Air France is right on the law in this recent Fifth Circuit decision (written by Judge Fortunato P. Benavides), but woefully wrong on the public relations front. In not settling the case, Air France has given an enterprising advertising firm for one of Air France’s competitors the basis for an effective “we’d never do this to you” advertising campaign against the airline.
Here’s what happened. Air France charged Edo Mbaba a $520 excess baggage fee for the four extra bags he took on his trip from Houston to Lagos. That was no problem, but when Mbaba flew through Paris, the flight was delayed and he missed his scheduled connection. As a result, he had to spend the night in the terminal and reclaim his baggage.
The next day, when Mbaba went to check his bags with Air France again for his flight to Lagos, Air France inexplicably advised him that he would have to pay another $4,000 in excess baggage fees. Thinking much as I would if confronted with such a demand, Mbaba requested that Air France simply return his luggage to Houston, which prompted the Air France personnel to inform Mbaba that if he didn’t quit griping and pay the four grand fee, they would take his luggage outside and barbecue it. Mbaba paid the fee, but then sued Air France in Texas for breach of contract and other state law claims.
Alas, the U.S. District Court and the Fifth Circuit concluded that Mbabaís claims are preempted by the Warsaw Convention. Nevertheless, here’s hoping that some of Air France’s competitors pick up on the decision and use it in the advertising wars so that the few bucks that Air France saved by stiffing Mbaba becomes an expensive lesson on how not to treat customers. Hat tip to Robert Loblaw for the link to the Fifth Circuit decision.
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I am the attorney who represented George Mbaba in Mbaba v. Air France from inception. We will be filing a petition for writ of certiori to the U.S. Supreme Court within the next 90 days.
Although we agree that Air France’s handling of this small case was as commercially foolish as it was arrogant, we also strongly believe that the Fifth Circuit was not “right on the law.” In fact, in holding that the Warsaw Convention preempts all claims not specifically allowed under the Convention, the Fifth Circuit stands alone and in conflict with the First, Third, Ninth, and Eleventh Circuit courts of appeals, as well as many lower federal courts and state courts of appeals. Here are case citations and six sound bites from the several appellate courts who agree with our position in this case:
(i) Floyd v. Eastern Airlines, 872 F.2d 1462, 1481 (11th Cir. 1989), revíd on other grounds, 499 U.S. 530 (1991).
ìCauses of action based on state law can go forward when the Warsaw Convention does not apply. The Convention does not prohibit state or federal causes of action based on situations which the Convention was not intended to governÖ. In those aspects of the passenger-carrier relationship which the Convention does not address, it does not apply at all, and local law must govern.î
(ii) Abramson v. Japan Airlines Co., Ltd., 739 F.2d 130, 134 (3d. Cir. 1984).
When the Warsaw Convention is inapplicable to the claim raised, ìit does not serve as a bar to alternate theories of recovery.”
(iii) In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1307, n.8 (9th Cir. 1982).
ìThis is clearly not a case in which Congress [by ratifying the Warsaw Convention] intended to preempt all state legislation in the field, since the Convention specifically requires the application of local law to some issuesÖ.î (at p. 1311) The Warsaw Convention ìhas never been read to limit plaintiffs to a cause of action arising thereunder, but rather to limit the recovery in suits for injury.î
(iv) Martinez Hernandez v. Air France, 545 F.2d 279, 284 (1st Cir. 1976) cert. denied, 430 U.S. 950 (1977).
A passenger injured after disembarkation (when Warsaw Convention Article 17 is inapplicable), is left ìto remedies of local law.î
(v) Husserl v. Swiss Air Transport Co., 351 F. Supp. 702, 706 (S.D.N.Y. 1972), affíd, 485 F.2d 1240 (2nd Cir.1973), overruled on other grounds, Eastern Airlines v. Floyd, 499 U.S. 530, 534 n.3 (1991) (holding that Warsaw Convention does not allow recovery for ìpurely mental injuriesî).
ì[T]he [Warsaw] Convention does not exclusively regulate the relationship between passenger and carrier on an international flightÖ. [I]f the Convention ëapplies,í it applies to limitónot eliminateóliability; if it does not apply, it leaves liability to be established according to traditional common law rules.î
(vi) Imtiaz v. Emery Air Freight, Inc., 728 S.W.2d 897 (Tex. App.óHouston [1st Dist.] 1987, no writ).
ì[Plaintiffsí] allegations regarding Emery Airfreightís misrepresentations were sufficient to state a prima facie cause of action for damages under the Texas Deceptive Trade Practices Act, TEX. BUS. & COM. CODE ANN. secs. 17.41-17.63 (Vernon Supp. 1987), and that claim is not governed by the Warsaw Convention.î
Jeffrey L. Dorrell
Houston
Attorney for George & Patience Mbaba