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BERNARDI v. APPLE VACATIONS

November 19, 2002

KAREN BERNARDI, ET AL., PLAINTIFFS,
V.
APPLE VACATIONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.

  MEMORANDUM AND ORDER

I. INTRODUCTION

This is an action against Lineas Aereas Allegro S.A. de C.V. ("Allegro"), a foreign airline, by the passengers on a flight from Cancun, Mexico to Newark, New Jersey, based on the allegedly extreme and inhumane conditions suffered by the passengers during the flight. The complaint alleges violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), Pa. Stat. Ann. tit. 73, § 201-1 et seq., misrepresentation, unjust enrichment, intentional infliction of emotional distress, false imprisonment, and negligence under Pennsylvania law, and sundry violations of the Mexican Civil Code.

The case was initially filed in the Court of Common Pleas of Delaware County, and was timely removed to this court. Jurisdiction for removal was predicated on the presence of a federal question based upon the provisions of the Warsaw Convention. The Warsaw Convention, inter alia, establishes a system for regulating the liability of a carrier for personal injuries suffered by passengers in international flights. The United States is a signatory of the Convention.

Plaintiffs have moved to remand the case to state court. Defendant opposes the remand, and has moved to dismiss plaintiffs' complaint. The issue before the court is whether the Warsaw Convention preempts the state law claims based upon "wilful misconduct." Plaintiffs contend that, because the complaint alleges primarily wilful misconduct (not just negligence) on the part of the airline,*fn1 the Warsaw Convention is not implicated. Thus, there is no federal question jurisdiction and the case should be remanded. Defendants counter that the preemptive effect of the Warsaw Convention is plenary and that it reaches not only the state law tort claims based on negligence, but also those state law claims based on alleged wilful misconduct. Thus, plaintiffs' claims should be dismissed.

For the reasons that follow, the court concludes that the Warsaw Convention preempts all of plaintiffs' state law claims, including those based on wilful misconduct. Accordingly, the court will dismiss for lack of subject matter jurisdiction plaintiffs' claims based on violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, and on violations of the Mexican Civil Code. The court also will dismiss plaintiffs' state law claims of misrepresentation, unjust enrichment, intentional infliction of emotional distress, false imprisonment, and negligence with leave to amend their complaint to state causes of action, if appropriate, under the Warsaw Convention.

II. DISCUSSION

A. Applicable Law

The Warsaw Convention*fn2 applies to "all international transportation of persons, baggage, or goods performed by any aircraft for hire." Note following 49 U.S.C. § 40105. The Convention sets forth a comprehensive scheme that defines the liability of international air carriers for personal injuries, damage and loss of baggage and goods, and damage caused by delay. Recognizing "the advantage of regulating in a uniform manner the conditions of . . . the liability of the carrier," id., one of the Convention's overarching purposes is "to accommodate or balance the interests of passengers seeking recovery for personal injuries, and the interests of [international] air carriers seeking to limit potential liability." El Al Israel Airlines, Inc. v. Tseng, 525 U.S. 155, 170 (1999).

The Supreme Court has concluded that, "[g]iven the Convention's comprehensive scheme of liability rules and its textual emphasis on uniformity, [the Court] would be hard put to conclude that the delegates at Warsaw meant to subject air carriers to the distinct, nonuniform liability rules of the individual signatory nations." Id. at 169. Consequently, "recovery for a personal injury suffered `on board [an] aircraft or in the course of any of the operations of embarking and disembarking,' . . . if not allowed under the [Warsaw] Convention, is not available at all." Id. at 161.

Article 17 of the Convention establishes carrier liability for "damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage took place on board the aircraft or in the course of any of the operations of embarking and disembarking." Note following 49 U.S.C. § 40105. Under the 1966 modifications to the Convention worked by the Montreal Interim Agreement, a private accord among international air carriers with connecting points in the United States,*fn3 this provision "subjects international carriers to strict liability for Article 17 injuries sustained on flights connected with the United States." Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 552 (1991); see also In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1286 (2d Cir. 1991) (overruled on other grounds by Zicherman v. Korean Air Lines Co., Ltd., 516 U.S. 217 (1998), as recognized in Brink's Ltd. v. South African Airways, 93 F.3d 1022, 1029 (2d Cir. 1996) ("The framers . . . saw Article 17 as a means of creating liability or at the very least shifting the burden of proof to the carrier.").

While under the Warsaw Convention, strict liability for personal injury is the rule, the impact of the rule is cushioned by correspondingly limiting the damages that may be awarded to $75,000 per passenger.*fn4 The limitation on damages is not applicable, however, where damages are caused by a carrier's "wilful misconduct." Note following 49 U.S.C. § 40105.

B. The Preemptive Effect of the Warsaw Convention

As a general rule, state law claims "are barred by the Warsaw Convention, because the Convention provides the exclusive cause of action for injuries suffered during international flights." Waters v. Port Auth. of N.Y. and NJ, 158 F. Supp.2d 415, 422 (D.N.J. 2001) (citing Tseng, 525 U.S. at 161). Accordingly, once a court determines that the action is one for personal injury within the scope of the Warsaw Convention, it must dismiss all state law claims as ...


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