The Court of Appeals for the Second Circuit has affirmed the dismissal of a case involving mishandled human remains that raised novel issues under the Montreal Convention. The appeal arose from the dismissal by the United States District Court for the Eastern District of New York of 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. Plaintiffs 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. Plaintiffs did not plead claims for relief under the Montreal Convention, but instead argued that human remains were categorically exempt from the Convention’s scope because they cannot be classified as “persons, baggage, or cargo.”1
Following pretrial discovery, the parties cross-moved for summary judgment. The District Court ruled in September 2020 that the casket containing the decedent’s remains constituted “cargo” under the Montreal Convention. However, the record on summary judgment was not sufficient for the District Court to determine whether the failure to transport the casket constituted a “delay” in transportation, in which case Article 19 of the Montreal Convention would provide the exclusive cause of action and preempt plaintiffs’ state law claims, or a “complete nonperformance” by the carrier, in which case Article 19 would not apply and plaintiffs’ state law claims could proceed. Following an evidentiary hearing to supplement the record, the District Court determined that plaintiffs chose to bury the remains in the United States, rather than re-tendering the casket to PIA for alternative – albeit delayed – transportation. Therefore, Article 19 of the Convention applied, their state law claims were preempted, and the case was dismissed.2
Plaintiffs appealed to the Second Circuit, renewing their argument that claims arising from the transportation of human remains are not covered by the Convention because human remains are not “persons, baggage, or cargo.” The Second Circuit ruled, as a matter of first impression for the Court, that human remains “are properly considered cargo” for purposes of the Montreal Convention. The Second Circuit found that the “essential quality” of cargo is “the fact of transportation . . . not any intrinsic characteristic of that which is transported.”3 Since not only the parties to this case but the commercial aviation industry in general handles human remains similarly to other kinds of cargo (for example, entrusting the casket to a cargo handling agent and arranging the transportation using an air waybill), the Court found that plaintiffs “should not be surprised” by the “cargo” designation.
Plaintiffs also raised the argument that their claims could not have arisen out of a “delay” covered by Article 19 but, rather, from complete nonperformance of the contract of carriage since PIA never transported the remains to Pakistan. The Second Circuit rejected this argument, relying on the District Court’s finding that plaintiffs chose not to re-tender the casket to PIA for transportation on a later flight despite PIA’s readiness to do so and, therefore, plaintiffs’ claim arose from delay. Affirming a line of lower court cases dating back to Paradis v. Ghana Airways, the Second Circuit held that “a passenger or shipper who refuses an offer of delayed transportation, or who makes alternative arrangements, may not assert a claim for complete non-performance.”4 Thus, while the casket was never shipped to Pakistan, the claim was not exempted from the scope of Article 19 because the failure to transport resulted from plaintiffs’ decision not to use PIA’s services following the delay, not PIA’s refusal to perform. While the Second Circuit acknowledged that plaintiffs’ “decision was understandable . . . and it cannot be doubted that [they] found themselves in a hard situation,” it noted that they could have asserted a claim under the Montreal Convention but “consistently” declined to do so.5
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1 Montreal Convention, Art. 1(1).
2 See Badar v. Swissport USA, Inc., 492 F. Supp. 3d 54, 56 (E.D.N.Y. 2020) and Badar v. Swissport USA, Inc., No. 18CV06390DLIRER, 2021 WL 2382444, at *1 (E.D.N.Y. June 10, 2021). Both decisions are discussed in detail in our previous Bulletin dated June 24, 2021, available at https://condonlaw.com/2021/06/u-s-district-court-for-the-eastern-district-of-new-york-clarifies-applicability-of-montreal-convention-to-delayed-transportation-of-human-remains/
3 Badar v. Swissport USA, Inc., No. 21-1669, 2022 WL 16984540, at *5 (2d Cir. Nov. 17, 2022).
4 Id. at *8 (citing various lower court decisions including Paradis v. Ghana Airways Ltd., 348 F. Supp. 2d 106, 112–14 (S.D.N.Y. 2004)).
5 Id.