COLLEEN McMAHON, District Judge
The well-pleaded facts of the complaint allege the following:
Plaintiff purchased two round-trip tickets for travel to Europe from New York City from defendant. Defendant was paid $2,515 per ticket. Plaintiff flew from New York to Rome, then made his way to Paris, from which he was scheduled to fly home on Sunday, October 28, 2007, on a flight operated by Air France, with which Delta had a partnership arrangement.
As air travelers are aware, flights on foreign carriers sometimes have two flight numbers: one for the foreign carrier and one for a domestic U.S. carrier who has some sort of "partnership" arrangement with the foreign carrier. Thus, Air France Flight 50 might also be Delta Flight 378.
On October 28, a strike grounded all Air France flights, including plaintiff's flight booked through Delta, "until further notice."
Delta asked its passengers to go to the airport to make alternate travel arrangements. Plaintiff did so, arriving at a chaotic Charles de Gaulle airport, where he managed to book another Delta flight (which was, of course, really an Air France flight) back to New York. Shortly thereafter, the Delta counter (which was staffed by Air France employees) closed due to the strike. The second plane, like the first, was grounded.
Plaintiff alleges that Delta promised to reimburse its passengers for the cancelled flight if they used another airline. (¶ 12.) In his brief opposing the motion, plaintiff adds factual embellishments that do not appear in his pleading, asserting that Delta employees "handed out flyers advising Plaintiff, and others similarly situated, that they would reimburse their customer in the event they rebooked a flight on another air carrier." (Opposing Br. at 4.) Plaintiff alleges that he was induced by Delta's promise of reimbursement to rebook on another carrier, and that he was able to fly back to the United States on American Airlines. However, given the number of stranded travelers, he could not get a seat until Wednesday, October 31 — three days after he was scheduled to return. When plaintiff returned home, the strike was not yet over; according to the complaint, it lasted for four days, stranding thousands of Delta passengers in France. (¶¶ 13-14.)
Plaintiff alleges that Delta reneged on its promise to reimburse its passengers if they rebooked on other carriers, and refused to refund the cost of plaintiff's unused Delta (Air France) ticket from Paris to New York. He seeks that refund, together with damages to compensate him for the cost of spending three extra days in Paris, relying on a variety of theories — violation of the New York General Business Law, promissory estoppel and unjust enrichment. Plaintiff does not assert the obvious claim for breach of contract.
Plaintiff complains of, but does not seek damages for, Delta's loss of his traveling companion's luggage on the flight from New York to Rome. Plaintiff's traveling companion had to buy new formal clothing in order to attend a wedding, which was the reason for the trip to Europe. Why this unnecessary detail appears in the pleading is a mystery.
Plaintiff seeks to represent a class of persons who were unable to fly home from Paris on Delta flights during the same Air France strike and who instead flew home on other airlines, but did not receive refunds for their unused — and unusable — tickets.
Defendant moves to dismiss the complaint on the ground that the state law causes of action alleged are preempted by the Montreal Convention (the "Convention"). That international air Convention "applies to all international carriage of persons, baggae or cargo performed by aircraft for reward." Convention, Art. 1(1). Due to the preemptive nature of the Convention, claims that fall within its parameters cannot be the subject of lawsuits pursuing other theories of recovery, state or federal. There is no dispute that the plaintiff's cancelled flight, which was to have originated in France and ended in the United States (both parties to the Convention) falls within the definition of "international carriage" in the Convention.
Defendant contends that plaintiff's claim falls within the preemptive scope of Article 19 of the Convention, which makes the carrier liable for "damages occasioned by delay in the carriage by air of passengers, baggage or cargo." Defendant characterizes its failure to transport the plaintiff from Paris to New York due to the Air France strike as a "delay." I, like plaintiff, disagree. Plaintiff is seeking damages resulting from Delta's refusal to provide him with any flight home after having taken his money for a ticket — in short, for failure to perform its obligation to provide carriage in exchange for money it had received. That is not delay — it is non-performance. Claims for non-performance are not preempted by Article 19 of the Convention.
Claims for the delayed return of lost baggage following a completed flight are preempted.
As one of my colleagues in the Eastern District has recently observed, the cases dealing with Montreal Convention preemption present, for the most part, "circumstances which militated in favor of a finding of delay [as opposed to nonperformance]." In re Nigeria Charter Flights Contract Litig., 520 F. Supp. 2d 447, 453 (E.D.N.Y. 2007). However, in recent years a number of courts have concluded that where the facts pleaded in the complaint add up to non-performance, rather than simply delay, the Convention does not preempt other claims. In Nigeria Charter Flights, the court identified the circumstances that would favor a finding of delay as opposed to non-performance: either the defendant airline ultimately provided plaintiff with transportation, or the plaintiff secured alternative transportation without waiting to find out whether the defendant airlines would transport him, or the plaintiff refused the airline's offer of a later flight. Presumably, then, where the defendant airline did not ultimately transport the plaintiff, or where the plaintiff secured alternative transportation only after learning that he would not be flown by his original carrier, and where the plaintiff did not refuse to fly on a later flight operated by his carrier, a finding that the claim was for non-performance rather than delay would be warranted.
That is the circumstance we have here. The plaintiff pleads that he attempted to obtain alternative carriage on Delta — indeed, he contends that he rebooked on another Delta flight, which was also cancelled — and that he was ultimately not provided with any transportation by Delta, although although he remained in Paris for three days beyond his scheduled date of departure. Significantly, Delta could not have flown plaintiff out of Paris on the day he ultimately left, because the strike was ongoing, grounding all of the carrier's flights.
Additionally, once plaintiff amends his complaint to conform to his memorandum of law (which I am granting him leave to do), the pleading (as opposed to the brief) will allege that plaintiff was handed a flier that affirmatively advised him to find carriage on another carrier, and that promised to refund his money if he did so. That would, if proved, constitute an admission by defendant that it did not perform its part of the bargain.
Of course, plaintiff's actual claim is for breach of contract. He has cleverly attempted to plead around that claim — I am guessing because a breach of contract claim does not admit of punitive damages. But Delta has predicated its motion to dismiss on preemption; it has not argued any other ground for relief. Since the preemption argument does not work on the facts pleaded, the motion that was made is denied.
It is obvious that the real dispute in this case is between Delta and Air France over which airline should reimburse plaintiff for the price of his unused ticket. I suspect it has already cost Delta a pretty penny to litigate this case, rather than bite the bullet and cough up the $1050 or so that represents the value of the flight not taken. And it has cost the taxpayers a pretty penny as well . . . pennies that could be better spent on some other necessary endeavor.
The motion to dismiss is denied. Plaintiff must serve an amended complaint within ten days of the date of this order.