E-Alert Case Updates

Conditions of Carriage are part of an Airline Ticket Contract

Lavine v. American Airlines, Inc.
(Md. App.) (Dec. 1, 2011)
by Kevin M. Cox, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Plaintiffs, Deborah and Matt Lavine (the “Lavines”), purchased two round-trip airline tickets from American Airlines, Inc (“American Airlines”). After buying the tickets, the Lavines received an email, the subject line of which read: “E-Ticket Confirmation”. A summary of the terms and conditions of travel was available by selecting the “Conditions of Carriage” button in the email. The Conditions of Carriage button was conspicuous. The referenced Conditions of Carriage clearly stated that the Tickets and the Conditions of Carriage constituted the contract. Matt Lavine, however, stated in an affidavit that he did not see or receive the document, “Conditions of Carriage.”

On December 21, 2008, upon arrival at the airport to board their flight, the Lavines were informed that their initial flight was delayed. An American Airlines representative allegedly represented that the delay would not affect their connecting flight. However, the Lavines were in fact denied entry to their connecting flight because they did not arrive thirty (30) minutes prior to the scheduled flight time. Additionally, though the Lavines were allegedly told that their connecting flight had departed prior to their arrival for the connecting flight, they claimed that their connecting flight did not depart for an hour past the time that they arrived in order to board the connecting flight. American Airlines provided the Lavines with a hotel room for the night, and a stipend for dinner and breakfast. On the following day, the Lavines boarded a flight to their destination, which was Key West, Florida.

Six (6) months later, the Lavines filed a five (5) count Complaint consisting of various counts of negligent and intentional misrepresentation. Each of the Lavines sought $10,000.00 in compensatory damages and $10,000.00 in punitive damages.

American Airlines filed a Motion for Summary Judgment four (4) months after the filing of the Complaint, which was granted by the Circuit Court for Howard County. The Lavines filed the instant appeal. One of the issues presented to the Court of Special Appeals of Maryland was whether there was a dispute of material fact regarding the Conditions of Carriage.

The Lavines contended that there was a dispute of material fact regarding whether they both saw and agreed to the Conditions of Carriage, a document the significance of which was readily apparent. Essentially, the Lavines argued that the Conditions of Carriage were not part of the contract of carriage.

Section 41707 of the Airline Deregulation Act (“ADA”) provides that, “[t]o the extent the Secretary of Transportation prescribes by regulation, an air carrier may incorporate by reference in a ticket or written instrument any term of the contract for providing interstate air transportation.” By regulation, “[a] ticket or other written instrument that embodies the contract of carriage may incorporate contract terms by reference (i.e., without stating their full text), and if it does so shall contain or be accompanied by notice to the passenger . . . .” 14 CFR § 253.4(a). The ticket or written instrument must include a “conspicuous notice” that “[a]ny terms incorporated by reference are part of the contract . . . .” Id. at § 253.5(a). The incorporated terms may include information regarding the “[r]ights of the carrier and limitations concerning delay or failure to perform service, including schedule changes, substitution of alternate air carrier or aircraft, and rerouting.” Id. at § 253.5(b)(5).

In the Court’s view, the ADA and regulations authorized by it permitted American Airlines to incorporate by reference the Conditions of Carriage to the “E-Ticket Confirmation” email and – more importantly – they were a part of the contract between the Lavines and American Airlines. Therefore, the Lavines’ assertion that they did not receive or see the Conditions of Carriage before or after of the purchase of the tickets did not create a genuine dispute of material fact.