Booker v. BWIA West Indies Airways Limited, 06-CV-2146 (RER) (E.D.N.Y. May. 8, 2007)
United States District Court, E.D. New York
Facts
As the plane was preparing to depart, plaintiff was required to surrender her two pieces of carry — on baggage against her will. Id. ¶ 6. Plaintiff was given two baggage claim checks for her baggage. Id. ¶ 7.
At no time did plaintiff remove any items from her baggage nor did she disembark the plane. Def’s 56.1 Stmt ¶ 8. When plaintiff arrived in Guyana her two pieces of baggage were missing. Id. ¶ 9. Plaintiff filed a Baggage Claim Report and listed the contents as cash, jewelry and Christmas cards. Id. ¶ 10, 11. At her deposition, plaintiff testified that the baggage also contained medication. Id. ¶ 15. Approximately four days after her arrival, plaintiff’s baggage arrived in Guyana. Id. ¶ 14.
When she received her baggage she discovered that items were missing: $5,000 in cash, jewelry worth $6,400, and $390 in Christmas cards, for a total of $11,790. Id. ¶ 16. During her deposition, plaintiff testified that she suffered “great emotional stress” as a result of the baggage being delayed.
On April 17, 2006, plaintiff filed the complaint in Supreme Court of New York, Kings County alleging intentional infliction of emotional distress, negligent infliction of emotional distress, deceptive business practice, conversion/negligence and seeking damages for her stolen and damaged baggage.
Issue(s)
No issues drafted yet for this case.Discussion
The Montreal Convention defines three situations in which a carrier is liable: (1) death or bodily injury of passengers; (2) damage to baggage; and (3) delay of passengers, baggage and cargo. Plaintiff alleges that she suffered emotional distress as a result of the seizure of her baggage, the delay in receiving her baggage and the discovery of the loss of the contents of her baggage. Plaintiff asserts causes of action for intentional and negligent infliction of emotional distress. Pursuant to Article 17(1), a carrier is liable in case of death or bodily injury of a passenger caused by an accident either on board the aircraft, or in the course of any of the operations of embarking or disembarking. Emotional injuries, however, are not recoverable under the Montreal Convention unless they were caused by physical injuries. See Erlich, 360 F.3d at 369-400 (a carrier is liable for mental injuries only to the extent that they were caused by bodily injuries); Eastern Airlines Inc. v. Floyd, 499 U.S. 530, 552 (1991) (carriers are not liable for purely mental injuries); see also El Al Israel, 525 U.S. at 161 (recovery for personal injury claims “if not allowed under the [Warsaw] Convention, is not available at all”.
With regard to Article 22(5):
Defendant does not contest that it may be held liable for the damage to plaintiff’s baggage. Rather, defendant argues that its liability, if any, is limited by Article 22(2). Pursuant to Article 22(2), a carrier is only liable for 1,000 Special Drawing Rights, unless the passenger made a special declaration of interest at the time the baggage was handed over to the carrier. Article 22(5) provides that this provision does not apply if the “damage resulted from an act or omission of a servant or agent . . . done with intent to cause damage or recklessly and with knowledge that damage will probably result . . . provided that such servant or agent was acting within the scope of its employment.”
The Court is not aware of any case law analyzing Article 22(5) of the Montreal Convention; however, courts have previously relied on cases interpreting a provision of the Warsaw Convention where the equivalent provision in the Montreal Convention was substantively the same. See Paradis, 348 F. Supp. 2d at 111; see also Kalantar v. Lufthansa German Airlines, 402 F. Supp.2d. 130, 140 n. 10 (D.D.C. 2005). Here, plaintiff alleges that the contents of her baggage were stolen. New York courts interpreting the Warsaw Convention have held that theft by an employee is outside the scope of employment and thus, do not remove the limitation on a carrier’s liability. See Brink’s Ltd. v. South African Airways, 94 Civ. 1902, 1995 WL 225602, at * (S.D.N.Y. Apr. 17, 1995) (collecting cases), rev’d on other grounds, 93 F.3d 1022 (1996). Therefore, defendant’s liability is limited to 1,000 Special Drawing Rights.
Useful for
Mental anguish damages not recoverable for delay
