Best v. BWIA West Indies Airways Ltd., 581 F. Supp. 2d 359 (E.D.N.Y 2008)
Facts
On August 6, 2004, Mrs. Best purchased round trip tickets for air transportation departing the next day from John F. Kennedy Airport in New York to Grenada, via Port of Spain, Trinidad. Although Mrs. Best booked her trip with BWIA, she was aware that her itinerary placed her on a BWIA flight from JFK to Port of Spain, and then on a flight with another carrier, LIAT, from Port of Spain to Grenada.
On August 7, 2004, Mrs. Best traveled on her BWIA flight to Port of Spain without incident and arrived at approximately 12:00 P.M. After what was apparently a planned layover, Mrs. Best attempted to check in for her 8:00 P.M. flight to Grenada, only to discover that it had been canceled. She was then placed on a subsequent LIAT flight, which was scheduled to depart for Grenada at 8:30 P.M. After rechecking her baggage, Mrs. Best boarded the flight, escorted by a LIAT employee, and sat in the seat LIAT had assigned her. Shortly thereafter, and after buckling her seat belt, an unidentified man came aboard and told Mrs. Best that she would need to exit the aircraft and that “they made a mistake.” Mrs. Best apparently made further inquiry, and rather than provide her an answer, the man exited the aircraft without removing Mrs. Best.
A short time later, another man boarded the aircraft and insisted that Mrs. Best disembark immediately. BWIA claims that Mrs. Best now knows this man to have been Customs Officer Clarence Clark, but the Bests claim that, even today, Mrs. Best is unsure of Mr. Clark’s official title. In any event, Mrs. Best did not disembark, saying she was tired, hungry, and needed a shower. After her refusal to comply, Officer Clark grabbed Mrs. Best and forcibly removed her from her seat. Mrs. Best was then pulled off the aircraft, down the portable staircase, and onto the tarmac, where she lay crying. Approximately six people surrounded her there, at least one of whom was a LIAT employee, Anita Telesford. Apparently, Ms. Telesford assisted Mrs. Best off the tarmac and back onto the aircraft, and she continued on her way. Neither party has offered a reason as to why Officer Clark removed Mrs. Best from the aircraft.
Issue(s)
Plaintiffs argue that BWIA is liable under Article 39 of the Montreal Convention and principles of common law agency for injuries suffered on the LIAT leg of the flight. Defendant contends that BWIA is not liable under that provision.
Discussion
In circumstances where carriage is performed by “various successive carriers,” the Montreal Convention provides, as did the Warsaw Convention, that liability is limited to the carrier “which performed the carriage during which the accident … occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey.” Montreal Convention, Art. 36 (“Successive Carriage”). It is this provision that applies to the flights taken by Mrs. Best.
Based on the uncontested facts, the relationship between BWIA and LIAT is that of successive carriers. It is undisputed that BWIA sold Mrs. Best a ticket for both her travel on BWIA to Port of Spain, and her flight on LIAT from Port of Spain to Grenada. (Def.’s Ex. E, R. 56.1 Statement.) Mrs. Best received an interline release tag for her baggage to transfer the bags to the care of LIAT for the leg other trip from Port of Spain to Grenada. (Pl.’s Ex. 1, Affirmation in Opp’n.) The Bests do not allege that BWIA expressly assumed liability for the LIAT portion of the transportation.
Plaintiffs argue that Article 36, governing successive carriers, does not apply because the Convention utilizes the word “various” in reference to successive carriers and this case involves only two airlines. Plaintiffs cite no support for this strained reading, and courts have found successive carrier relationships to exist among only two airlines. See, e.g., Shirobokova, 376 F.Supp.2d at 442 (noting that the predecessor successive carrier provisions under the Warsaw Convention applied “[w]hen a journey involves segments on more than one carrier”).
Plaintiffs’ reliance on Article 39 is misplaced. Chapter 5 of the Montreal Convention, which includes Articles 39-41, extended liability to what it characterizes as “contracting” carriers for harms incurred during carriage by “actual” carriers, but excepted from that definition successive carriers.
Useful for
Codeshare is not successive carriage
Interline is not Article 39 MC99
Interline is successive carriage
No liability of successive carrier for death or injury on other successive carrier
