The United States District Court for the Eastern District of New York recently clarified the meaning of "cargo" under the Montreal Convention. Following an unexpected death on October 25, 2017, the decedent's family opted to transport his body to Pakistan for burial. They arranged transportation on a Pakistan International Airlines ("PIA") flight from New York to Pakistan, with one family member travelling on the same flight. As it happened, this was the last flight that PIA was offering on this route, as PIA was discontinuing its U.S. operations. Upon arriving in Pakistan, it was discovered that the decedent's remains never left New York. Ultimately, the remains were interred in the United States. The decedent's family brought suit against PIA and Swissport, the company that provided cargo-handling services for PIA. The family set forth a number of state-law causes of action, which the defendants asserted were preempted by the Montreal Convention, to which both the United States and Pakistan are party. Plaintiffs moved for summary judgment, seeking to strike this affirmative defense, while Defendants countermoved for summary judgment that the Montreal Convention preempted the state-law causes of action. Plaintiffs argued that human remains do not constitute "persons, baggage, or cargo." The Court disagreed, ruling that human remains are within the meaning of "cargo," although it denied summary judgment as there was a factual dispute as to whether the failure to transport constituted a delay, or complete non-performance.
The Montreal Convention exclusively governs claims related to "damages occasioned by delay in the carriage of passengers, baggage, and cargo..." Plaintiffs filed a summary judgment motion, seeking to strike the preemption affirmative defense. Defendants counter-moved for summary judgment, asserting that the Montreal Convention applied. The Court was thus presented with two questions: whether human remains represented "persons, baggage, [or] cargo," and whether the failure to transport the remains, was a "delay" or complete non-performance.
The Court first determined that human remains are potentially within the scope of the Montreal Convention. Plaintiffs pointed to testimony that PIA did not treat human remains as ordinary cargo, and further cited to Tarar v. Pakistan Int'l Airlines, 554 F. Supp. 471 (S.D. Tex. 1982), in which the United States District Court for the Southern District of Texas ruled that because PIA (the defendant in that case as well) did not consider human remains "ordinary commercial goods," such remains were not "persons, baggage, [or] goods" under the Warsaw Convention (the precursor to the Montreal Convention). Defendants cited to multiple later decisions by other courts, including from the Third and Ninth Circuits, that found the term "goods" as used in the Warsaw Convention was intended to be construed broadly, and encompassed human remains. The Court agreed that the weight of law clearly favored a broad interpretation of "goods" when interpreting the Warsaw Convention. It further ruled that "cargo" as used in the Montreal Convention, was broader than "goods" and its usage indicated that the signatories favored a broad reading of the term. Accordingly, the Montreal Convention could apply to cases involving the international transport of human remains.
The Court next considered whether the defendants' failure to transport the remains was analogous to a delay governed by the Convention, or complete non-performance to which the Convention would not apply. It was undisputed that the Montreal Convention is inapplicable in cases of complete nonperformance. The Court recognized that when a person affected by a delay takes action themselves to procure substitute transportation (for example, booking a flight on another airline), the claim remains one of delay, so long as the original carrier attempted to offer alternative transportation. By contrast, if there is no attempt to offer alternative transportation, it is a case of complete nonperformance outside the scope of the Convention.
Here, the Court found questions of fact. Defendants maintained that Plaintiffs demanded return of the remains and their ultimate decision to bury the decedent in the United States constituted their securing of alternative arrangements. As such, Defendants argued this was delay, rather than nonperformance. The plaintiffs maintained that PIA never presented them with any options for later transportation to Pakistan, and thus this was a case of complete non-performance. Ultimately, the Court determined that the evidence was insufficient for a determination as to whether Defendants' actions represented mere delay, or complete non-performance, and therefore denied both motions for summary judgment. Badar v. Swissport USA, Inc., No. 18-cv-06390 (DLI) (SMG), 2020 U.S. Dist. LEXIS 185392 (E.D.N.Y. Sep. 30, 2020).
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