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Full Opinion
MEMORANDUM, ORDER, & JUDGMENT
I. Introduction and Synopsis.................................................351
II. Facts ..........-.........................................................353
A. Parties..............................................................353
B. Terminal’s Contractual Rights and Responsibilities........................354
C. Terminal’s Snow Plan.................................................354
D. Snowstorm of December 2010 ..........................................355
E. Understaffing........................................................355
F. Failure to Warn......................................................356
G. Trapped Passengers ..................................................357
H. Conditions at Other Facilities ..........................................358
1. International at JFK..............................................358
2. Domestic at JFK..................................................358
3. Nearby Airports..................................................359
I. Effect of Incident on Plaintiff..........................................359
III. Jurisdiction..............................................................359
IV. Summary Judgment Standard..............................................360
V. Choice of Law............................................................360
VI. International Law........................................................361
A. Montreal Convention Preempts Claims Against Carriers and Their Agents............................................................361
B. Terminal is an Agent of Air Carriers....................................363
C. Articles 17 and 19 Do Not Permit Claims for Emotional and Dignitary Harm.............................................................364
1. Article 17........................................................364
2. Article 19........................................................366
D. No Recovery Under Convention........................................368
VII. New York State Law......................................................368
A. Negligence ..........................................................368
1. Standard.........................................................369
2. Terminal Had a Duty to Plaintiff....................................369
3. Liability for Emotional Distress.....................................372
B. Intentional Infliction of Emotional Distress ..............................377
C. False Imprisonment ..................................................378
D. No Recovery Under New York Law.....................................381
VIII. Conclusion...............................................................381
I. Introduction and Synopsis
Plaintiff alleges that she was kept locked in an aircraft on the ground without food, water, or adequate sanitary facilities for seven hours, suffering mental distress. Hers is a most appealing case. Yet the law can only give her sympathy, not mone
From December 26th to 27th, 2010, during the height of the holiday travel season, the New York metropolitan area was- — • somewhat unexpectedly — -blanketed with over a foot of snow. John F. Kennedy International Airport (JFK) was closed to air traffic for the worst of the storm. When it reopened, there were continuing problems. Passengers on arriving flights were forced to endure substantial waits after landing before they were able to disembark. Difficulties appear to have been particularly severe at terminals serving international flights. The events sparked a federal investigation and new regulations that forbid foreign air carriers from permitting international flights to remain on the tarmac at a United States airport for more than four hours without allowing passengers to deplane. See Enhancing Airline Passenger Protections, 76 Fed.Reg. 23110, 23110 (Apr. 25, 2011) (extending existing regulations, which applied to domestic carriers, to foreign carriers).
Plaintiff Vivian Vumbaca was one of the stranded passengers. Trapped for most of the night aboard an Alitalia flight from Rome that had arrived at Terminal One, she was forced to endure, as she put it, “cramped, uncomfortable, malodorous conditions, without food, water and sanitation” for nearly seven hours. Pl.’s Mem. of Points and Authorities in Opp. to Def.’s Mot. for Summ. J. 1, Doc. Entry 22, Jan. 31, 2012 (“Pl.’s Summ. J. Mem.”). This resulted, according to her, in “severe emotional distress.” Compl. ¶ 19, Doc. Entry 1, Nov. 10, 2011 (“Compl.”).
She sued Terminal One Group Association, L.P. (TOGA), which operates Terminal One, and seeks to represent similarly situated passengers claiming emotional harms resulting from negligence, false imprisonment, and intentional infliction of emotional distress. See generally Compl. She initially pled simple state law causes of action for negligence, false imprisonment, intentional infliction of emotional distress, and prima facie tort (presumably under New York law). She now concedes that the prima facie tort claim should be dismissed. PL’s Summ. J. Mem. 22.
Defendant moves to dismiss all of plaintiffs claims on the ground that plaintiff failed to state a claim under New York law. Def.’s Mot. to Dismiss for Failure to State a Claim, Doc. Entry 12, Dec. 9, 2011.
At the court’s direction, the motion directed at the pleadings was converted to one for summary judgment. Order, Doc. Entry 14, Dec. 20, 2011. Briefing was also ordered on the applicability and effect of the Montreal Convention, an international treaty governing the liability of air carriers and their agents. Order, Doc. Entry 33, Feb. 16, 2011; see The Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, reprinted in S. Treaty Doc. No. 106-45, 1999 WL 33292734 (2000) (“Montreal Convention”). Following a hearing, ordered were supplemental discovery and briefing on the issue of what, if any, harms plaintiff suffered. See Order, Doc. Entry. 41, Feb. 24, 2012.
Plaintiff initially only claimed tort damages under New York State law for “hunger, thirst, foul air, and the absence of sanitary facilities.” Compl. ¶ 19. After the court pointed out legal difficulties in her original claim due to her lack of physical injury, she sought, in effect, to amend her complaint through her brief. She now claims that the Montreal Convention permits her to recover for the harms initially alleged. She also says she is “entitled to recover, under the ... Montreal Convention, damages for: delay and inconvenience including economic losses ... [and] out-of-pocket losses for delay of baggage.”
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, only “a short and plain statement of [the facts of] the claim showing that the pleader is entitled to relief is required, not legal analysis.” Plaintiff’s original statement of the facts in her complaint supports her legal theory and claim for emotional and dignitary harms under the Convention. This new theory of relief will be considered.
There is no reason to permit plaintiff to go forward on her new claims for economic loss due to delay of her baggage. The many factual questions of when her baggage was offloaded, what caused its delay, when it was made available to her, and why and to what extent she suffered economic loss due to baggage delay, will require additional costly discovery. Any economic costs due to delays in baggage delivery do not warrant the extensive cost of extended litigation, since any recovery is likely to be de minimis.
As to the claim for economic loss due to delay of the person, only a taxi fare of $55 is claimed. See Part II(I), infra. No factual claim under Rule 8 was made in the complaint for economic loss due to delay. The large cost of permitting discovery at this late date on economic loss is unwarranted, particularly since so small a sum is involved.
An amendment of the complaint will not be authorized at this late stage in the proceeding. The court will only consider the claims relating to the harms initially raised by the complaint and motion for summary judgment — those for injury to the person.
Analysis of the applicable legal theories may be helpful to the reader. Two bodies of law need to be considered. Since defendant TOGA is an agent of the air carriers it serves, plaintiffs state tort claims are preempted by the Montreal Convention, and she can only recover to the extent permitted by it. See Part VI(A), infra. Plaintiff argues that the Convention would permit her to recover under either Article 17 or Article 19. PL’s Injury Mem. 1. Article 17 governs-injuries to the person that occur on aircraft or while embarking or disembarking — as occurred in this case. See Part VI(C), infra. While applicable, Article 17 does not permit recovery because plaintiff has not suffered a “bodily injury,” as required by that provision. Id. Similarly, Article 19, which covers damages caused by delay, only permits recovery of economic loss, not the physical harms sought under plaintiffs complaint. See Part VI(B), infra.
Were the terminal to be found not to be an agent of the air carrier, then New York common law, rather than the Convention, would apply. Plaintiffs intentional tort claims under New York law are without merit. See Parts VII(B)-(C), infra. Nor can plaintiff recover under a theory of negligence, since New York law generally denies recovery for emotional distress in the absence of an accompanying or consequential physical injury — which is lacking here. See Part VII(A), infra.
Because plaintiffs claims fail under either body of applicable law, defendant’s motion for summary judgment is granted.
II. Facts
A. Parties
Plaintiff is a legal permanent resident of the United States residing in New York. Compl. ¶ 10. She sues TOGA, a New York
B. Terminal’s Contractual Rights and Responsibilities
Under the terms of its lease agreement with the owner and operator of JFK, the Port Authority of New York and New Jersey (Port Authority), TOGA “agreefd] to provide service at the premises for the benefit of the traveling public.” TOGA Lease at 188. It assumed “the entire responsibility for ... all repair, ... and maintenance whatsoever in the premises, whether such repair ... or maintenance be ordinary or extraordinary, [including] ... removing] all snow and ice and performing] all other activities and functions necessary or proper to make the premises available for use.” Id. at 74 (emphasis added). TOGA further agreed to “furnish all necessary or proper personnel, ... and facilities [and] ... furnish such services promptly, efficiently, and adequately to meet the demands therefor.” Id. at 62.
TOGA had sole responsibility for managing the gates by which passengers moved between the terminal and an airplane. Junge Dep. 118:24-119:2. This included the duty and discretion to select a ground handling provider to move planes to and from the gates. Alitalia Lease at TOGA 000096. A four-person crew is typically required: a “pushback” operator who moves the aircraft away from the gate; two “wing walkers” who ensure adequate clearance; and a supervisor. PL’s Rule 56.1 Statement Ex. 6, at 192:5-19 (Dep. of Neil Samaroo), Doc. Entry 23, Jan. 31, 2012 (“Samaroo Dep.”). TOGA subcontracted with Aircraft Service International Group (ASIG) for ground handling. PL’s Rule 56.1 Statement Ex. 7 (Contract Between TOGA and ASIG), Doc. Entry 23, Jan. 31, 2012 (“ASIG Contract”).
Pursuant to its contract with TOGA, Alitalia agreed to “indemnify and hold harmless” TOGA “from ... all claims of third parties or otherwise, including claims for death, personal injuries or property damages arising out of ... the use or occupancy of the Terminal One Facilities.” Alitalia Lease at TOGA_000060. Alitalia also agreed to:
indemnify, defend and hold harmless [ASIG] from and against all claims, losses, liability, damages, causes of action and judgments, including all costs and expenses incident thereto ... on account of ... injury to or death of any person, arising out of the negligence or willful misconduct of [ASIG], its employees, officers, directors,' or partners in furnishing services pursuant to this agreement.
Id. at TOGA_000096.
C. Terminal’s Snow Plan
TOGA has a written snow plan. PL’s Rule 56.1 Statement Ex. 8 (Terminal One Snow Plan), Doc. Entry 23, Jan. 31, 2012 (“TOGA Snow Plan”). It allocates responsibility and outlines procedures for clear
It may be necessary to coordinate with carrier maintenance representatives to move aircraft back from the gates to facilitate plowing. ASIG should be aware of this possibility and have qualified push-back personnel available. Close coordination is essential for safe operation.
Id. at TOGA_000012.
Pursuant to the snow plan, some of TOGA’s contractors, such as Airway Cleaners, Inc. (ACI), are required to “freeze”- — i.e., extend — their employees’ shifts in the event of a snow operation. Id. at TOGA_000016 (stating that employees of ACI who are on duty during a snow operation “will have their shift ‘frozen’ until further notice to supplement incoming shifts”); see also Samaroo Dep. 146:21-147:15. ASIG, which provided ground handling, was not required to “freeze” its staffing during a snow event. See Samaroo Dep. 147:16-19; see generally ASIG Contract.
D. Snowstorm of December 2010
On December 23, 2010, the Port Authority, recognizing the severity of the oncoming storm and its potential impact on airport operations, declared a snow emergency. Junge Dep. 107:19-20. To prepare, the Port Authority brought in extra employees and placed them in an airport hotel to ensure adequate staffing. Id. 107:19-108:13.
On December 25th, TOGA advised air carriers which used Terminal One that “all service providers are prepared and ready with manpower and equipment.” Pl.’s Rule 56.1 Statement Ex. 9, at TOGA-000196 (Summary of Events Created by Neil Samaroo), Doc. Entry 23, Jan. 31, 2012 (“Samaroo Summ.”).
Snow began falling at 10:18 a.m. on December 26, 2010. Pl.’s Rule 56.1 Statement Ex. 4, at 1 (JFK Airport Operations Log), Doc. Entry 23, Jan. 31, 2012 (“JFK Operations Log”). The airport was closed at 7:17 p.m. that evening. Id. at 3.
According to the defendant’s “Daily Shift Report,” “all of [TOGA’s] carriers were asked to either consolidate flights, delay, or cancel altogether” that day. PL’s Rule 56.1 Statement Ex. 18 (Daily Shift Report), Doc. Entry 23, Jan. 31, 2012. Nine incoming international flights to Terminal One were cancelled by airlines on December 26, 2010. JFK Operations Log at 3. Sixteen flights bound for Terminal One were cancelled by airlines on the 27th. Samaroo Summ. at TOGA_000201.
The storm ended on December 27th at approximately 8:00 a.m. JFK Operations Log at 6. Over fifteen inches of snow had fallen. Id. The airport reopened at 6:07 p.m. that day. Id. At that time, all the gates at Terminal One were still occupied with aircraft that had been prepared for departure when the airport closed the previous night. Samaroo Dep. 75:19-76:22.
E. Understaffing
ASIG had sufficient staff at Terminal One on the morning shift of December 26th. Samaroo Dep. 81:3-20. While some employees stayed past the end of their shift, most went home. Id. Staff from subsequent shifts did not arrive. As early as 1:00 p.m. on December 27th, 80% of ASIG’s scheduled employees were absent. Pl.’s Rule 56.1 Statement Ex. 12 (Email from Ed Paquette to TOGA’s Officers), Doc. Entry 23, Jan. 31, 2012. By December 28th, ASIG was operating with an 85-90% staffing deficit. PL’s Rule 56.1 Statement Ex. 10 (Email from Ed Paquette to TOGA’s Officers), Doc. Entry 23, Jan. 31, 2012 (“Dec. 28 Email from Ed Paquette”). Normally one hundred ASIG ground handlers were required to operate Terminal
Without sufficient ground staff, both departing and arriving aircraft experienced delays in moving to and from the gates. Samaroo Summ. at TOGA_000210. Aircraft blocked gates from between twenty-four hours and three days. Id. at TOGA_000207-09. And planes could not be moved to fully clear the snow on the tarmac. Id. at TOGA_000210; see also Samaroo Dep. 81:23-83:12 (“[T]he personnel that were on duty were not sufficient enough to even accommodate us moving an aircraft off the gate in order for snow removal to be done.”).
While TOGA had mobile stairs and buses available to help disembark aircraft passengers at a remote location away from the terminal, it was unable to use this equipment because of uncleared snow, ramp conditions, and a lack of staff to operate equipment. Samaroo Dep. 137:16-140:3.
ACI, which had frozen its employee’s shifts, was adequately staffed during this period. Dec. 28 Email from Ed Paquette. So were other subcontractors that serviced Terminal One, including companies responsible for cleaning planes and for operating restaurants in the terminal. Id. Like ASIG staff, many of these employees relied on public transportation to get to Terminal One. Id.
Another ground handling company that serviced different terminals, Swissport, took affirmative steps to ensure adequate staffing during and following the snow emergency. It arranged accessible meeting places and sent vehicles to neighborhoods where employees lived to transport them to the airport. Junge Dep. 203:15-205:19. But defendant notes that, at Terminal Four, Swissport operated with only 10% of normal personnel. Id. at 189:5-189:13, 205:13 -205:19. Defendant also points to evidence that the entire airport was staffed at approximately 10% of its regular needs, and that similar staffing problems were experienced at Terminals One, Four, Seven, and Eight. Id. at 94:11-96:6.
F. Failure to Warn
In the event of adverse conditions at the terminal, TOGA’s practice is to contact the local station managers of the airlines it services rather than to contact the headquarters of those airlines. Samaroo Dep. 49:23-25. Local station managers do not have the authority to cancel flights that begin abroad. Junge Dep. 190:7-191:5; Samaroo Dep. 125:21-126:6; 162:13-17; 174:2-14.
As events developed on December 27th-28th, phone calls were made by TOGA to the local station managers “generally pertaining to the events that took place” and “advis[ing] the earners [of] the conditions that the terminal was in, the progress of the snow removal process, the staffing situation with the ground handler that we were having and the fact that there w[ere] no gates available for inbound flights, and to cancel flights.” Samaroo Dep. 206:20-207:21. Plaintiff claims that Samaroo’s testimony that TOGA told Alitalia to cancel its flights is contradicted by other documentary evidence and is not credible. Pl.’s Summ. J. Mem. 12-13 (“[T]he written summary of events does not reflect [that these calls were made], nor does it reflect any calls to Alitalia.... [T]he summary shows that only two carriers operated flights after being advised not to do so.... It makes no sense that his summary would have specifically mentioned those two carriers if all the carriers who sent flights had ignored TOGA’s instructions.”). There are no written records of these claimed cancellation calls. Although daily shift reports are regularly used by TOGA, Samaroo
On December 28th at 2:50 a.m., TOGA Manager on Duty, Miguel Arvelo, emailed Alitalia’s local manager, Gaetano Messina:
I know during our previous conversation you agreed to delay flights if necessary. At this time I do not think adding an additional flight to tomorrow’s operation would be wise. I must insist that you consider delaying and/or canceling at least one of these flights [AZ608; AZ604; AZ610; AZ6608]. Due to can-celled and delayed flights there may not be enough gates to handle even regularly scheduled flights.
PL’s Rule 56.1 Statement Ex. 15 (Email from Miguel Arvelo to Gaetano Messina), Doc. Entry 23, Jan. 31, 2012 (emphasis added). At 9:00 a.m. that same morning— before plaintiffs flight left Rome, Italy— Ed Paquette, Executive Director of Terminal One Management, Inc., emailed TOGA’s officers:
Here we are day three and ASIG is still having staffing issues.... I am philosophically opposed to paying for a service I did not receive, particularly on this grand of a scale I am seriously contemplating withholding payment for the last three days, not partial payment but full payment.
Dec. 28 Email from Ed Paquette.
On December 28th, three Alitalia flights were delayed in setting off for New York for between one and three hours; none were cancelled. PL’s Rule 56.1 Statement Ex. 16 (Historical Schedule for 12/28/2010), Doc. Entry 23, Jan. 31, 2012. The departure of plaintiffs flight from Italy was delayed for one hour. Id.
One or more airlines other than Alitalia were apparently “guaranteed” a gate at Terminal One prior to their departure from abroad, but these- planes were nevertheless forced to wait -for hours on the tarmac before being permitted to access a gate and offload passengers. PL’s Rule 56.1 Statement Ex. 19 (JFK Post-Blizzard Foreign Carrier Tarmac Delays: Synopsis of Incidents for FAA Feb. 8, 2011), Doc. Entry 23, Jan. 31, 2012 (FAA Synopsis).
Both before, during, and after the storm, TOGA never communicated directly with the headquarters of the foreign airlines it services regarding conditions at the terminal, although it could have done do. Samaroo Dep. 187:11-188:5.
G. Trapped Passengers
Because- of the inadequate ground handling staff,, planes arriving at Terminal One were unable to access gates in a timely manner, whether because those gates were blocked by empty aircraft or because the approach was blocked by snow. Nor was there any . other feasible means of disembarking those passengers. See Part 11(D), supra.
Between the afternoon of December 28th and the morning of December 29th, there were at least sixteen flights arriving at Terminal One with tarmac delays in excess of four hours. Samaroo Summ. at 1L
Without any- means of egress from the aircraft, passengers were effectively trapped. Toileting conditions became unsanitary. Compl. ¶ 7. There was limited food and water. Id.; see also Aff. of Michael J. Holland Ex. B (Dep. of Vivian Vumbaca 19:15-20:5; 21:3-25) (“Vumbaca Dep.”).
Plaintiff was one of the stranded passengers. When her flight landed on December 28th at 7:22 p.m., PL’s Rule 56.1 Statement Ex. 16 (Historical - Schedule for 12/28/2010), Doc. Entry 23, Jan. 31, 2012, the aircraft could not reach the taxiways, nor could emergency equipment reach the aircraft. Compl. ¶¶ 15-16. She was
H. Conditions at Other Facilities
1. International at JFK
It is unclear whether passengers arriving at other international terminals experienced the same lengthy delays experienced by plaintiff and her fellow passengers at Terminal One. At Terminal Eight, for example, American Airlines told Finn Air that the terminal was closed and not to send any flights until further notice. Junge Dep. 195:15-197:16. There were no extended tarmac delays at that terminal. Junge Dep. 172:7-177:4. Similarly, on December 28, 2010 at 10:00 a.m., Terminal Four sent a “blast fax to all of the airlines [it serviced] ... that they are not accepting any arrivals until [6:00 p.m. local time].” JFK Operations Log at 12. Flights arriving at Terminal Four experienced tarmac delays of four and a half hours or less. See Pl.’s Rule 56.1 Statement Ex. 13 (Tarmac Times), Doc. Entry 23, Jan. 31, 2012; Junge Dep. 172:7-177:14.
Defendant points to several instances in which passengers on Cathay Pacific flights — a Terminal Seven carrier — endured tarmac delays of four and a half to nearly eleven hours. FAA Synopsis at 2. Similarly, at Terminal Four, five flights experienced delays of over three and a half hours. Id.
International flights throughout JFK may have experienced problems similar to those experienced at Terminal One because of difficulties in interfacing with foreign carriers.
Terminals dominated by foreign international carriers (TI, T4, T7) definitely had more of a problem managing gate throughout than the ones managed by U.S. carriers (T2/3, T5, T8) due to the greater complexity of numerous small carriers with oversea decision making on schedule.... [Terminals a]dvised they have limited control over airline decision to launch international arrivals despite knowing JFK’s field and terminal conditions .... [They a]dvised that some international carrier prefer to have arrival come into JFK with a prolonged wait rather than divert. Some international carriers launch arrivals before they know the details of the opening airport.
Aff. of Michael J. Holland Ex. 22 (Feedback from the January 4, 2011 Meeting with the Terminal Operators & Federal Agencies), Doc. Entry 26, Feb. 7, 2012; see also Junge Dep. 191:5-12 (“[T]he biggest problem I can synopsize out of this whole thing is the individual carriers, business models took precedence over what was really available, able to happen, be accommodated at the airport.”).
2. Domestic at JFK
Conditions at terminals serving domestic flights were not as severe as those at Terminal One. There were at most four domestic flights with tarmac delays in excess of three hours between December 26th and 29th. Junge Dep. 164:11-16; 166:14-24; see also PL’s Rule 56.1 Statement Ex. 20 (Bureau of Transportation Statistics), Doc. Entry 23, Jan. 31, 2012 (showing no domestic flight delays of three hours or more at JFK during the month of December 2010).
Plaintiff alleges that the international terminal was not cleared of snow, and international passengers were subjected to adverse treatment, because airlines were subject to fines if passengers on domestic flights were kept on the tarmac for more than three hours. Compl. ¶ 5; see also Enhancing Airline Passenger Protections, 73 Fed.Reg. 74,586 (proposed Dec. 8, 2008) (to be codified at 14 C.F.R. pts. 234, 259,
Defendant points to testimony that domestic carriers were also less severely affected than international carriers because the former are able to cancel or divert flights to alternative airports more rapidly. Junge Dep. 262:2-262:2.
3. Nearby Airports
Although other airports in the region— including Newark, LaGuardia, Boston, Philadelphia, and Bradley — were similarly affected by the storm, there were no tarmac delays in excess of three hours at any of them. Junge Dep. 167:1-171:21.
I. Effect on Plaintiff
Following an initial hearing held on February 23, 2012, at the court’s suggestion, the parties conducted additional discovery as to the injuries plaintiff suffered due to her entrapment aboard the aircraft. At her deposition, plaintiff testified that she suffered headache, nausea, and exhaustion as a result of the incident:
The injury is dehydration, headache. And the air was unbelievable. And there was no water. The only liquid that you could have was juice. And there was no food apart [from] snacks. And there was a smell of the bathroom that was just in my back, because I was seated in front of the bathroom. It was horrible. And I’m sure each one of the passengers will say the same thing.
I didn’t get any bruises, but I think sometimes it can be worse than that. You know, like waiting forever, with no drinks, and there was no way you could get out of the airplane, and nobody would tell you how long you would be there. And the bathroom was almost unusable. And there was no fresh air whatsoever. So I don’t know. The problem wasn’t a bruise, you know. The problem was that we didn’t have water. We didn’t have like acceptable food, and we were there waiting forever, sitting in a very confined area. And that’s what it was.
I was nauseous for the following three days. I had stomachache, I was very tired.
Vumbaca Dep. 19:15-20:5; 21:3-25; see also Pl.’s Injury Mem. Ex. A (Deck of Vivian Vumbaca ¶ 1), Doc. Entry 45, Apr. 2, 2012 (“Vumbaca Deck”) (“I suffered physical injury, including dehydration, headache, and nausea. I was also physically disgusted by being forced to breathe stale, foul air. I also experienced hunger and thirst, as well as' physical discomfort as a result of being confined to a small space, with little room to move, and inadequate restroom facilities. As a result of these physical conditions, I was physically exhausted for several days, which interfered with my normal activities.”).
Plaintiff also claims that she suffered out-of-pocket and other monetary damages as a result of the tarmac delay. She states that, had her plane disembarked at 6:30 p.m. as scheduled, she would have either taken the train home or had a friend pick her up at the airport. Vumbaca Deck ¶ 3. Because she was not able to leave the airport until after 2:30 a.m., she instead paid approximately $55 for a cab. Id. Since her baggage was not immediately available when she disembarked, she claims she was forced to purchase replacements of personal items, including a toothbrush and toothpaste, costing $50. Id. ¶ 4. She also purchased Advil to treat her headache at a cost of $15. Id. ¶ 5.
III. Jurisdiction
Since plaintiffs complaint alleged only New York State tort claims, jurisdiction
Now that plaintiff also claims under the Montreal Convention, there is federal question jurisdiction. 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”); Montreal Convention art. 33 (“1. An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination. 2. In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.” (emphasis added)).
IV. Summary Judgment Standard
Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir.1999). In determining whether the party seeking summary judgment has met its burden, “the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.” Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.2010).
V. Choice of Law
A federal court sitting in diversity applies the choice-of-law rules of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Fieger v. Pitney Bowes Credit Corp., 251 F.3d 386, 393 (2d Cir.2001). In New York, the “first step in any case presenting a ... choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved.” In re Allstate Ins.
To the extent there is any conflict issue, New York law applies. The instant case arises out of common law rules regulating conduct — i.e., the torts of negligence, false imprisonment, and intentional infliction of emotional distress. The plaintiff is a New York resident, and the defendant a limited liability partnership with its principle place of business in New York. The incident sued on occurred in New York. Neither party contests that New York cases are controlling; New York law therefore controls. See Stagl v. Delta Airlines, Inc., 52 F.3d 463, 467 (2d Cir.1995) (“Because both parties agree that New York cases are controlling, we shall assume that New York law governs this diversity action.”).
VI. International Law
The Montreal Convention preempts state law claims against international air carriers or their agents. TOGA is an agent of the air carriers it serves, since the actions it took were in service of the carriers’ contract of carriage — i.e., assisting them in completing its passengers’ journey. Because TOGA is the air carrier’s-agent, plaintiff can only recover to the extent permitted by the Convention.
Plaintiff alleges that the Convention permits her to recover for “bodily and emotional injury” and “pain and suffering for emotional injury” under Article 17, as well as for inconvenience and false imprisonment under Article 19. See Pl.’s Mem. of L. Addressing the Warsaw and Montreal Conventions in Response to the Court’s Request, Doc. Entry 39, Feb. 23, 2012; PL’s Injury Mem. 1. As pointed out below, these claims are without merit. Plaintiff cannot recover under Article 17, which only permits recovery for “bodily injuries” that occur on board aircraft, not the emotional harms she claims. Nor does Article 19 permit recovery for the non-economic harms claimed. As noted in Part I, while plaintiff now seeks to add claims for economic harm, these claims will not be considered because they are de minimis and were not sought in the complaint.
A. Montreal Convention Preempts Claims Against Carriers and Their Agents
The Montreal Convention, an international treaty to which the United States is a party, establishes a uniform system of liability for international air carriers. See generally Montreal Convention; see also Ehrlich v. American Airlines, 360 F.3d 366, 370-71 (2d Cir.2004). It applies to “all international carriage of persons, baggage, or cargo performed by aircraft for reward.” Montreal Convention art. 1. It is largely substantively unchanged from its predecessor treaty, the Warsaw Convention, and is construed using case law
The Convention’s limitations on liability extend to agents of the carrier. The Convention provides that:
If an action is brought against a servant or agent of the carrier arising out of damage to which the Convention relates, such servant or agent, if they prove that they acted within the scope of their employment, shall be entitled to avail themselves of the conditions and limits of liability which the carrier itself is entitled to invoke under this Convention.
Montreal Convention art. 30; see also id. art. 43 (“In relation to the carriage performed by the actual carrier, any servant or agent of that carrier or of the contracting carrier shall, if they prove that they acted within the scope of their employment, be entitled to avail themselves of the conditions and limits of liability which are applicable under this Convention to the carrier whose servant or agent they are, unless it is proved that they acted in a manner that prevents the limits of liability from being invoked in accordance with this Convention.”). Although the explicit language extending coverage to agents was an addition to the Montreal Convention, courts interpreting its predecessor treaty had extended its conditions and limits of liability to the agents and servants of the air carrier. See Reed v. Wiser, 555 F.2d 1079, 1089-93 (2d Cir.1977) (applying Warsaw Convention’s limitations to airline employees); Waxman v. C.I.S. Mexicana De Aviacion, S.A. De C.V., 13 F.Supp.2d 508, 514 (S.D.N.Y.1998) (finding an aircraft cleaning service to be acting in furtherance of the airline’s contract of carriage and therefore covered by the Warsaw Convention); In re Air Disaster at Lockerbie, Scotland on Dec. 21, 1988, 776 F.Supp. 710, 714 (E.D.N.Y.1