21-1669 Badar v. Swissport USA, Inc. IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________
August Term, 2022
(Argued: September 29, 2022; Decided: November 17, 2022)
Docket No. 21-1669 ____________________
CHAUDHRY BADAR, ALIA DAVARIAR, MUHAMMAD S HAFQAT, BALQEES BADAR, BILAL BADAR,
Plaintiffs-Appellants,
v.
SWISSPORT USA, INC., PAKISTAN INTERNATIONAL AIRLINES,
Defendants-Cross Defendants-Appellees,
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY,
Defendant-Cross Claimant.
____________________
Before: JACOBS, BIANCO, and MENASHI, Circuit Judges.
Pakistan International Airlines (“PIA”) failed to transport the body of
Nauman Badar to Pakistan for burial due to a miscommunication by employees of Swissport USA, PIA’s cargo loading agent. Nauman Badar’s family members
sued PIA and Swissport in New York state court under state law; PIA removed
the action to the United States District Court for the Eastern District of New York
(Irizarry, J.). Following cross-motions for summary judgment and an evidentiary
hearing, the district court held that plaintiffs’ claims are preempted by the
Montreal Convention and dismissed the suit. On appeal, plaintiffs argue that the
Montreal Convention, which preempts state-law claims arising from delayed
cargo, does not apply because human remains are not “cargo” for purposes of
the Montreal Convention and because their particular claims are not for “delay.”
We AFFIRM.
ANNETTE G. HASAPIDIS, Hasapidis Law Offices, Ridgefield, CT (Jordan Merson, Merson Law, PLLC, New York, NY, on the brief), for Plaintiffs- Appellants. JOHN MAGGIO, Condon & Forsyth LLP, New York, NY, for Defendant- Appellee Pakistan International Airlines. GARTH AUBERT (Thomas Pantino, on the brief), Fitzpatrick & Hunt, Pagano, Aubert, LLP, New York, NY, for Defendant-Appellee Swissport USA, Inc. DENNIS JACOBS, Circuit Judge:
When Nauman Badar died, his family arranged for Pakistan International
Airlines (“PIA”) to transport his body to Pakistan for burial in his ancestral
home; but the body never made it onto the plane. After his remains were
located, Nauman was buried in Maryland. The plaintiffs in this suit--Nauman’s
parents, brothers, and sister--sued PIA and its cargo loader, Swissport USA, Inc.,
for damages under state law. The district court dismissed on the ground of
preemption by federal treaty: the Convention for the Unification of Certain Rules
for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106–45, 2242
U.N.T.S. 309 (the “Montreal Convention”).
The Montreal Convention sets forth a comprehensive liability regime
governing “international carriage of persons, baggage or cargo performed by
aircraft.” Montreal Convention art. 1(1). The Convention preempts other civil
claims within its scope. Id. art. 29. Among the injuries covered by the
Convention is “damage occasioned by delay in the carriage by air of . . . cargo.”
Id. art. 19. On appeal, plaintiffs argue that the Montreal Convention does not
apply because human remains are not “cargo” and because their claims arise
from complete non-performance rather than “delay”--and that the district court
1 erred in granting summary judgment after a limited (and flawed) evidentiary
hearing.
We affirm the judgment. Human remains are cargo for purposes of the
Montreal Convention; and on the facts found by the district court, the claims
arise from delay. The claims are therefore preempted by the Montreal
Convention.
I
Beginning in 1933, the liability of international air carriers has been
governed by international agreement rather than the local law of individual
nations. Over the years, the comprehensive system of liability created by the
Warsaw Convention (the Convention for the Unification of Certain Rules
Relating to International Transportation by Air1) fragmented into a “hodgepodge
of supplementary amendments and intercarrier agreements.” Ehrlich v. Am.
Airlines, Inc., 360 F.3d 366, 371 n.4 (2d Cir. 2004) (citation omitted). The result
was a “patchwork of liability regimes around the world.” Letter of Submittal, S.
Treaty Doc. No. 106-45, 1999 WL 33292734, at *6 (“Letter of Submittal”).
1 See Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876, reprinted in note following 49 U.S.C. § 40105.
2 In 1999, the International Civil Aviation Organization convened a
conference in Montreal to fix the Warsaw Convention and “creat[e] a
modernized uniform liability regime for international air transportation.” Id.;
accord Cohen v. Am. Airlines, Inc., 13 F.4th 240, 244 (2d Cir. 2021). The resulting
“Montreal Convention,” which entered into force on November 4, 2003, e.g.,
Ehrlich, 360 F.3d at 372, hews closely to the text of its predecessor; accordingly,
its “provisions may be analyzed in accordance with case law arising from
substantively similar provisions of its predecessor, the Warsaw Convention.”
Cohen, 13 F.4th at 245.
The Montreal Convention “applies to all international carriage of persons,
baggage or cargo performed by aircraft,” Montreal Convention art. 1(1), and
provides for passengers and shippers to recover for certain injuries, id. arts. 17–
19. As relevant here, the Convention provides that “[t]he carrier is liable for
damage occasioned by delay in the carriage by air of passengers, baggage or
cargo,” id. art. 19, but caps recovery for such damage to cargo at a specified “sum
of . . . Special Drawing Rights per kilogramme,”2 id. art. 22(3). The Convention
2 “Special Drawing Rights represent an artificial ‘basket’ currency developed by the International Monetary Fund for internal accounting purposes.” Letter of Transmittal, S. Treaty Doc. No. 106-45, 1999 WL 33292734, at *2. The current value of 3 does not, however, limit or preempt claims for total non-performance of a
contract of carriage: a bald refusal to transport or a repudiation of the carriage
contract is not “delay” for purposes of the Convention. See Wolgel v. Mexicana
Airlines, 821 F.2d 442, 444 (7th Cir. 1987); In re Nigeria Charter Flights Cont.
Litig., 520 F. Supp. 2d 447, 453 (E.D.N.Y. 2007); Paradis v. Ghana Airways Ltd.,
348 F. Supp. 2d 106, 113–14 (S.D.N.Y. 2004), aff’d, 194 F. App’x 5 (2d Cir. 2006).
To achieve a uniform liability regime, the Montreal Convention, like the
Warsaw Convention before it, preempts “all state law claims that fall within [its]
scope.” See Shah v. Pan Am. World Servs., Inc., 148 F.3d 84, 97–98 (2d Cir. 1998)
(cleaned up); see also Cohen, 13 F.4th at 245 (recognizing that when a plaintiff’s
“claims fall under the Montreal Convention, . . . any remedy must be had
pursuant to that Convention”). The self-executing Montreal Convention creates
a federal cause of action for claims within its scope. See Baah v. Virgin Atl.
Airways Ltd., 473 F. Supp. 2d 591, 593 (S.D.N.Y. 2007); see also S. Exec. Rep. No.
108–8, at 3 (2003) (“The Montreal Convention, like the Warsaw Convention, will
provide the basis for a private right of action in U.S. courts in matters covered by
one SDR is $1.31. International Monetary Fund, SDR Valuation (updated Nov. 15, 2022), https://www.imf.org/external/np/fin/data/rms_sdrv.aspx.
4 the Convention.”). That federal cause of action is the exclusive means for
pursuing such claims. “Where an action for damages falls within one of the
Montreal Convention’s three damage provisions, ‘the Convention provides the
sole cause of action under which a claimant may seek redress for his injuries.’”
Seagate Logistics, Inc. v. Angel Kiss, Inc., 699 F. Supp. 2d 499, 505 (E.D.N.Y. 2010)
(quoting Weiss v. El Al Isr. Airlines, Ltd., 433 F. Supp. 2d 361, 365 (S.D.N.Y.
2006)).
II
Nauman Badar died suddenly in his apartment in Astoria, Queens. J.A.
341–42. His family decided to bury his remains in Pakistan, their ancestral home.
E.g., J.A. 224–25, 314, 348–49, 1218. Accordingly, Nauman’s brother Bilal Badar
arranged for a funeral home, Muslim Funeral Services, to prepare the body for
burial and arrange carriage to Pakistan. J.A. 344–46. In accordance with Islamic
practice, the funeral home used no chemicals to preserve the body, which
necessitated burial as fast as possible. See J.A. 223–24, 279. Nauman died on
October 25, 2017; in consultation with Bilal, the funeral home arranged for
transport of the remains aboard Pakistan International Airlines Flight 712, a
5 direct flight from New York to Lahore departing October 28, 2017. J.A. 224, 1219.
Bilal purchased a ticket on the same flight. J.A. 1220.
On the day of departure, the funeral home delivered Nauman’s body to
JFK International Airport to be loaded onto Flight 712. J.A. 354. Bilal repeatedly
sought and received confirmation from PIA employees that Nauman’s body was
on the plane. J.A. 1220–21. However, due to a miscommunication among
Swissport’s cargo loaders, J.A. 744, the pallet containing Nauman’s body and the
body of one other individual was not on board when the plane took off, e.g., J.A.
1260.
When Flight 712 landed in Lahore, Bilal met several relatives to claim the
remains at PIA’s Lahore cargo office. J.A. 363–64, 1224. There, the family
learned that the body was not on the plane and that its whereabouts were
unknown. J.A. 1224–25. For the next several hours, Bilal “called every single
number [he] could find on the web” trying to discover what had happened to the
remains, but he was unable to reach anyone at PIA in New York or to locate his
brother’s body. J.A. 1241; see also J.A. 369, 1225. Around dawn in Lahore the
following day, a text message from the funeral home informed Bilal that
6 Nauman’s body had been located at JFK and that the funeral home had taken
custody of the body and placed it in cold storage. J.A. 1227–28.
The family debated what to do next and decided to bury Nauman in the
United States in order “[t]o get him to a final resting place as soon as possible.”
J.A. 378 (Bilal Dep.); see also J.A. 384. Bilal then booked seats for himself and his
brother and father on the next flight to New York. Back in the United States,
Bilal instructed the funeral home to transport Nauman’s body to a cemetery near
Bilal’s Maryland home, and the three men conducted a burial ceremony there on
November 1, 2017. J.A. 385–86, 1231.
This litigation began in October 2018: Nauman’s brothers Bilal Badar and
Muhammad Shafqat, his sister Alia Davariar, and his parents Chaudhry and
Balqees Badar filed suit in New York state court against PIA, Swissport, and the
Port Authority of New York and New Jersey. Notice of Removal ¶ 1, Badar v.
Swissport USA Inc., No. 18-6390 (E.D.N.Y. Nov. 9, 2018), Dkt. No. 1. They
alleged state-law claims arising from the failure to transport Nauman’s body on
PIA Flight 712, including loss of right of sepulcher, negligence, negligent
infliction of emotional distress, and breach of contract. Id., Ex. A. PIA, which is
majority-owned by the Pakistani government and therefore qualifies as a
7 “foreign state” under federal law, removed the suit to federal court pursuant to
28 U.S.C. § 1441(d). Id. ¶ 4. At no time have plaintiffs pled a claim under the
Montreal Convention.
After completion of discovery, plaintiffs voluntarily dismissed all claims
against the Port Authority. J.A. 9. The remaining defendants, PIA and
Swissport, moved for summary judgment on the ground of preemption under
the Montreal Convention. J.A. 141–61. Plaintiffs cross-moved for summary
judgment and to strike affirmative defenses, arguing that the Montreal
Convention does not apply because human remains are not “cargo” and because
their claims are for non-performance rather than “delay.” J.A. 791–803.
The district court denied both motions. Badar v. Swissport USA, Inc., 492
F. Supp. 3d 54 (E.D.N.Y. 2020). The court held that human remains are “cargo”
under the Montreal Convention, id. at 59–62, but concluded that “there is
insufficient evidence to enable [it] to decide,” id. at 65, whether plaintiffs’ claims
arose from delay or from non-performance because it was “unclear whether
Plaintiffs chose to secure substitute travel for the decedent’s remains or whether
Defendants offered alternate transportation for the remains,” id. at 63–64. Since
this issue was “a fact essential to determining the preemptive effect of Article 19
8 of the Montreal Convention,” the court ordered “an evidentiary hearing . . . to
develop the necessary facts to determine this threshold issue.” Id. at 64–65.
That hearing was conducted via video teleconference on February 10, 2021.
J.A. 16, 1197. Bilal Badar testified that “there was no communication from PIA”
and denied that PIA “ever offer[ed] [the family] an alternative when [his]
brother’s body was not initially transported to Pakistan,” J.A. 1232. His only
contact with PIA, Bilal testified, consisted of a brief phone call several days after
Nauman’s funeral. J.A. 1231–32; see also J.A. 387 (“I received a call from
[PIA] . . . . There was just [‘]I’m with PIA, this is what happened,[’] that’s pretty
much it.”).
PIA employee Paulette Cottone offered competing testimony that PIA
promptly offered to transport Nauman’s body to Pakistan on an Emirates flight
but that the Badar family declined. J.A. 1261. She based this testimony both on
her own “aware[ness] of everything that was going on” in PIA’s New York office
on the day in question, J.A. 1263, and on the fact that the family of the other
decedent left off Flight 712 received and accepted an offer of substitute
transportation, J.A. 1261, 1267, 1269. Defendants also argued that Ms. Cottone’s
testimony was consistent with an affidavit submitted by PIA employee Arbab
9 Hibatullah, J.A. 136–37, and with a contemporaneous email by Ms. Cottone’s
supervisor, Naseem Alavi, in which Mr. Alavi told a Swissport representative
that “[t]he bodies will now be transported to Pakistan by some other carrier,”
J.A. 742. See J.A. 1272–75.
The district court credited Ms. Cottone’s testimony while concluding that
plaintiffs’ “categorical[] den[ial] that PIA ever made an offer of alternative
transportation” was “not credible.” Badar v. Swissport USA, Inc., Civ. A. No. 18-
6390, 2021 WL 2382444, at *3 (E.D.N.Y. June 10, 2021). The email from Mr. Alavi
was cited as corroboration of Ms. Cottone’s testimony. Id. The evidentiary
hearing thus “provided sufficient evidence to conclude that PIA had offered
alternate transportation for Nauman Badar's remains.” Id.
On the basis of this factual finding, the district court held that PIA’s
conduct “did not constitute a complete nonperformance of contract because
Plaintiffs did not afford PIA an opportunity to transport the remains using
alternate transportation.” Id. at *4. Therefore, it concluded, the claims arise from
delay, such that “Article 19 of the Montreal Convention applies and preempts
Plaintiff[s’] breach of contract claim.” Id. The action was dismissed on June 10,
2021.
10 Plaintiffs timely appeal. J.A. 17. They argue that the Montreal Convention
does not apply because human remains are not “cargo” (see Section III), and
because their claims arose from non-performance (Section IV).
III
Whether the Montreal Convention applies to the international
transportation of human remains is a question of first impression in this Court.
The scope of the Montreal Convention is a matter of treaty interpretation,
which we review de novo. Fed. Republic of Nigeria v. VR Advisory Servs., Ltd.,
27 F.4th 136, 148 (2d Cir. 2022). “When interpreting a treaty, we begin with the
text of the treaty and the context in which the written words are used.” Cohen,
13 F.4th at 245 (quoting Ehrlich, 360 F.3d at 375). “The main task of any tribunal
which is asked to . . . interpret a treaty is to give effect to the expressed intention
of the parties, that is, their intention as expressed in the words used by them in
the light of the surrounding circumstances.” Mora v. New York, 524 F.3d 183,
193–94 (2d Cir. 2008) (internal quotation marks, citation, alterations, and
emphasis omitted). “Because a treaty ratified by the United States is not only the
law of this land but also an agreement among sovereign powers, [courts] have
traditionally considered as aids to its interpretation the negotiating and drafting
11 history . . . and the postratification understanding of the contracting parties.” El
Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167 (1999) (internal citation
omitted); accord Georges v. United Nations, 834 F.3d 88, 92–93 (2d Cir. 2016).
As the district court observed, “while the Montreal Convention itself does
not define ‘cargo,’ the term is generally defined to encompass any load conveyed
by a vessel.” Badar, 492 F. Supp. 3d at 62. Dictionary definitions confirm that
the fact of transportation is the essential quality of “cargo,” not any intrinsic
characteristic of that which is transported. See Cargo, Black’s Law Dictionary
(11th ed. 2019) (“Goods transported by a vessel, airplane, or vehicle”); Cargo,
Merriam-Webster’s Unabridged Dictionary (last accessed Nov. 15, 2022) (“the
lading or freight of a ship, airplane, or vehicle: the goods, merchandise, or
whatever is conveyed”); Cargo, Oxford English Dictionary (2d ed. 1989) (“the
freight or lading of a ship”).
Plaintiffs urge a narrower definition, that “cargo” refers only to
“commercial products” or other items to which society attaches no special
significance. See Appellants’ Br. at 27; Appellants’ Reply Br. at 7. But while raw
materials or commercial goods may be paradigmatic examples, the word cargo is
not so limited. It likewise applies to items invested with emotional, aesthetic,
12 cultural, or religious value. A corpse, which may be precious and venerated,
may still be deemed cargo when transported by air.
The designation of human remains as cargo should not be surprising to
carriers or consignors. The four major U.S. airlines ship human remains through
their cargo departments. 3 Nauman Badar’s body was to be loaded into the
plane’s cargo hold by a “cargo handling agent,” J.A. 547–48; Bilal Badar went to
the “cargo area to sign for and collect Nauman” in Lahore, J.A. 1224 (testimony of
Bilal Badar); and the transportation of the remains was arranged via air waybill,
a type of document used exclusively in the shipment of cargo. J.A. 138–39.
Plaintiffs assert that PIA “does not treat human remains as ordinary cargo,”
Appellant’s Br. at 29, but their main support is a statement from the airline’s
“Cargo Handling Manual,” J.A. 745.
An inclusive reading of “cargo” is especially appropriate here. Whereas
the Warsaw Convention referenced “passengers, baggage, and goods,” Warsaw
3 See American Airlines Cargo, Products, https://www.aacargo.com/ship/ products.html (last visited Nov. 15, 2022); Delta Cargo, Specialized Care, https://www.deltacargo.com/Cargo/catalog/products/specialized-care (last visited Nov. 15, 2022); United Cargo, TrustUA, https://www.unitedcargo.com/en/us/products/ trustua.html (last visited Nov. 15, 2022); Southwest Cargo, Human Remains, https://www.swacargo.com/swacargo_com_ui/learn/specialty-shipments/human- remains (last visited Nov. 15, 2022).
13 Convention art. 1(1) (emphasis added), the Montreal Convention uses the term
“cargo” (which, if anything, is more expansive),4 implying that the Montreal
Convention applies to more than commercial goods. 5 Interpreting “cargo” to
include human remains is also consistent with the purposes of the Convention.
Like the Warsaw Convention before it, the principal aim of the Montreal
Convention is “to achieve uniformity of rules governing claims arising from
international air transportation.” El Al Isr. Airlines, 525 U.S. at 169 (cleaned up;
internal quotation marks and citation omitted); accord Letter of Submittal at *9.
The Convention should therefore be read to avoid lacunae in coverage and
promote uniform rules of liability. See Onyeanusi, 952 F.2d at 793. Excluding
items “not readily viewed as [cargo],” Johnson, 834 F.2d at 723, would impair
that uniformity. The drafters of the Convention created a single exemption for
4 The English version of the Montreal Convention is an “authentic” text of the Convention, Montreal Convention, final clause, so courts may rely on the Convention’s English terms without recourse to any another language, e.g., Elmar Giemulla, Final Clause, in Montreal Convention at Final Clause-1 (Elmar Giemulla & Ronald Schmid eds., 2017). Cf. Vienna Convention on the Law of Treaties art. 33(1), May 23, 1969, 1155 U.N.T.S. 331 (“When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language . . . .”). The Court therefore need not interpret “cargo” to match the (slightly different) word used in the French text: “marchandises.” 5 Even prior to the adoption of the term ‘cargo’ in the Montreal Convention, the Third and Ninth Circuits had held that human remains qualified as ‘goods’ under the Warsaw Convention. See Johnson v. Am. Airlines, Inc., 834 F.2d 721, 723 (9th Cir. 1987); Onyeanusi v. Pan Am., 952 F.2d 788, 791–93 (3d Cir. 1992).
14 objects otherwise classifiable as cargo: “postal items.” See Montreal Convention
art. 2. Courts should not create more.
Finally, plaintiffs observe that Article 22’s limitations on liability are
calculated based on the weight of the “cargo,” and they argue that weight-based
liability for human remains would produce an “absurd result in conflict with
society’s mores.” Appellants’ Br. at 38; see also Christopher Ogolla, Death Be
Not Strange: The Montreal Convention’s Mislabeling of Human Remains as
Cargo and Its Near Unbreakable Liability Limits, 124 Dick. L. Rev. 53, 89–90
(2019) (making a similar argument). In this particular situation, valuation based
on weight may be insensitive, macabre, or even opposed to our better nature, but
it is not absurd: the Convention itself mitigates any potential absurdity. Article
22’s weight-based limitation is a default rule, and consignors and carriers may
opt out: the default cap does not apply if the consignor “has made . . . a special
declaration of interest in delivery at destination and has paid a supplementary
sum if the case so requires,” in which event “the carrier will be liable to pay a
sum not exceeding the declared sum.” Montreal Convention art. 22(3). It is “an
exceptionally rare occurrence” for “the text [to] produce[] a manifestly absurd
result.” In re Dubroff, 119 F.3d 75, 76 (2d Cir. 1997). This is not such a case.
15 We hold that human remains are properly considered “cargo” for
purposes of the Montreal Convention and that the Convention therefore applies
to the international transportation of human remains by air.
IV
Plaintiffs’ second argument is that their claims are outside the ambit of the
Montreal Convention because they arise from non-performance rather than
“delay.” Following an evidentiary hearing, the district court found that plaintiffs
did not accept PIA’s offer to belatedly transport Nauman Badar’s body to
Pakistan, concluded that plaintiffs’ claims arise from delay, and held that they
are therefore preempted. We affirm both the district court’s factual finding and
its analysis.
A
At the outset, plaintiffs challenge the district court’s decision to conduct an
evidentiary hearing and make findings of fact following denial of the parties’
summary judgment motions. But plaintiffs had sufficient notice that an
evidentiary hearing (rather than a bench trial) would be used to “develop the
necessary facts” and to “determine this threshold [preemption] issue,” Badar, 492
F. Supp. 3d at 65; they did not object to that course of action, J.A. 1160–62, 1181.
16 Accordingly, we review only for plain error. E.g., Pescatore v. Pan Am. World
Airways, Inc., 97 F.3d 1, 18 (2d Cir. 1996).
“On plain error review, this court will only grant relief if there was (1)
error, (2) that is plain, (3) that affects substantial rights, and (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.”
Yukos Cap. S.A.R.L. v. Feldman, 977 F.3d 216, 237 (2d Cir. 2020) (internal
quotation marks and citation omitted); cf. Fed. R. Civ. P. 61 (“At every stage of
the proceeding, the court must disregard all errors and defects that do not affect
any party’s substantial rights.”). Even if it be error to make factual findings
regarding preemption in the context of an evidentiary hearing (rather than a
formal bench trial), and even if such an error was plain, plaintiffs cannot show
any effect on their substantial rights. As plaintiffs concede, if we were to
remand, it would still be the district judge, not a jury, that would decide the
facts. See Appellant’s Br. at 16 n.3; 28 U.S.C. § 1441(d) (“Upon removal [by a
foreign state] the action shall be tried by the court without jury.”). And although
plaintiffs have identified several omitted formalities, Appellants’ Reply Br. at 2–
3, nothing suggests that the district court would make a different finding after a
17 full bench trial. Plaintiffs therefore cannot show plain error in procedure, and we
move on to their substantive challenges.
B
When a district court resolves a factual dispute in the course of
determining a legal issue, this Court reviews factual findings for clear error and
legal conclusions de novo. See, e.g., Fisher v. Aetna Life Ins. Co., 32 F.4th 124,
135 (2d Cir. 2022) (contract formation); Daou v. BLC Bank, S.A.L., 42 F.4th 120,
133 (2d Cir. 2022) (foreign sovereign immunity); Tapia v. BLCH 3rd Ave LLC,
906 F.3d 58, 61 (2d Cir. 2018) (“employer” status under the FLSA); In re Initial
Pub. Offerings Sec. Litig., 471 F.3d 24, 40–41 (2d Cir. 2006) (Rule 23 criteria for
class certification). “A finding of fact is clearly erroneous when[,] although there
is evidence to support it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed.” Fisher, 32
F.4th at 136 (internal quotation marks and citation omitted). “[W]here there are
two permissible views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.” Mango v. BuzzFeed, Inc., 970 F.3d 167, 170 (2d Cir.
2020) (quoting United States v. Williams, 943 F.3d 606, 610 (2d Cir. 2019)). An
appellate court owes particular deference to credibility determinations: “[W]hen
18 a trial judge’s finding is based on his decision to credit the testimony of one of
two or more witnesses, each of whom has told a coherent and facially plausible
story that is not contradicted by extrinsic evidence, that finding, if not internally
inconsistent, can virtually never be clear error.” Anderson v. City of Bessemer,
470 U.S. 564, 575 (1985); see also Fed. R. Civ. P. 52(a)(6) (“[T]he reviewing court
must give due regard to the trial court’s opportunity to judge the witnesses’
credibility.”).
The disputed factual finding--that PIA offered plaintiffs alternate
transportation for the remains--was not clear error. Although Bilal Badar
“categorically den[ied] that PIA ever made an offer of alternative
transportation,” Badar, 2021 WL 2382444, at *3; see J.A. 1232, the district court
deemed this denial “not credible,” 2021 WL 2382444, at *3. Instead, the court
credited the testimony of Paulette Cottone, an employee at PIA’s JFK office, who
testified that PIA promptly offered to transport the body to Pakistan, via an
Emirates flight. Id.; see J.A. 1261. Ms. Cottone relied heavily on the fact that PIA
made this offer with respect to the other body left on the tarmac: “It’s not
possible [that PIA offered alternate transport to the other family but not the
Badars.] . . . PIA would not behave that way. . . . [W]e would not make an offer to
19 one and not the other.” J.A. 1269; accord J.A. 1267; see also J.A. 137 (affidavit of
Arbab Hibatullah) (“Alternative travel arrangements were made by PIA to
transport the remains of the other deceased party to Pakistan the next day.”).
Plaintiffs argue that the district court should have excluded Ms. Cottone’s
testimony, which they characterize as hearsay. See Appellants’ Br. at 21–23, 25,
40–42. However, Ms. Cottone’s testimony was corroborated in important
respects by other evidence. 6 And rejection of alternative transport to Pakistan is
consistent with plaintiffs’ desire “[t]o get [Nauman] to a final resting place as
soon as possible.” J.A. 378 (Bilal Dep.). In any event, plaintiffs failed to make a
hearsay objection at the evidentiary hearing (notwithstanding that counsel
6 In a message to PIA staff in Lahore on October 30, PIA employee Arbab Hibatullah stated that “[w]e are in contact with Mr. Bilal[, b]rother of Nauman Badar . . . and informed [him] that [the b]odies have been transferred to [Muslim Funeral Services] who . . . will now book [transportation] on any other carrier’s first available [flight]. Both the families accepted this and are also in contact with [Muslim Funeral Services].” J.A. 736. Later that day, Naseem Alavi, PIA’s U.S. country manager, J.A. 742, wrote that he had “personally contacted families of both [decedents] and informed them about the situation. They agreed with the arrangements and are also in communication with [the] Funeral Home.” J.A. 729. And in an email cited by the district court, Mr. Alavi told a Swissport manager that “[t]he bodies will now be transported to Pakistan by some other carrier.” J.A. 742. Finally, Ms. Cottone’s testimony aligns with Mr. Hibatullah’s affidavit, which stated that he had been “informed that the Badar family decided not to transport decedent’s remains to Pakistan, but rather intended to have a burial in the United States.” J.A. 137.
20 interposed such objections at other points).7 Instead, plaintiffs’ counsel elected to
attack Ms. Cottone’s testimony on cross-examination. See J.A. 1264–66. Our
review of the admissibility of Ms. Cottone’s testimony is therefore limited to
plain error. E.g., United States v. Miller, 954 F.3d 551, 562 (2d Cir. 2020).
Though framed as hearsay, the thrust of the argument is that the witness
lacked personal knowledge. Ms. Cottone testified that she “did the clerical
preparation of everything for [Flight 712],” J.A. 1259, and that she “was aware of
everything that was going on” due to her position as secretary to Mr. Alavi,
PIA’s country manager at JFK, J.A. 1263–64. This testimony does not
demonstrate direct, personal knowledge of PIA’s offer to the Badars. But
whether or not it was error to receive Ms. Cottone’s testimony, and even if such
error was plain, the failure to exclude her testimony sua sponte did not affect
plaintiffs’ substantial rights given the corroborating evidence, nor did it
“seriously affect[] the fairness, integrity, or public reputation of judicial
7 Plaintiffs did object below, but only on the ground that Ms. Cottone “was not identified on defendants’ Rule 26a disclosures, nor in their interrogatory responses as a witness with knowledge in this case.” J.A. 1181. Obviously, this is not an objection to hearsay; moreover, plaintiffs only made it on the eve of the hearing, leading the district court to overrule it as “waived and untimely.” J.A. 15 (Minute Order, Jan. 27, 2021).
21 proceedings.” Yukos Cap., 977 F.3d at 237 (internal quotation marks and citation
omitted).
Having thus rejected the procedural challenge (as not plain error), we
conclude that the district court’s finding itself was not clear error. The inference
Ms. Cottone drew from the other evidence in the record--that PIA offered
transportation to the Badars because it did so to the other affected family--is a
strong one; it was not unreasonable for the district court to adopt it. See Palazzo
ex rel. Delmage v. Corio, 232 F.3d 38, 44 (2d Cir. 2000) (“Decisions as to . . . which
of competing inferences to draw are entirely within the province of the trier of
fact.”) (citing Anderson, 470 U.S. at 573–75). The district court’s finding was not
clear error.
C
Given this finding, we conclude that plaintiffs’ claims are for “damage
occasioned by delay in the carriage by air of . . . cargo.” Montreal Convention
art. 19. As several district courts in this Circuit have held, a passenger or shipper
who refuses an offer of delayed transportation, or who makes alternative
arrangements, may not assert a claim for complete non-performance. E.g.,
Vumbaca v. Terminal One Grp. Ass’n L.P., 859 F. Supp. 2d 343, 366 (E.D.N.Y.
22 2012) (Weinstein, J.) (“Article 19 applies . . . [when a passenger] books an
alternative flight without affording the airline an opportunity to perform its
obligations[.]”); In re Nigeria Charter Flights Cont. Litig., 520 F. Supp. 2d 447,
453–54 (E.D.N.Y. 2007) (Dearie, J.) (“In some [cases found to arise from
delay] . . . . plaintiffs either secured alternate transportation without waiting to
find out whether the defendant airlines would transport them or refused an offer
of a later flight.” (internal citations omitted)). One may not “convert a mere
delay into contractual non-performance by choosing to obtain [alternative]
conveyance.” Paradis v. Ghana Airways Ltd., 348 F. Supp. 2d 106, 112–14
(S.D.N.Y. 2004) (Stein, J.) (collecting cases “refus[ing] to allow recovery for
breach of contract when plaintiffs responded to delays . . . by booking alternative
flights”), aff’d, 194 F. App’x 5 (2d Cir. 2006). Plaintiffs appear to concede as
much. Appellants’ Br. at 39 (“[I]f [PIA] had made the offer [of alternative
transportation], then the Convention preempt[s] Plaintiffs’ claims.”).
The air waybill in this case required PIA only to “complete the [c]arriage
with reasonable dispatch,” J.A. 759; that obligation had not been breached at the
time the Badars decided to bury Nauman in the United States. See Paradis, 348
F. Supp. 2d at 112 (noting that an airline which had offered replacement
23 transportation one week later “had not failed to perform its contract obligations”
because the plaintiff’s ticket required the airline only to “carry the passenger and
baggage with reasonable dispatch”). It was plaintiffs who cut off PIA’s ability to
perform under the terms of the waybill. That decision was understandable given
the need to bury Nauman quickly, and it cannot be doubted that plaintiffs found
themselves in a hard situation. But their only recourse against PIA and
Swissport was a claim under the Montreal Convention, a claim which they have
consistently declined to assert.
* * *
We AFFIRM the district court’s judgment dismissing plaintiffs’ claims as
preempted by the Montreal Convention.