The United States Court of Appeals for the Fifth Circuit has handed down an important ruling in favor of two gay men who were the targets of a foul joke by employees of United Continental airlines. Baggage handlers removed a sex toy from the luggage of Christopher J. Bridgeman and Martin A. Borger, covered it with a brown greasy substance and taped it to the outside their bag. It was then sent on the baggage carousel in front of all of the passengers. What is most striking about this case is not only the refusal of United Continental to settle the case but the sweeping argument the airlines tried to make to strip passengers of the ability to seek damages for such outrageous and disturbing conduct by airlines.
Bridgeman and Borger were returning to the United States on a flight from Costa Rica to Norfolk, Virginia, with a layover at George Bush International Airport in Houston. They had to recheck their bags in Houston. It was at Norfolk that the bags were placed on the carousel. The sex toy had been removed from the bag and was taped to the top “covered in a greasy foul-smelling substance.”
The men sued for intentional infliction of emotional distress, invasion of privacy, and negligence. United tried to get the court to adopt an argument that passengers had no right to recover for damages even from such outrageous and insulting conduct. It relied on Article 17(1) or Article 17(2) of the Montreal Convention to say that such claims are preempted. The Montreal Convention is a multilateral treaty governing the rights and liabilities of passengers and carriers in international air transportation. United argued that Article 17 of the Montreal Convention only allows for damages for injuries to passengers (Article 17(1)) and for damage to baggage (Article 17(2)). Neither it claimed covered this injury. The court found that the convention did not apply under Article 17(1) because this injury was not suffered on the flight or as part of exiting or disembarking. Thus, it remained subject to state law. On Article 17(2), the court ruled:
The alleged misconduct in this case simply does not relate to any damage to Plaintiffs’ duffel bag, which they admit is “just fine” and undamaged; rather, Plaintiffs seek a remedy for the way in which their bag was utilized to inflict personal injury. Accordingly, we decline to shoehorn Plaintiffs’ claims into the substantive scope of Article 17(2) merely because a bag is central to their factual basis. Instead, we reach our conclusion based on a natural reading of Article 17(2)’s text
The claims are therefore not preempted by the convention.
United Continental in the meantime showed that, once again, airlines treat passengers as voiceless, rightless living luggage. If they had prevailed, passengers would have been barred from seeking relief in state courts for even the most egregious conduct by airline employees.