Badar v. Swissport USA, Inc., 53 F.4th 739

Nauman Badar died in Queens; his family arranged air transport of his remains to Pakistan via Pakistan International Airlines (PIA) for burial.
Muslim Funeral Services prepared the body (no embalming per Islamic practice) and delivered it to JFK for PIA Flight 712 (Oct. 28, 2017).
Due to a miscommunication among Swissport cargo handlers, the pallet with Badar’s remains did not board Flight 712; family only learned the remains were missing after arriving in Lahore.
The remains were later located at JFK, taken into cold storage, and the family decided to bury Badar in Maryland; they sued PIA and Swissport in New York state court for state-law tort and contract claims.
PIA (a foreign state) removed the case to federal court; defendants moved for summary judgment arguing the Montreal Convention preempts the claims; the district court held remains are "cargo," found PIA offered alternate transport, and dismissed as preempted.
The Second Circuit affirmed: human remains qualify as cargo under the Montreal Convention, and on the district court’s factual finding that plaintiffs declined offered alternate carriage, the claims arise from delay and are preempted.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether human remains are "cargo" under the Montreal Convention	"Cargo" should be limited to commercial goods; human remains are special and not cargo	"Cargo" is any load conveyed by aircraft; remains were handled as cargo (air waybill, cargo area)	Human remains are cargo for purposes of the Convention
Whether plaintiffs’ claims arise from "delay" or from total non‑performance	This was a complete non‑performance (body never transported) so Montreal Article 19 (delay) does not apply	PIA offered substitute carriage; plaintiffs refused/arranged alternate burial, so injury is damage from delay	On district court credibility finding that PIA offered alternate transport and plaintiffs declined, claims arise from delay and are preempted
Whether the district court erred by holding an evidentiary hearing and making factual findings after summary judgment motions	Plaintiffs argued procedural error and challenged admissibility/credibility of PIA testimony	Defendants relied on hearing testimony, contemporaneous emails, and affidavits showing offers and communications	No plain or clear error: plaintiffs had notice, failed timely hearsay objection, and credibility determinations were not clearly erroneous

Cohen v. Am. Airlines, 13 F.4th 240 (2d Cir.) (discussing Montreal Convention interpretation and precedent)
Ehrlich v. Am. Airlines, Inc., 360 F.3d 366 (2d Cir. 2004) (background on Warsaw/Montreal Convention evolution)
El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999) (use of drafting history and postratification understanding in treaty interpretation)
Johnson v. Am. Airlines, Inc., 834 F.2d 721 (9th Cir. 1987) (human remains qualified as "goods" under the Warsaw Convention)
Onyeanusi v. Pan Am., 952 F.2d 788 (3d Cir. 1992) (same; human remains as goods under Warsaw Convention)
Paradis v. Ghana Airways Ltd., 348 F. Supp. 2d 106 (S.D.N.Y. 2004) (refusal of alternate transport converts claim into delay under Warsaw/Montreal regime)
In re Nigeria Charter Flights Cont. Litig., 520 F. Supp. 2d 447 (E.D.N.Y. 2007) (distinguishing delay from non‑performance where alternate transport offered or obtained)