In the El-Zoobi case, the Court noted that “On March 18, 2012, plaintiff was a passenger on United Airlines flight 897 from Dulles International Airport in Washington, D.C. to China. Brenda Dismuke, the ‘purser’ (i.e., the flight attendant in charge), testified…that prior to takeoff, an announcement was made for all passengers to turn off their electronic devices…. it is undisputed that at some point (flight attendant Tucker) asked plaintiff to turn off his cell phone and plaintiff refused…(Dismuke) asked (plaintiff) to turn off his phone. Again, he refused… (The Captain) sent another pilot to speak to plaintiff (who informed the pilot) that he was an employee of the FAA…Dismuke testified that she went back to plaintiff and requested that he turn off his cell phone (and eventually he did)”.
In this week’s article, we discuss the case of El-Zoobi v. United Airlines, Inc., 2016 IL. App. (1st) 150813 (Ill. App. 2016) wherein plaintiff appealed the dismissal of his lawsuit alleging tortious interference with a business relationship and intentional infliction of emotional distress claims. “Plaintiff alleged that defendant, through its agent (flight attendant) filed a report with his employer, the Federal Aviation Administration (FAA), containing false information concerning his failure to comply with a crew member instruction on board an international flight from Washington D.C. to Beijing, China”. The trial court dismissed the plaintiff’s complaint on the grounds that the Montreal Convention governs the rights and remedies of the parties and plaintiff’s claims “do not allege an ‘accident’ or bodily injury and can (not) stand under the terms of the Convention”.
Terror Targets Update
In Walsh, Trump Talk of Terror Listing for Muslin Brotherhood Alarms Some Arab Allies, nytimes.com (2/20/2017) it was noted that “In Morocco, it would tip a delicate political balance. In Jordan, it could prevent American diplomats from meeting with opposition leaders. In Tunisia, it could make criminals of a political party seen as a model of democracy after the Arab Spring. Of all the initiatives of the Trump Administration that have set the Arab world on edge, none has as much potential to disrupt the internal politics of American partners in the region as the proposal to criminalize the Muslin Brotherhood, the pre-eminent Islamist movement with millions of followers”.
Recruiting The Underwear Bomber
In Shane, F.B.I. Interviews Tell of Cleric’s Role in Plot to Bomb Up Plane, nytimes.com (2/23/2017) it was noted that “Newly released documents obtained by The New York Times after a two-year legal battle under the Freedom of Information Act, fill in the details of a central episode in the American conflict with Al Qaeda: Mr. Abdulmutallab’s recruitment by (the cleric) Mr. Awlake and his failed attempt to blow up an airliner approaching Detroit on Christmas in 2009 using sophisticated explosives hidden in his underwear…The government allegation that Mr. Awlake was behind the underwear bomb plot-never tested in a court of law-became the central justification that President Barack Obama cited for ordering the cleric’s killing in a drone strike in Yemen in 2011″.
Danish Welfare Benefits For Terrorists
In Bilefsky, Danes Fighting for ISIS Were Paid Welfare Benefits, Government Says, nytimes.com (2/21/2017) it was noted that “The Danish government has been inadvertently paying benefits to citizens fighting for the Islamic State in Syria. Danish official said Tuesday, as outrage grows that militants are manipulating the country’s generous welfare system. About 145 Danes have traveled to Syria or Iraq to fight for militant groups since 2012…Officials said this week that they had identified a number of Danish citizens who, while receiving government disability pensions, had traveled to Syria to join the Islamic State, also known as ISIS”.
ISIS Recruits In Trinidad
In Robles, Trying to Stanch Trinidad’s Flow of Young Recruits to ISIS, nytimes.com (2/21/2017) it was noted that “Law enforcement officials in Trinidad and Tobago, a small Caribbean island nation off the coast of Venezuela, are scrambling to close a pipeline that has sent a steady stream of young Muslims to Syria, where they have taken up arms for the Islamic State…American officials worry about having a breeding ground for extremists so close to the United States, fearing that Trinidadian fighters could return from the Middle East and attack American diplomatic and oil installations in Trinidad or even take a three-and-a-half-hour flight to Miami”.
Cruise Line Safety Reports 2016
In Press Release, [email protected] (2/13/2017) it was noted that “International Cruise Victims Association (ICV) has worked for years to have more comprehensive safety on cruise ships. Through their efforts in working with Congress, in 2016 new cruise ship crime reporting requirements took effect…These new Cruise Line Incident Reports are being issued by the Department of Transportation…For example, the report shown below…indicates that (during the period 2015-2016) sexual assaults increased 485% over previous public reports and total reported alleged crimes increased 339%”.
Don’t Breathe In London, Please
In de Freytas-Tamura, A Push for Diesel Leaves London Gasping Amid Record Pollution, nytimes.com (2/17/2017) it was noted that “As soon as the weather turns cold, Tara Carey, an international aid worker living in London, ritually places cough syrup on her bedside table because she knows her sleep will be punctuated by hacking coughs. She also coughs at work. And she coughs while cycling to her office, on a road so toxic that for a brief period last month the air pollution there was greater than in infamously smoggy Beijing…In Ms. Carey’s view, she said the only reasonable explanation for her illness (asthma) was the pollution to which she was exposed over the last six years cycling through thick traffic on Brixton road, one of London’s busiest and most noxious routes…London is choking from record levels of pollution, much of it caused by diesel cars and trucks, as well as wood-burning fires in private homes, a growing trend. It has been bad enough to evoke comparisons to the Great Smog of December 1952 in which fumes from factories and house chimneys are thought to have killed as many as 12,000 Londoners”.
Don’t Breathe In New Delhi, Please
In Anand, India’s Air Pollution Rivals China’s as World’s Deadliest, nytimes.com (2/14/2017) it was noted that “India’s rapidly worsening air pollution is causing about 1.1 million people to die prematurely each year and is now surpassing China’s as the deadliest in the world, a new study of global air pollution shows. The number of premature deaths in China caused by air particles, known as PM2.5, has stabilized globally in recent years but had risen sharply in India (which) had registered an alarming increase of nearly 50 percent in premature deaths from particulate matter between 1990 and 2015″.
Take A Virtual Test Drive
In Levere, Before You Take the Trip: How About a Virtual ‘Test Drive’?, nytimes.com (2/12/2017) it was noted that “travel companies and tourism boards are increasingly turning to virtual reality to expand their reach and entice prospective clients. In November, for instance, the Tourism Authority of Thailand released four 360-degree videos, including one on an elephant sanctuary near Chiang Mai and another on the Khao Luang Cave in western Thailand…Virtual reality, he added, ‘allows consumers to interact with us in a way they never have before’. Cathy Tull, senior vice president of marketing for the Las Vegas Convention and Visitors Authority, said virtual reality let consumers ‘test drive’ a destination. The most popular of the 30 360-degree videos that the Las Vegas authority has released since March is an actual drive down Las Vegas Boulevard”.
New York Subways Not So Good
In Fitzsimmons, Subway’s Slide in Performance Leaves Straphangers Fuming, nytimes.com (2/12/2017) it was noted that “Subway riders in New York City have become increasingly angry about the quality of services. Their fury is justified. After a long period of improvement, the system’s reliability has dropped significantly, with delays more than doubling over the last five years, according to a review of data from the (MTA). Subway delays have jumped to more than 70,000 each month, from about 28,000 per month in 2012, according to the data. On some lines, trains arrive late to their final destination well over half the time”.
Waldorf Astoria Renovations
In Barron, End of Era Looms as Waldorf Astoria Prepares for Hiatus, nytimes.com (2/24/2017) it was noted that “For out-of-towners…word that the Waldorf would soon take a two to three-year hiatus for renovations had the urgent ping of a homing signal. They wanted to see for themselves what had made the Waldorf so famous for so long: the corridors where Presidents, princes and princesses roamed; the restaurants that gave the world eggs Benedict, veal Oscar, Waldorf salad and Thousand Island dressing; the two-ton clock tower in the lobby topped by a little Statue of Liberty; and Cole Porter’s Steinway piano. Maybe even room service, which the Waldorf claims to have inaugurated…The Waldorf will be reconstituted as a smaller hotel with more apartments (which) are expected to be condominiums”.
Goodbye Ringling Brothers Circus
In Zinoman, The Last Act for the Ringling Circus, nytimes.com (2/24/2017) it was noted that “As a small kid growing up on the 1980s, I truly believed that Ringling Brothers and Barnum & Bailey circus was the greatest show on earth… By the next decade, Cirque du Soleil, the arty alternative circus that grew into a new kind of juggernaut, made that ‘greatest show’ claim sound a little ridiculous. But when I returned to Ringling Brothers on Thursday at Barclays Center, I watched a daredevil horsewoman, a real-life Indiana Jones, duck between the legs of her ride, moving from one side to the other at full gallop, and I was jolted back to the wonder of my childhood. This show was Barnum’s final stop in New York after nearly 150 years of performing”.
Drone Sightings Increase
In FAA: Drone sightings near air traffic facilities increased in 2016, etn.travel (2/23/2017) it was noted that “The (FAA) today released an updated list of pilot, air traffic controller, law enforcement and citizen reports of potential encounters with unmanned aircraft system (UAS)-more popularly called ‘drones’. The latest data cover February through September 2016…Reports of possible drone sightings to FAA air traffic facilities continued to increase during FY 2016. There were 1,274 such reports…compared with 874 for the same period in 2015″.
Self-Driving Cars: Google v. Uber
In Wakabayashi & Isaac, Google Self-Driving Car Unit Accuses Uber of Using Stolen Technology, nytimes.com (2/23/2017) it was noted that “Waymo, the self-driving car business spun out of Google’s parent company, claimed in a federal lawsuit on Thursday that Uber was using intellectual property stolen by one of Google’s former project leaders. In a federal court filing in San Francisco, Waymo said (Mr. X) who runs Uber’s autonomous car division, downloaded 14,000 files from Google a month before leaving to start his own self-driving car company, Otto. Uber acquired Otto in August for $680 million”.
In Isaac & Wakabayashi, A Lawsuit Against Uber Highlights the Rush to Conquer Driverless Cars, nytimes.com (2/24/2017) it was noted that “Late last year, Uber, in defiance of California state regulators, went ahead with a self-driving car experiment on the streets of San Francisco…The experiment quickly ran into problems. In one case, an autonomous Volvo zoomed through a red light on a busy street in front of the city’s Museum of Modern Art… Alphabet and Uber view autonomous vehicles as using critical technology that may upend the automobile industry. Google started working on driverless cars around the time when Uber was formed and Google is eager to prove that, despite its size and past successes, it can still innovate like a startup”.
Air Canada On The Move
In Bachman & Tomesco, Air Canada’s Plan of Attack Flies Over America, Bloomberg, msn.com (2/15/2017) it was noted that “When it comes to maintaining domestic air superiority, U.S. carriers have been shaking their fists at Persian Gulf airlines that have rapidly increased their American presence. Yet there’s another threat that may be growing in their own backyard-or more precisely just north of it. Air Canada has been around for 80 years, but only recently sought to parley torrid growth into global ambition. The company aims to turn its three major Canadian hubs into larger transfer points for global travelers crossing North America. Flying to Europe or Asia? Try Toronto, Montreal or Vancouver as your connection-you may very well like these airports far more than Chicago, New York or Los Angeles, Air Canada is telling travelers”.
Travel Law Article: The El-Zoobi Case – Reporting To The FAA
“A few hours into the flight, Dismuke approached plaintiff. She asked his name and for his FAA credentials. Plaintiff told her that he was a program manager for the FAA but he could not produce any identification. He did provide his work telephone number…Dismuke decided that she was going to report plaintiff to the FAA…Dismuke testified that immediately upon arriving at her hotel (in Beijing) she went to the FAA website and filed a complaint against plaintiff on the agency’s help hotline”.
Dismuke’s complaint stated, in part, that “I was the purser on this flight. FA (flight attendant) told the passenger in 11A that he would have to turn off his phone. He said he didn’t need to, then he says it is ok to have phone in airplane mode. She said No. He insisted…he was arrogant and did not want to follow instructions…We had to delay the flight to handle your employee…He was rude, arrogant and non-compliance…Dismuke testified that she decided to file the complaint because either plaintiff was an employee of the FAA, in which case the agency should know that he was not following the rules and was not compliant or he was not a FAA employee but was impersonating an employee, which she thought would also concern the agency”.
The FAA Responds
“Thereafter, the FAA contacted United and United requested that Dismuke file a flight attendant irregularity report through United. She did so and the report was (almost) identical to the complaint she filed with the FAA…As a result of the complaint and follow-up investigation, the FAA sent plaintiff a ‘Notice of Proposed Civil Penalty’ in the amount of $6,000. Subsequently, after internal review of the incident, the FAA withdrew the ‘Notice of Proposed Civil Penalty’”.
“On March 18,2014, plaintiff filed a complaint in the circuit court of Cook County against defendant alleging tortious interference with a business relationship and intentional infliction of emotional distress. He alleged that because of the ‘false complaint’ he lost an opportunity for a promotion and suffered and continues to suffer loss of advancement as well as ‘severe emotional distress’. Thereafter, defendant filed a motion to dismiss…asserting that Montreal Convention governs plaintiff’s claims and he failed to state a claim under the Convention’s terms”,
The Montreal Convention
“The primary issue on appeal is whether the Montreal Convention governs this case [see Dickerson, Travel Law, Chapter 2A, Law Journal Press (2017)]. Plaintiff contends that it does not apply because the alleged harm was caused by defendant’s agent filing an allegedly false report against him to his employer, which did not occur on the plane. Defendant maintains that the convention does apply because the alleged harm was caused by his behavior on board the plane which led Dismuke to filing the complaint…The United States Supreme Court has held that when a claim falls with the scope of the Montreal Convention there can be no recovery under state law (citing El Al Israel Airlines v. Tseng, 525 U.S. 155 (1999))…To determine whether a claim falls within the scope of the Montreal Convention, we consider the event that caused the injury not the occurrence of the injury itself (citing Air France v. Saks, 470 U.S. 392 (1985))”.
“Here, both the plaintiff’s and defendant’s versions of the facts indicate that a verbal altercation occurred on board the plane. Accepting plaintiff’s version, however, as we must: First Tucker asked plaintiff to turn off his phone and he refused; then Dismuke asked plaintiff to turn off his phone and he refused; and eventually a pilot asked him to turn off his phone, at which point he finally turned it off. It is apparent that plaintiff told a member of the flight staff that he was an employee of the FAA. Plaintiff maintains that when Dismuke approached him during the flight to ask him for his FAA employee ID, which he did not have, she ‘harassed’ him…Regardless of what occurred on the plane, it is clear that but for those events, Dismuke would not have filed the complaint and plaintiff would not have suffered his alleged injury. Furthermore, it is reasonably foreseeable that a flight attendant would file a report against a passenger that he or she believes is unruly…the conduct on the plane cannot be separated from the physical act of filing the complaint…The events on the plane were…the first casual link in the chain that led Dismuke to file the complaint which allegedly caused plaintiff’s injuries”. Dismissal of complaint affirmed.
Thomas A. Dickerson is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org
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