The opinion of the court was delivered by: WEBER
In January of 1981, Trans World Airlines, Inc. (TWA) began a promotional campaign in the Pittsburgh market. In this campaign TWA advertised non-stop, economical air service from Pittsburgh to London, England, beginning on May 18. This service was designed to provide daily non-stop air connections between these two cities. In order to obtain this special service passengers were required to purchase their tickets by March 15, 1981. This service was subject to several limitations and the offer was scheduled to expire on September 14.
On February 6, 1981, the plaintiff in this action, Ina Brunwasser, and her father purchased two round trip tickets from TWA for this Pittsburgh to London service. Plaintiff was scheduled to depart for London on September 1, 1981 and return to Pittsburgh on September 8, 1981.
Following the plaintiff's purchase of these tickets TWA decided to suspend this special service, citing low yields on its off peak flights as the reason for its decision. As a result of this suspension of service some passengers holding tickets on non-stop flights from Pittsburgh to London had their flights cancelled. TWA contacted these passengers, including the plaintiff, and offered them three alternatives to the daily non-stop flights previously provided. Passengers holding tickets on one of these cancelled flights could, at no additional cost: (1) take a non-stop flight from Pittsburgh to London on another day; (2) travel from Pittsburgh to London on the date originally scheduled, but travel by way of New York; or (3) receive a refund of the purchase price of their tickets.
Plaintiff's complaint in this case is styled as a class action.
The complaint proceeds in five counts, and alleges that the defendant's unilateral rescheduling of these flights violates the Warsaw Convention, 49 U.S.C. § 1502, note (Count I), and Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 Pa.S.A. 201-1 et seq. (Count II). Plaintiff also contends that the defendant's conduct constitutes a breach of its contract of carriage with her (Count III), and a fraudulent misrepresentation of the terms of this special offer (Count IV). To compensate her for these wrongs the plaintiff seeks compensatory and punitive damages, specific performance of her contract of carriage (Count V) and other injunctive relief. We have previously denied injunctive relief. See also 518 F. Supp. 1321.
This case is now before us on defendant's motion for summary judgment. For the reasons set forth below, we believe that the plaintiff's complaint fails to state a cause of action for either breach of contract or violation of the Warsaw Convention. Accordingly, Counts I and III of the plaintiff's complaint are dismissed.
In contrast, the plaintiff's claims under Pennsylvania statutory and common law are not subject to summary judgment dismissal at this time. The allegations made by the plaintiff in these counts of her complaint raise questions of fact regarding the defendant's intentions at the time this special offer was made, questions which cannot be resolved on this record. Therefore, with respect to Counts II and IV of the plaintiff's complaint, defendant's motion will be denied.
Having dismissed plaintiff's claims under the Warsaw Convention, we feel that this court no longer has subject matter jurisdiction over this dispute. Therefore, we will order this matter remanded to the Court of Common Pleas of Allegheny County for further proceedings.
In this country the relationship between air carriers and passengers is subject to regulation on several different levels. At the outset that relationship is a contractual one. Therefore, the rights and duties of passengers and carriers are defined by the terms of their private agreement. In addition, however, air transportation, and the dealings between air carriers and passengers, are subject to governmental control and regulation. This regulation takes two forms.
Initially, the rights and duties of carriers and passengers are set forth in the tariffs filed by the carrier with the Civil Aeronautics Board. Under federal law all air carriers are required to file tariffs with the Civil Aeronautics Board and maintain these tariffs available for public inspection. In these tariffs the carrier describes its rates, fares, and charges for all air transportation it provides. 49 U.S.C. § 1373. These tariffs may also include limitations on the liability of the carrier; Tishman & Lipp, Inc. v. Delta Airlines, 413 F.2d 1401 (2d Cir. 1969), and impose other reasonable restrictions on air travel. The Civil Aeronautics Board reviews these proposed tariffs and, if it finds that any tariff is inconsistent with CAB policy, the Board is empowered to reject that tariff. Tariffs rejected by the Board are void. 49 U.S.C. § 1373(a).
Once a tariff is filed and approved by the CAB it becomes "conclusive and exclusive, and the rights and liabilities between airlines and their passengers are governed thereby." Tishman & Lipp, Inc. v. Delta Airlines, 413 F.2d at 1403; Emery Air Freight Corp. v. United States, 205 Ct. Cl. 49, 499 F.2d 1255, 1259 (Ct.Cl.1974); ("the tariffs on file with the CAB, if valid, are the controlling factor with respect to the services provided by the carrier.") Moreover the provisions of the tariff, once approved, become part of the contract of carriage between the airline and passengers, even if not expressly mentioned in the agreement itself. Wolf v. Trans World Airlines, Inc., 544 F.2d 134, 137 (3d Cir. 1976); Tishman & Lipp, Inc. v. Delta Airlines, 413 F.2d at 1404. Therefore, these tariffs, along with the terms of the parties' private agreement, form the basis of the legal relationship between airlines and their passengers.
Tariffs are not the only form of government regulation defining the relationship between air carriers and passengers. When, as in this case, the parties are engaged in international air travel, the rights and duties of air carriers are set not only by contract and tariff but also by treaty.
The principle treaty governing international air travel is the Warsaw Convention, 49 U.S.C. § 1502 note. The Convention was drafted in the 1920's during the infancy of international air transportation. At that time it was felt that a uniform body of law governing international air transportation was necessary in order to create an atmosphere favorable to the development of this industry. See, Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1258 (2d Cir. 1977); Evangelinos v. Trans World Airlines, Inc., 550 F.2d 152, 155 (3d Cir. 1977). In order to create this atmosphere the Convention standardized transportation documents for all international flights; Articles 3-16, defined the duties of air carriers to their passengers; Articles 17-20, and established limitations on recoverable damages in cases involving injuries resulting from international flights. Articles 20, 22 and 23.
In this case the plaintiff alleges that TWA's decision to discontinue its daily non-stop service from Pittsburgh to London was both a breach of contract and a violation of the Warsaw Convention. We disagree. Accordingly, we will grant the defendant's motions for summary judgment with respect to Counts I and III of the plaintiff's complaint.
Turning initially to the plaintiff's breach of contract claim, the terms of this contract of carriage are set forth in writing on the ticket issued by TWA to the plaintiff. The terms of this agreement are clear and unambiguous. Because the agreement between these parties is embodied in an unambiguous written instrument, its interpretation presents a question of law. See, Hewes v. McWilliams, 412 Pa. 270, 194 A.2d 339 (1963). Similarly the interpretation of TWA's tariffs, which also form part of this agreement, presents a question of law for the court. Emery Air Freight Corp. v. United States, 499 F.2d at 1259. Accordingly these issues are properly before the court on defendant's motion for summary judgment. See, Fed.R.Civ.P. 56.
The written contract between the plaintiff and TWA unambiguously provides that "times shown in time table or elsewhere are not guaranteed and form no part of this contract. Carrier may without notice substitute alternate carriers or aircraft, and may alter or omit stopping places shown on the ticket in case of necessity. Schedules are subject to change without notice. Carrier assumes no responsibility for making connections." (paragraph 9). The contract goes on to state that "no agent, servant or representative of (TWA) has authority to alter, modify or waive any provision of this contract." (paragraph 11). The agreement also expressly subjects air transportation with TWA to the terms and conditions set forth in that carrier's tariffs.
Two of these tariff provisions are particularly relevant here. The first is Rule 85 of the tariffs which states that "times shown in time tables or elsewhere are approximate and not guaranteed, and form no part of the contract of carriage. Schedules are subject to change without notice and carrier assumes no responsibility for making connections. Carrier will not be responsible for errors or omissions either in time tables or other representations of schedules. No employee, agent or representative of carrier is authorized to bind carrier by any statements or representation as to the dates or times of departure or arrival, or of the operation of any flight." Rule 85(A). This tariff further provides that "carrier undertakes to use its best efforts to carry passenger and baggage with reasonable dispatch, but no particular time is fixed for the commencement or completion of carriage. Subject thereto, carrier may, without notice, substitute alternate carriers or aircraft and may alter or omit stopping places shown on the face of the ticket in case of necessity." Rule 85(B)(1).
In addition the contract between the plaintiff and defendant was subject to International Passenger Rules Tariff number IPR-2. This tariff describes the responsibility of a carrier to its passengers "in the event (the) carrier cancels a flight, fails to operate according to schedule, fails to stop at a point to which the passenger is destined or is ticketed to stop over (or) substitutes a different type of equipment or class of service...". In such instances the carrier is obliged to either:
(1) carry the passenger on another of its passenger aircraft on which space is available without additional charge ...