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HARPALANI v. AIR INDIA

September 30, 1985

USHA HARPALANI, JAIDEEP HARPALANI, A MINOR, BY HIS MOTHER AND NEXT FRIEND USHA HARPALANI; AND HARESH HARPALANI, A MINOR, BY HIS MOTHER AND NEXT FRIEND USHA HARPALANI, PLAINTIFFS,
v.
AIR INDIA, INC., DEFENDANT.



The opinion of the court was delivered by: Kocoras, District Judge:

MEMORANDUM OPINION

The Harpalanis seek to recover damages for the delay, including inconvenience and monetary loss such as the cost of meals and lodging in Bombay, telephone expenses and Usha Harpalani's lost wages. The complaint alleges violations of the Warsaw Convention, specified federal regulations, the Illinois Consumer Fraud and Deceptive Business Practices Act and breach of contract.

Air India has moved to dismiss on several grounds. Air India asserts that Counts I and II fail to state a claim under Article 19 of the Warsaw Convention and the federal regulations, respectively, and in the alternative that if Count I does state a cognizable claim under the Warsaw Convention that the remaining counts should be dismissed because the Convention provides an exclusive remedy. Air India also moves for dismissal on forum non conveniens grounds. Finally, Air India asks the court to strike the Harpalanis' jury demand, pursuant to 28 U.S.C. § 1330. The motion to dismiss will be granted in part and denied in part; the motion to strike the jury demand will be granted.

I.

The Warsaw Convention

A.  Does Count I state a cause of action under the Warsaw
    Convention?

The Warsaw Convention applies to all international transportation of persons, baggage, or goods performed by aircraft for hire. Warsaw Convention, done Oct. 12, 1929, art. 1, note following 49 U.S.C. § 1502. For purposes of the Convention, "international transportation" includes any transportation in which both the places of departure and destination are within the territory of signatories to the Convention. Id. Both the United States and India are signatories.

Article 19 of the Convention provides:

  The carrier shall be liable for damage occasioned
  by delay in the transportation by air of
  passengers, baggage, or goods.

Id. art. 19. While few reported cases discuss Article 19, those few suggest that Article 19 provides a cause of action in cases such as this one. See Mahaney v. Air France, 474 F. Supp. 532 (S.D.N.Y. 1979) (recovery under Article 19 of cost of ground transportation necessitated by "bumping" by airline barred by statute of limitations), Hill v. United Airlines, 550 F. Supp. 1048, 1054 (D.Kan. 1982).

  Air India urges this court to adopt the reasoning of the
court in Brunwasser v. Trans World Airlines, Inc., 541 F. Supp. 1338
 (W.D.Pa. 1982) and rule that the bumping does not fall
within the phrase "in the transportation by air." The facts of
Brunwasser are clearly distinguishable from those of the case
at hand, however. In Brunwasser, the plaintiff purchased in
February of 1981 non-stop round-trip tickets on TWA from
Pittsburgh to London in September of that year. When TWA later
cancelled the flight, the airlines contacted the plaintiff in
June and offered three alternatives to the previously scheduled
flight: (1) a non-stop flight on another day, (2) travel on the
date originally scheduled but with a stop in New York, or (3) a
refund of the purchase price of the tickets. The plaintiff,
finding none of the alternatives acceptable, filed suit,
claiming that cancellation of the flight violated Article 19 of
the Warsaw Convention. The court held that the cancellation did
not amount to a delay "in the transportation by air." The

court felt that the phrase should be construed narrowly and
adopted the definition found in Article 18 of the Convention,
which deals with airline liability for lost or damaged
baggage:
  The transportation by air within the meaning of
  [this article] shall comprise the period during
  which the baggage or goods are in the charge of
  the carrier, whether in an airport or board an
  aircraft . . .

Warsaw Convention, art. 18(2). This definition, however, applies only to Article 18 of the Convention; that the drafters did not provide a similar definition for Article 19 is significant. Furthermore, the Harpalanis, unlike the plaintiff in Brunwasser, were at the airport and in the charge of the carrier, as Air India controlled whether or not they left that night, at the time of the bumping.

The Brunwasser court also applied the three-prong test used by courts to determine whether a sufficient nexus exists between personal injury and air travel to state a claim under Article 17 of the Convention: the location of the accident, the activity in which the injured person was engaged, and the control by the defendant of the injured person at the time of the accident. Brunwasser, 541 F. Supp. at 1344. The court found that the test was not met because the acts complained of "occurred long before [the plaintiff] was to engage in any air travel with the defendant," and because by offering the alternatives, TWA never exercised any significant control over the plaintiff's actions. Id. at 1345. In the instant case, the Harpalanis were notified of the bumping at the airport just two hours ...


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