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Tenth Circuit Holds that Personal Injury Claims on Domestic Flights are not Necessarily Preempted by the Airline Deregulation Act

On August 22, 2022, the United States Court of Appeals for the Tenth Circuit held that personal injury claims sustained by passengers on domestic flights, and specifically ones arising from a passenger being struck by a beverage cart, are not preempted by the Airline Deregulation Act (“ADA”).[1]  As frequent readers of this blog will recall, the ADA expressly preempts state laws (and thus common law claims) relating to a “price, route, or service of an air carrier.”[2]

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U.S. District Court Denies Boeing Motion to Dismiss Fraud and Misrepresentation Claims Arising from the 737 MAX Grounding

U.S. District Court Denies Boeing Motion to Dismiss Fraud and Misrepresentation Claims Arising from the 737 MAX Grounding

On September 30, 2022, the U.S. District Court for the Western District of Washington issued an Order denying The Boeing Company’s (“Boeing”) motion to dismiss Polskie Linie Lotnicze LOT S.A.’s a/k/a LOT Polish Airlines (“LOT”) fraud and misrepresentation claims arising from the approximately two-year grounding of Boeing’s 737 MAX aircraft (the “Order”). The decision is significant because Boeing had previously succeeded in having fraud and misrepresentation claims brought by lessors and operators dismissed, notwithstanding the two fatal 737 MAX crashes, the grounding, Boeing’s Deferred Prosecution Agreement with the U.S. Department of Justice arising from Boeing’s misconduct during the Federal Aviation Administration’s certification of the MAX, the many other governmental investigations of Boeing’s misconduct, and Boeing’s settlement of shareholder, carrier, and lessor claims arising from the MAX grounding.

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U.S. District Court Holds that the Airline Deregulation Act Preempts Passenger Claim that Airline Negligently Failed to Prevent Cocaine Being Planted in his Suitcase

In an unusual action, the U.S. District Court for the Eastern District of New York recently held that the Airline Deregulation Act of 1978 (“ADA”) preempted and barred an action by a passenger on a Caribbean Airlines (“CAL”) flight, wherein the passenger claimed that CAL had negligently allowed someone to plant two kilograms of cocaine in his luggage.1  The passenger traveled from Guyana to New York on a CAL flight in 2018.  After passing through security, he turned over his suitcase to Guyanese officials and boarded the subject flight without incident.  When he arrived in New York, he retrieved his suitcase and went through U.S. Customs, where he was selected for inspection.  Customs found two kilograms of cocaine in his suitcase. 

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Texas State Court of Appeals Revives Southwest Airlines’ Pilots’ Union’s Action Against Boeing Arising from the Grounding of the 737 MAX, Ruling that the Railway Labor Act Does Not Preempt the Union’s State-Law Claims because Boeing is not an Air Carrier

The Southwest Airlines Pilots Association (“SWAPA”) sued Boeing in late-2019 in the 160th District Court in Dallas County, Texas, seeking damages arising from the world-wide grounding of 737 MAX aircraft.  Southwest Airlines flies a fleet consisting exclusively of Boeing 737 aircraft, had already taken delivery of many MAX aircraft before the grounding, and was expecting to take delivery of a significantly greater number of MAX aircraft during the two-year grounding.  The grounding reduced Southwest’s fleet and thus its pilots’ opportunities to earn income, and based on that reduced income, reduced the revenue of the union, to which pilots pay dues as a percentage of income.   

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U.S. District Court Reaffirms the Preemptive Effect of the Montreal Convention

Continuing with this space’s recent focus on cases analyzing the scope of the Montreal Convention, this blog entry discusses yet another recent Montreal Convention case that establishes the broad scope of the Convention’s preemptive effect.  As frequent readers of this blog will recall, the Montreal Convention exclusively governs lawsuits against air carriers for damage arising from air transportation, and aircraft embarkation and disembarkation among signatory nations.  That is, the Montreal Convention preempts claims for damages that either are not enumerated within the Convention or are based on laws other than the Convention, such as state laws.  Further, because the Montreal Convention is a treaty of the United States, defendants almost always remove such cases to federal court.

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Second Circuit Reaffirms the Preemptive Effect of the Montreal Convention

As frequent readers of this blog will recall, the Montreal Convention exclusively governs lawsuits against air carriers for damage arising from delay of or damage to cargo during international air transportation among signatory nations.  A recent decision by the United States Court of Appeals for the Second Circuit illustrates that litigants cannot use artful pleading to avoid application of the Montreal Convention.1

In New Fortune Inc. v. Apex & Aeroflot, plaintiff NFI purchased one million face masks from a Chinese company and hired defendant Apex, a freight forwarder, to transport the masks from China to the U.S.2  Apex was instructed to ship the masks directly from China to New York and complete delivery within two days.  Although half of the masks were shipped in the requested manner and timeframe, NFI alleged that the other half was not.  Instead of flying directly from China to New York, the second batch of masks was flown on another carrier’s flight (Aeroflot, a Russian carrier) from China to Moscow, where they remained at the airport for over twenty days before being flown to their final destination in New York.  NFI alleged that its buyer refused to accept late delivery of the second batch of masks, and further that some of the crates were damaged.

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Department of Justice Sues to Stop American Airlines and JetBlue Alliance

In September, the U.S. Department of Justice filed a lawsuit in federal court in Massachusetts seeking to stop the planned alliance between American Airlines and JetBlue. Six state attorneys general and the District of Columbia joined the lawsuit. The complaint contends that JetBlue is a “uniquely disruptive low-cost carrier” and that proposed alliance would undermine competition on routes to and from four major airports: Boston Logan International Airport (“Boston Logan”), John F. Kennedy International Airport (“JFK”), LaGuardia Airport (“LaGuardia”), and Newark Liberty International Airport (“Newark Liberty”).1

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U.S. District Court for the Eastern District of New York Clarifies Applicability of Montreal Convention to Delayed Transportation of Human Remains

In a two-part opinion, the United States District Court for the Eastern District of New York dismissed a lawsuit filed by the family of a deceased Pakistani-American whose remains were not loaded onto a scheduled flight to Pakistan, leading to an unplanned burial in the United States. 

The family members alleged various state law causes of action, including loss of sepulcher, negligence, gross negligence, negligence per se, negligent infliction of emotional distress, fraud, loss of services and breach of contract, against the air carrier, Pakistan International Airlines (“PIA”), its cargo handler Swissport, and the Port Authority of New York and New Jersey.  After pre-trial discovery concluded, the parties cross-moved for summary judgment.  Defendants argued that the human remains were “cargo” for purposes of the Montreal Convention, and that the failure to load such remains onto the scheduled flight constituted a delay under Article 19 of the Convention.  As frequent readers of this blog will recall, the Montreal Convention controls a party’s remedies for injuries arising from international travel between signatory nations (which include those at issue in this case), and therefore as a treaty of the United States, preempts all state law claims.

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U.S. District Dismisses Sexual Assault Claims against Airline and its Holding Company that Occurred on International Flight for Lack of Personal Jurisdiction and Preemption under the Montreal Convention

The U.S. District Court for the Central District of California recently dismissed a plaintiff’s claims against an airline and its holding company arising from an alleged sexual assault she suffered on an international flight from Los Angeles to Panama City for lack of personal jurisdiction over the holding company and because the claims against the airline were preempted by the Montreal Convention.1

According to the plaintiff’s complaint, she was sexually assaulted by a passenger sitting next to her almost immediately after she took her seat.  She requested a seat change, but the crew initially denied her request.  After the alleged assailant “completely mount[ed]” the plaintiff, she escaped her seat, woke up the flight crew, and requested again that her seat be moved.  This time she was accommodated, but moved to a seat still within visibility of the alleged assailant, who allegedly continued his behavior and terrorized the plaintiff.  The offending behavior continued after the flight landed, when the plaintiff was forced to wait near the alleged assaulter.

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U.S. District Court Holds that Choice of Law Provision in Carrier’s Contract of Carriage Applied to All Aspects of Plaintiff’s Personal Injury Claim Arising From a Rough Landing

The U.S. District Court for the Eastern District of Louisiana recently denied Delta Airlines’ motion to dismiss an action under Federal Rule of Civil Procedure 12(c), wherein it held Delta to the choice of law clause its own contract of carriage even though Delta argued that the law of the forum where the alleged injury to the plaintiff occurred applied.

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U.S. District Court Upholds Rule that Montreal Convention “Accident” Inquiry is Objective

The United States District Court for the District of Massachusets recently reaffirmed the rule that the inquiry into whether an “accident” occurred for Montreal Convention purposes is an objecive inquiry, not one subjective to the passenger claiming that an “accident” causing his or her injuries occurred. In Moore v. British Airways, PLC,1 Plaintiff was a passenger onboard a British Airways flight from Boston to London, as part of round-trip transportation.2 Upon arrival in London, the jetbridge intended for disembarkation was broken, which forced the passengers to disembark via a mobile staircase. According to the uncontradicted British Airways testimony submitted with its motion for summary judgment, the use of mobile staircases to disembark aircraft at London’s Heathrow Airport is a common occurrence. The Plaintiff successfully navigated nearly the entire staircase but fell off of the bottom step, which had a greater distance between it and the ground than the space between the preceeding steps. She claimed that she was not expecting this difference, or the use of a mobile staircase for disembarkation, which allegedly were the cause of her fall, and sued British Airways on account of her resulting injuries.

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U.S. District Court Holds that the Montreal Convention Does not Provide a Basis for Personal Jurisdiction

The U.S. District Court for the District of New Jersey recently held that although the Montreal Convention confers subject matter jurisdiction over a plaintiff’s suit arising from injuries sustained while disembarking a flight to and from destinations abroad, it does not confer personal jurisdiction over the defendant airline absent an injury arising from the carrier’s activities specifically directed at the state in which suit was brought.[1]

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D.C. Circuit Affirms Distirct Court Decision to Dismiss Malaysia Airlines Flight MH370 Claims on Forum Non-Conveniens Grounds

The U.S. Court of Appeals, District of Columbia Circuit recently affirmed a District Court’s decision to dismiss claims arising from the mysterious disappearance of Malaysia Airlines flight MH 370 on forum non conveniens grounds.[1]  The flight disappeared without any known cause over the Southern Indian Ocean on March 8, 2014.  An extensive search of over four years yielded no known cause of the tragedy.  All onboard are presumed dead.

Representatives of the passengers filed lawsuits in the United States asserting claims against Malaysia Airlines Systems Berhad (“MAS”)[2], the name of Malaysia’s national airline at the time of the flight, the airline’s insurers and Boeing, the aircraft manufacturer.  The District Court dismissed all claims on forum non conveniens grounds, and the Court of Appeals affirmed, finding that the District Court did not abuse its discretion. 

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Federal Court Dismisses Montreal Convention Claims to Germany on Forum Non-Conveniens Grounds

The U.S. District Court for the Northern District of Georgia recently dismissed to Germany a plaintiff’s Montreal Convention suit against Delta Airlines and KLM on grounds of forum non conveniens.1 The plaintiff in this action purchased a ticket for travel in Germany through Delta’s website. His roundtrip travel was to Atlanta, and then to Amsterdam and finally Munich, Germany. The flight from Atlanta to Amsterdam was operated by a joint venture of Delta on KLM. On that flight, a beverage cart hit plaintiff’s knee, causing him injury. He brought suit against Delta and KLM in the U.S. District Court for the Northern District of Georgia. Both Delta and KLM brought motions to dismiss arguing that the case should be heard in Germany rather than the U.S. on the grounds of forum non conveniens, which readers will recall is a doctrine that allows defendants to dismiss cases to alternative forums on grounds that the plaintiff’s chosen forum is too inconvenient given the location of the parties, the evidence and other factors set forth below.

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Eleventh Circuit Rejects Appeal of Woman Injured Because Her Seatbelt Was not Fastened

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a jury’s decision that a passenger was 99 percent liable for her injuries arising from severe turbulence because she was not wearing her seatbelt despite instructions to do so.[1]

Plaintiff Fanny Quevedo, an experienced traveler, was travelling from Miami to Milan with a layover in Madrid.  The segment from Madrid to Milan, an Iberia Airlines flight, was intended to land at Milan-Malpensa airport.  Prior to takeoff, the Iberia flight crew provided the passengers with the regular safety instructions, including that seatbelts must remain fastened at all times when the seatbelt light is on, and that Iberia recommended that seatbelts remained fastened “at all times.”  The fastened seatbelt recommendation is reflected in Iberia’s policies: when the seatbelt light is on passengers are reminded to keep their seatbelts fastened every fifteen minutes, and if a flight crew member cannot see a passenger’s seatbelt when securing the cabin, they are required to move clothing and wake up sleeping passengers to ensure that seatbelts are fastened.

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Federal Court Dismisses State Law Claims Alleging Conspiracy Between Boeing and Southwest

Of the many current lawsuits against Boeing arising from the 737 MAX crisis, perhaps one of the more interesting ones was brought by Southwest Airlines passengers against Southwest and Boeing alleging that they were overcharged at the moment that they purchased tickets for travel aboard Southwest’s 737 MAX aircraft.[1]  These passengers, who brought putative class-action claims, alleged that the 737 MAX was fatally defective, that they never would have purchased their tickets on Southwest’s 737 MAX aircraft had they known of the defects, and that Boeing’s and Southwest’s misrepresentations and omissions concerning the safety of the 737 MAX enabled Southwest to overcharge for tickets.  Plaintiffs brought causes of action against both defendants for, broadly speaking: (1) violations of the RICO Act; (2) concealment and misrepresentation; (3) unjust enrichment; and (4) negligence.  Other than the RICO Act claims, Plaintiffs’ claims all were state law claims.

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Editor-in-Chief Commentary

Welcome to the first Editor-in-Chief commentary under the ATLP’s new blog format.  As you probably know or have deduced, ATLP has transitioned Association Highlights from a bi-monthly newsletter format publishing six issues per year to a blog format endeavoring to publish weekly.  Under this new format, you will continue to receive informative transportation content delivered via email.  You can access the Association Highlights blog posts at the ATLP website,  We hope that you find this new format to make it easier for you to read all of the high-quality content produced by the ATLP Highlights editors.

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No “Acting Under” Federal Question Jurisdiction for Self-Certifying Aircraft Manufacturer

On September 20, 2019, the Ninth Circuit addressed federal question jurisdiction under 28 U.S.C. § 1442(a)(1) as applied to an aircraft manufacturer that self-certified a helicopter involved in a fatal crash. The issue is of particular interest now given the ongoing Boeing 737 MAX controversy that also was self-certified.1

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Airline Wins Motion to Dismiss Arising From Flights Canceled Because Airlines Ran Out of De-icer Fluid

Southwest Airlines ran out of de-icer fluid at Midway Airport in Chicago on February 11, 2018, and thus cancelled a number of flights to and from Midway. Plaintiff Brian Hughes was among those whose flights were cancelled. Hughes then brought class action claims against Southwest for breach of contract and negligence for Southwest’s failure to maintain a sufficient amount of de-icer fluid on that date, as well as several prior dates in December 2017 and January 2018. Southwest moved under Rule 12(b)(6) to dismiss all claims on the basis that both the Airline Deregulation Act (ADA), and the Federal Aviation Act (FAA) preempted plaintiff’s claims, and that he failed to state a claim for breach of contract. The court granted Southwest’s motion.

The court first set forth the relevant provisions of Southwest’s contract of carriage, which governed Hughes’ flight, and provided the applicable remedies for cancellation. Those remedies were limited to: (1) transport of the passenger on the next available Southwest flight on which space is available; or (2) a refund for the unused portion of the passenger’s fare. The contract of carriage also contained a limitation of liability excluding Southwest’s liability for cancellation or delay for reasons of aviation safety or due to force majure events.

Accordingly, Southwest argued that plaintiff did not and could not cite to the specific portions of the contract of carriage that it violated, and that the contract of carriage permitted Southwest to cancel the flights at issue. The court first weighed whether the federal pleading standard requires that Hughes specifically identify the provisions of the contract that were breached, but ultimately determined that it did not matter whether Hughes had or could do so because Hughes failed to provide sufficient detail in his complaint to put Southwest on notice of the duty it breached. Specifically, the court held that Hughes failed to allege that he asked Southwest for transport on the next flight with available space, or for a refund. Rather, Hughes sought reimbursement for inconvenience and expenses caused by the delay, which the contract of carriage precluded. Thus, the contract of carriage precluded his claim as made.

The court then analyzed Southwest’s ADA preemption argument. Frequent readers will recall that the ADA preempts all state law relating to an air carrier’s prices, routes and services. But as the court noted, the ADA does not preempt lawsuits seeking to recover for an airline’s breach of its own self-imposed undertakings, such as those in its contract of carriage. Thus, the ADA preempts plaintiff’s negligence claim, which did not relate to Southwest’s contract of carriage.

The court then declined to analyze whether the ADA preempts plaintiff’s contract-based claims. It noted that plaintiff’s pleading failure prevented the court from determining whether the ADA preempted his breach of contract claims or arose from Southwest’s voluntarily duties under its contract of carriage. For the same reason, the court did not analyze FAA preemption; in fact, the court did not even mention FAA preemption apart from its note that Southwest argued the FAA preempted plaintiff’s claims.

Although Southwest asked the court to dismiss plaintiff’s contract claims with prejudice, it declined to do so, holding that plaintiff’s pleading failure prevented a proper assessment of plaintiff’s claim and Southwest’s defense. The court noted plaintiff could amend his complaint to allow the court to undertake that analysis. Thus, ironically, plaintiff’s pleadings failure allowed his claim potentially to proceed.


  • Specifically, 49 U.S.C. § 41713(b)(1).
  • 49 U.S.C. § 40101 et seq.
  • Hughes v. Southwest Airlines, Co., No. 1:18-cv-05315, Dkt. No. 26 (N.D. Ill. Mar. 26, 2019).
  • The court also dismissed with prejudice the plaintiff’s negligence claim on the grounds that the contract of carriage is governed by Texas law which barred plaintiff’s negligence claim.