelchair assistance at Kennedy because of lingering leg pain. Dogbe alleged that when he boarded the plane for Ghana, he and Delta employees engaged in a series of conversations related to his request for a seat with more leg room, and that Delta ultimately requested that he leave the airplane. When Dogbe asked a Delta employee why, the employee called police, who Dogbe says treated him roughly. After Dogbe was released from custody, and after a trip to the emergency room, he went back to Kennedy to try his luck with KLM Airlines. KLM, a partner with Delta in the SkyTeam airline alliance, refused to sell Dogbe a ticket because Delta flagged his name.
Dogbe filed a 22-count complaint against Delta, KLM, and the police, alleging various tort claims and violations of New York anti-trust and deceptive business practices statutes. The court dismissed all Dogbe’s claims against the airlines as preempted by the Warsaw and Montreal Conventions and the Airline Deregulation Act.
It made no difference which Convention applied, because the preemptive effect of the Warsaw Convention and the more recent Montreal Convention is the same. Both Conventions bar claims for injuries suffered in international air travel that are not provided for in the Conventions. Thus, a person injured in international air travel can bring a claim under the applicable Convention or not at all. Under both Conventions, a plaintiff can recover only if his injuries resulted from an “accident,” which, for purposes of the Conventions, occurs when the injury is caused by an unexpected or unusual event that is external to the passenger. The court found that Dogbe’s injuries were not caused by an accident. Rather, they were caused by his refusal to comply with Delta’s order to get off the airplane. While an accident may occur when an airline carries out its procedures in an unreasonable manner, there was nothing unreasonable about refusing to seat a passenger in a seat he did not pay for. Since Dogbe’s injuries were not caused by an accident under the Conventions, his tort claims were preempted.
Dogbe also alleged that KLM’s refusal to sell him a ticket was the result of unlawful collusion and violated New York’s anti-trust and deceptive business practices statutes. The Conventions had no effect on these claims because they did not arise on the aircraft or in the course of embarking or disembarking. Nevertheless, the Airline Deregulation Act of 1978 (49 U.S.C. § 41713(b)) forbids states from enacting or enforcing any law related to a price, route, or service of an air carrier. An air carrier’s “service” under the Airline Deregulation Act includes not only transportation, but also incidental matters like boarding, baggage handling, and beverage service. The court found it unquestionable that ticketing and boarding procedures are an air carrier service, so Dogbe’s statutory claims were also preempted.
Any other holding would have a negative effect on the security of international flights. Safety and security, not potential tort liability, ought to be the guiding principle of a crewmember’s decision to eject a problematic passenger. Likewise, an airline’s commercial alliances should have no bearing on the airline’s ability to refuse to fly a potentially problematic passenger. The Dogbe decision should provide some comfort to airline employees in making these difficult decisions.