Mark Pestronk
Mark Pestronk

Q: I have been trying to explain to a client of my agency about why he cannot sue the airline for damages when his flight was delayed for so long that he missed an important business meeting and lost a major piece of business as a result. He is especially mad because the airline kept delaying his flight without any announcements, so he did not know what to expect. Which is the reason why he cannot sue: Is it "federal preemption," no "private right of action," a problem with the "conditions of carriage" or what? I find the quoted concepts very confusing.

A: I don't blame you for being confused. I imagine very few people, even very few lawyers, could explain these concepts and relate them to why your client cannot successfully sue the airline.

Federal preemption means that when it comes to an airline's "price, route or service," only the federal government is permitted to make or enforce the law. Conversely, states, including state courts and local governments, may not make or enforce any law dealing with an airline's price, route or service.

That's why no state legislature can enact an "airline passenger's bill of rights," as some states threaten to do from time to time. Only Congress or the DOT can do that.

Courts have interpreted the federal preemption rule to go further than Congress ever intended.

Under judicial precedents, consumers cannot even sue carriers under general consumer protection statutes.

In your client's case, this means that he could not sue the airline for misrepresenting its schedule or lying about its planned delays, even though these practices would enable him to sue if they were done by, say, a limousine service.

If the state consumer protection laws enabled him to receive damages for lost profits or treble damages for fraud against the limousine company, no court could assess such damages against an airline.

To make matters worse, although federal law does prohibit airlines from engaging in unfair practices such as misrepresentation, the courts have ruled that these federal laws do not give passengers any right to sue under them.

Only the DOT can enforce them, and there is no "private right of action;" i.e., no right to sue for their violation.

For example, federal law prohibits airlines from engaging in deceptive scheduling practices, but no passenger can sue for deceptive scheduling. So your client is stymied under both federal and state law.

The Supreme Court has carved out an exception to the federal preemption rule. A passenger can sue for breach of contract under state law if the airline's contract of carriage makes a promise that the carrier does not keep.

So is there a contract that the airline breached?

The contract of carriage binds both the passenger and the carrier to their terms. The problem is that these contracts make no promises about schedules. On the contrary, they state that schedules are not part of the contract and that the carrier has no responsibility for failing to adhere to its schedules.

So your client cannot sue under state law because of preemption, he cannot sue under federal law because there is no private right of action and he cannot sue for breach of contract because the conditions of carriage disclaim responsibility for schedules.

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