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.

Since the family brought only state law claims, the defendants argued the case should be dismissed.  The family members cross-moved to dismiss defendants’ affirmative defense of preemption, arguing that human remains cannot be “cargo” under the Montreal Convention, and that, even if the remains were cargo, the failure to load (and thereby prevent a planned immediate burial in Pakistan), constituted nonperformance of contract, which would not be governed by Montreal Convention Article 19.

In September 2020, the District Court issued the first part of its decision, holding that the casket containing the decedent’s remains constituted “cargo” under the Montreal Convention.1  The court relied in part on precedents of the Third and Ninth Circuits, which have held that human remains are “goods” under the Montreal Convention’s predecessor, the Warsaw Convention.  Readers will recall that the cases interpreting the Warsaw Convention are frequently used to guide court decisions under the Montreal Convention because the Montreal Convention was intended to amend and clarify certain provisions of the Warsaw Convention. 

Article 1(1) of the Warsaw Convention states:

This Convention applies to all international carriage of persons, luggage or goods performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.2

As the Ninth Circuit observed, this language was intended to extend the Warsaw Convention’s liability regime to “all cases in which an aircraft is hired to transport someone or something on an international route.”3  The District Court in this case found that the Montreal Convention’s replacement of the term “goods” in the Warsaw Convention with the even broader term “cargo” in Article 19 of the Montreal Convention evinces the drafters’ intent to expand the scope of the Warsaw Convention’s application, not to restrict it.4  The court thus rejected the family members’ argument that statements by PIA’s employees that the airline does not treat human remains as “ordinary cargo” constituted a modification or waiver of the Montreal Convention’s applicability.

The District Court then conducted an evidentiary hearing on the issue whether the failure to load the human remains onto the flight for transport was governed by the Montreal Convention or constituted nonperformance of contract.  After the evidentiary hearing, the court issued a second opinion holding that the Montreal Convention applied, and thus dismissed plaintiffs’ action.5  Citing testimony of PIA employees, the court found that after initially failing to transport the remains on its own flight, PIA was prepared to make arrangements to transport them immediately on another carrier, but that the family and its funeral services agent never requested that it do so.  Indeed, after the remains did not arrive in Pakistan as scheduled, the family members had decided to hold the burial in the U.S., and returned on a flight the next morning, never informing PIA of their decision.  The family did not provide any evidence of a contractual undertaking by the airline to deliver the remains at a specific time. 

The court also analogized this case to Paradis v. Ghana Airways Ltd.,6 wherein a passenger, faced with an indefinite delay of his flight, decided to obtain “substitute travel” by purchasing a ticket with another carrier.  In both instances, the passenger’s decision to make alternative arrangements, rather than give the carrier a chance to perform the transportation, does not convert a Montreal Convention delay into contractual nonperformance.

Having determined that the family’s claims arose from a delay to which Article 19 of the Montreal Convention applies, the District Court found that plaintiffs’ state law claims were preempted, and accordingly, dismissed the complaint. 

1 Badar v. Swissport USA, Inc., 492 F. Supp. 3d 54, 56 (E.D.N.Y. 2020).

2 Warsaw Convention, art. 1(1).

3 Johnson v. American Airlines, Inc., 834 F.2d 721, 723 (9th Cir. 1987).

4 Article 1(1) of the Montreal Convention provides: “This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.”

5 Badar v. Swissport USA, Inc., No. 18CV06390DLIRER, 2021 WL 2382444, at *1 (E.D.N.Y. June 10, 2021).

6 348 F. Supp.2d 106, 114 (S.D.N.Y. 2004), aff’d, 194 F. App’x 5 (2d Cir. 2006) (summary order).

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