492 F.Supp.3d 54
E.D.N.Y2020Background
- Decedent Nauman Badar died in New York on October 25, 2017; Muslim Funeral Services (MFS) arranged international transport of his remains via Pakistan International Airlines (PIA) on Flight 712, with Swissport as ground handler.
- The remains (and another set) were not loaded, left on the tarmac without climate control, later located at JFK, returned to MFS, and ultimately buried in Maryland on November 1, 2017; PIA’s Flight 712 was its last U.S. service.
- Plaintiffs (family members) sued PIA and Swissport in New York state court asserting state-law claims (loss of sepulcher, negligence, gross negligence, negligent infliction of emotional distress, breach of contract, etc.); PIA removed the case asserting foreign instrumentality status.
- Key legal dispute: whether the Montreal Convention governs (and thus preempts) Plaintiffs’ state-law claims, including whether transport of human remains counts as “cargo” and whether the claims are for "delay" (Article 19) or for total nonperformance (outside Article 19).
- Motions: Plaintiffs moved to strike Defendants’ Montreal Convention affirmative defenses and for partial summary judgment on liability; Defendants moved for summary judgment arguing exclusive Montreal Convention governance or, alternatively, insufficient state-law evidence.
- Court disposition: denied Plaintiffs’ motion to strike; denied both parties’ cross-motions for summary judgment as premature because the record is inconclusive on whether the Convention exclusively governs; ordered an evidentiary hearing to resolve whether Article 19 (delay) or a contract nonperformance analysis applies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Montreal Convention applies to international transport of human remains | Tarar and party statements: human remains are not "persons, baggage, or cargo" and thus Convention inapplicable | Precedent (Johnson, Onyeanusi) and treaty text: human remains fall within broad meaning of "goods/cargo," so Convention applies | Court: Montreal Convention applies; "cargo" is broad and includes human remains; denied motion to strike defenses under the Convention |
| Whether the Montreal Convention preempts Plaintiffs’ state-law claims (i.e., Article 29/Article 19 applies) | Plaintiffs: claims reflect total nonperformance or are outside Article 19 and thus not preempted | Defendants: Article 19 applies because this was a delay in carriage, so Convention preempts state-law claims | Court: Record inconclusive on delay vs total nonperformance; summary judgment denied; evidentiary hearing ordered to resolve the threshold preemption question |
| Whether Plaintiffs’ Rule 12(f) motion to strike Montreal Convention affirmative defenses should be granted | Plaintiffs: defenses legally insufficient and should be struck | Defendants: affirmative defenses plausible given Convention applicability | Held: Motion to strike denied — courts disfavor striking; Convention plausibly applies and factual issues remain |
| Whether factual development (evidentiary hearing) is required to decide preemption | Plaintiffs: argued for summary disposition on liability? | Defendants: argued Convention governs as a matter of law | Court: factual disputes (offer of alternate transport, who opted for burial in U.S., why remains were returned to MFS) require an evidentiary hearing before deciding preemption |
Key Cases Cited
- Ehrlich v. American Airlines, Inc., 360 F.3d 366 (2d Cir. 2004) (Second Circuit on interpreting Warsaw/Montreal parallel provisions)
- El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999) (Convention preempts domestic remedies where applicable)
- Johnson v. American Airlines, Inc., 834 F.2d 721 (9th Cir. 1987) (human remains treated as "goods" under Warsaw Convention)
- Onyeanusi v. Pan Am, 952 F.2d 788 (3d Cir. 1992) (agrees with Johnson; broad reading of "goods" prevents exposing carriers to unlimited liability)
- Paradis v. Ghana Airways, Ltd., 348 F. Supp.2d 106 (S.D.N.Y. 2004) (passenger obtaining substitute travel amounts to delay covered by Article 19)
- In re Nigeria Charter Flights Contract Litig., 520 F. Supp.2d 447 (E.D.N.Y. 2007) (where carrier ceased service and offered no alternatives, claims not preempted as mere delay)
- Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978) (treaty interpretation must effectuate the Convention’s purposes)