A recent decision by the U.S. District Court for the Eastern District of New York, Giuffre v. Delta Air Lines,¹ denied plaintiffs’ claims against the carrier based on allegations that the carrier did not allow them to board a flight even though they checked in only a few minutes late. Plaintiffs’ sought monetary damages for: (1) violation of the U.S. regulations regarding “denied boarding;” (2) breach of contract; and (3) breach of the covenant of good faith and fair dealing. The Court granted the carrier’s motion for summary dismissal on all three claims.
The denied boarding regulations set out in 14 C.F.R. Part 250 require that a carrier provide compensation to any passenger who is denied boarding involuntarily when the flight on which the passenger holds a confirmed reservation is oversold.² However, passengers who do not comply fully with a carrier’s contract of carriage or tariff provisions regarding ticketing, reconfirmation and check-in are not eligible for denied boarding compensation.
In Giuffre, Delta argued for summary dismissal based on the fact that the family was unable to complete the check-in process prior to one hour before departure, as required by its tariff. Delta’s tariff provides that the passenger is responsible for arriving at the airport in sufficient time to complete all “ticketing, baggage check, and security clearance procedures.” Furthermore, “check-in” is defined in Delta’s tariff as the “face-to-face contact with a Delta representative,” such that the passenger’s reserved seat status is changed from reserved to checked-in. The tariff refers passengers to the carrier’s website for the appropriate check-in deadlines, which is one hour before departure in the case of customers with checked baggage departing from JFK.
Plaintiffs argued that their arrival in the check-in line more than one hour before departure, although barely so (the family arrived in the check-in line at approximately 7:06 a.m. for an 8:15 a.m. departure), should redeem their claims. Plaintiffs creatively, attempted to rely on a DOT Consent Order finding that it is an unfair deceptive practice in violation of federal consumer protection laws when an airline declares a passenger late when they are in the check-in line on time but cannot reach the check-in counter because the line is too long. The Court disagreed, affording little weight to the DOT Consent Order as it relates to practices in connection with oversold flights, and it was undisputed that the subject flight was not oversold.
The Court also noted that Part 250 does not provide for a private right of action. As to plaintiffs’ breach of contract claim, the Court found the terms of the contract of carriage unambiguous, namely that the passenger is responsible for arriving at the airport in sufficient time to complete all “ticketing, baggage check, and security clearance procedures.” Plaintiffs could not establish their own adequate performance of the contract of carriage, i.e. “check-in” one hour prior to departure, and therefore, their claim for breach of contract failed as a matter of law.
Dismissal of plaintiffs’ breach of contract claim necessarily warranted dismissal of their breach of the covenant of good faith and fair dealing claim, which New York law does not recognize as a separate cause of action distinct from breach of contract.
² Denied boarding compensation has recently been increased. Passengers who are bumped from an oversold flight may now receive 200% of the fare, with a maximum of $650, if comparable air transportation gets the passenger to the next stopover or destination within two hours (four hours for foreign air transportation) of the originally scheduled flight. The maximum amount is doubled, however, to $1,300 if the passenger cannot arrive at his next stopover or destination within four hours. See Condon & Forsyth LLP July 2010 Client Bulletin