U.S. District Court for the Eastern District of New York Clarifies Applicability of Montreal Convention to Delayed Transportation of Human Remains

In a two-part opinion, the United States District Court for the Eastern District of New York dismissed a lawsuit by the family of a deceased Pakistani-American whose remains were not loaded onto a scheduled flight to Pakistan, leading to an unplanned burial in the United States.  The family members alleged various state law causes of action, including loss of sepulcher, negligence, gross negligence, negligence per se, negligent infliction of emotional distress, fraud, loss of services and breach of contract against the airline, Pakistan International Airlines (PIA), its cargo handler Swissport, and the Port Authority of New York and New Jersey.  After pre-trial discovery concluded, the parties cross-moved for summary judgment.  Defendants argued that the human remains were “cargo” for purposes of the Montreal Convention and the failure to load such remains onto the scheduled flight constituted a delay under Article 19 of the Convention.  Since the family brought only state law claims, which are preempted by the Convention, the defendants further argued the case should be dismissed.  The family members cross-moved to dismiss defendants’ affirmative defense of preemption, arguing that human remains cannot be “cargo” under the Convention and that, even if the remains were cargo, the failure to load (and thereby prevent a planned immediate burial in Pakistan), constituted nonperformance of contract, which would not be governed by Article 19.

In September 2020, the federal district court issued the first part of its decision, holding that the casket containing the decedent’s remains constituted “cargo” under the Montreal Convention.1 The court relied in part on precedents by the Third and Ninth Circuits that have held human remains are “goods” under the Montreal Convention’s predecessor, the Warsaw Convention.  Article 1(1) of the Warsaw Convention states:

This Convention applies to all international carriage of persons, luggage or goods performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.2

As the Ninth Circuit observed, this language was intended to extend the Warsaw Convention’s liability regime to “all cases in which an aircraft is hired to transport someone or something on an international route.”3 The federal district court found that the Montreal Convention’s replacement of the term “goods” with the even broader term “cargo” evinces the drafters’ intent to expand the scope of the Convention’s application, not restrict it.4 The court rejected the family members’ argument that statements by PIA’s employees that the airline does not treat human remains as “ordinary cargo” constituted a modification or waiver of the Convention.

The District Court then conducted an evidentiary hearing on the issue whether the failure to load the human remains onto the flight for transport was governed by the Convention or constituted nonperformance of contract.  After the evidentiary hearing, the court issued a second opinion that the Montreal Convention applied and dismissed the case.5  Citing testimony of PIA employees, the court found that after initially failing to transport the remains on its own flight, the airline was prepared to make arrangements to transport them immediately on another carrier, but that the family and its funeral services agent never requested that it do so.  Indeed, after the remains did not arrive in Pakistan as scheduled, the family members had decided to hold the burial in the US and returned on a flight the next morning, never informing the airline of their decision.  The family did not provide any evidence of a contractual undertaking by the airline to deliver the remains at a specific time.  The court analogized the case to Paradis v. Ghana Airways Ltd.,6 in which a passenger, faced with an indefinite delay of his flight, decided to obtain “substitute travel” by purchasing tickets with an another carrier.  In both instances, the passenger’s decision to make alternative arrangements, rather than give the carrier a chance to perform the transportation, does not convert a Montreal Convention delay into contractual non-performance.

Having determined that the family’s claims arose from a delay to which Article 19 of the Convention applies, the district court found their state law claims were preempted and dismissed the complaint.

1 Badar v. Swissport USA, Inc., 492 F. Supp. 3d 54, 56 (E.D.N.Y. 2020).

2 Warsaw Convention, Art. 1(1).

3 Johnson v. American Airlines, Inc., 834 F.2d 721, 723 (9th Cir. 1987).

4 Article 1(1) of the Montreal Convention provides: “This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.”

5 Badar v. Swissport USA, Inc., No. 18CV06390DLIRER, 2021 WL 2382444, at *1 (E.D.N.Y. June 10, 2021).

6 348 F. Supp.2d 106, 114 (S.D.N.Y. 2004), aff’d, 194 F. App’x 5 (2d Cir. 2006) (summary order).