King v. American Airlines, Inc., 146 F. Supp. 2d 159 (NDNY 2001)


On April 25, 1997, the Kings purchased two round-trip tickets for a flight from New York City to Freeport, Grand Bahamas. The plaintiffs contracted with the defendants for transportation on American Airlines Flight 1819, departing from John F. Kennedy International Airport on July 26, 1997. The flight was scheduled to arrive at Miami International Airport at 3:08 p.m., at which time the plaintiffs were to transfer to American Airlines Flight 5777, operated by Flagship Airlines. Flight 5777 was scheduled to leave for Freeport at 4:10 p.m. that same afternoon.

The plaintiffs traveled to Miami as planned, but were informed upon arrival that their flight to Freeport was overbooked. The Kings refused an offer of monetary compensation to give up their seats. Nonetheless, after the Kings had been permitted to board the vehicle that was to transport the passengers from the terminal to the aircraft, agents of the defendants confiscated their boarding passes and informed the Kings that they were being “bumped” from the flight involuntarily. The Kings were the only African Americans with confirmed reservations who had not relinquished their seats voluntarily. Moreover, all the white passengers, including those who did not have confirmed reservations, were allowed to board Flight 5777.

The Kings commenced the present action on July 24, 2000, alleging that they had been racially discriminated against in violation of 42 U.S.C. § 1981, the Federal Aviation Act (“FAA”), 49 U.S.C. § 41310(a), and various other state and federal laws. The district court concluded that the Kings’ suit, grounded upon an act of discriminatory bumping, fell within the scope of Article 19 of the Warsaw Convention. King v. Am. Airlines, Inc., 146 F.Supp.2d 159, 162-63 (N.D.N.Y. 2001). As the Kings had not brought this action within the Convention’s limitations period, the court dismissed the claim.


The Warsaw Convention imposes a two-year statute of limitations. The Kings do not dispute that, should the Warsaw Convention’s statute of limitations apply, their suit would be untimely. Thus, the sole question confronting us is whether the Kings’ action is preempted by the Warsaw Convention.


The aim of the Warsaw Convention is to provide a single rule of carrier liability for all injuries suffered in the course of the international carriage of passengers and baggage. As Tseng makes clear, the scope of the Convention is not dependent on the legal theory pled nor on the nature of the harm suffered. See Tseng, 525 U.S. at 171, 119 S.Ct. 662 (rejecting a construction of the Convention that would look to the type of harm suffered, because it would “encourage artful pleading by plaintiffs seeking to opt out of the Convention’s liability scheme when local law promised recovery in excess of that prescribed by the treaty”); Cruz v. Am. Airlines, 193 F.3d 526, 531 (D.C. Cir. 1999) (determining that fraud claim was preempted by Article 18, because the events that gave rise to the action were “so closely related to the loss of [plaintiffs’] luggage . . . as to be, in a sense, indistinguishable from it”).

Notably, every court that has addressed the issue of whether discrimination claims are preempted by the Warsaw Convention post- Tseng has reached a similar conclusion. See Waters v. Port Auth., 158 F.Supp.2d 415, 429 (D.N.J. 2001) (“Although [the] cause of action is grounded in discrimination statutes, the thrust of his claim is one of personal injury. Undoubtedly, this falls within the scope of the Convention and the goal of providing a uniform scheme of liability.”); Turturro v. Continental Airlines, 128 F.Supp.2d 170, 180-81 (S.D.N.Y. 2001) (dismissing discrimination claim brought pursuant to the Air Carrier Access Act (“ACAA”), 49 U.S.C. § 41705 et seq., insofar as it was founded on actions that took place on board the aircraft); Brandt v. Am. Airlines, No. C 98-2089, 2000 WL 288393, at *4 (N.D.Cal. Mar. 13, 2000) (holding that ACAA claim was preempted by Article 17 when the conduct complained of occurred on board the aircraft). Although plaintiffs cite to pre- Tseng jurisprudence in which it was determined that discriminatory bumping claims did not fall within the scope of the Convention, we find those cases inapposite. See Wolgel v. Mexicana Airlines, 821 F.2d 442, 444-45 (7th Cir. 1987) (ruling that claim for discriminatory bumping is not preempted by Article 19 when trip was never completed, because the damages sought by plaintiffs did not stem from “delay” in air travel, but from the act of bumping); Mahaney v. Air France, 474 F.Supp. 532, 534-35 (S.D.N.Y. 1979). In those cases, there was no allegation that the discriminatory bumping occurred during the course of embarkation. Thus, those courts did not address the question of whether discrimination actions could be preempted by Article 17. We do not reach the separate issue of whether, after Tseng, such discriminatory bumping claims would also fall within the substantive scope of Article 19.

Plaintiffs raise the specter that our decision will open the doors to blatant discrimination aboard international flights, invoking images of airline passengers segregated according to race and without legal recourse. They suggest that, despite Article 24’s plain mandate that the Warsaw Convention preempts “any cause of action, however founded,” we should nonetheless carve out an exception for civil rights actions as a matter of policy. This we decline to do. “[I]t is our responsibility to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties.” Saks, 470 U.S. at 399, 105 S.Ct. 1338. It is not for the courts to rewrite the terms of a treaty between sovereign nations. Cf. Turturro, 128 F.Supp.2d at 181 (“[T]he Convention massively curtails damage awards for victims of horrible acts [of] terrorism; the fact that the Convention also abridges recovery for . . . discrimination should not surprise anyone.”).

Moreover, while private suits are an important vehicle for enforcing the anti-discrimination laws, they are hardly the only means of preventing discrimination on board aircraft. Federal law provides other remedies. Responsibility for oversight of the airline industry has been entrusted to the Secretary of Transportation. The Kings could, therefore, have filed a complaint with the Secretary. 49 U.S.C. § 46101. The FAA prohibits air carriers, including foreign air carriers, from subjecting a person to “unreasonable discrimination.” Id. § 41310(a). The Secretary has the authority to address violations of FAA provisions, including the power to file civil actions to enforce federal law. Id. § 46106. It does not follow from the preemption of the Kings’ private cause of action that air carriers will have free rein to discriminate against passengers during the course of an international flight.

Useful for

No remedy when none available under the Convention

Treaty provisions considered

No treaty provisions considered.

Legislation considered

None identified.

Key subjects or concepts