65 United Passengers Alleged Antisemitic Abuse — The Court Said Even If True, They Had No Case

Sixty five Jewish passengers who took United Airlines flight 90 from Newark to Tel Aviv on on April 22, 2023, in time for Israel’s Memorial Day and Independence Day, sued the carrier.

According to their complaint, about three hours into the flight an elderly man briefly sat in a flight attendant’s jump seat. United diverted the aircraft back to Newark. When passengers complainde, a flight attendant told them to blame the removed passenger and referred to him as “one of [them]” (the Jews).

Passengers were held on the aircraft at Newark for 3 hours, and they say requests for water were refused because supplies were low. (This surprises me – airlines carry emergecy supplies for long delays, and they had been in the air less than half the scheduled trip.)

Off the aircraft, it took United another 3 hours to provide hotel and meal vouchers. During this time, the plaintiffs claim staff made several antisemitic remarks. They sued over nonrefundable lodging losses, missed religious and family events, emotional distress, and some property loss or damage.

• This strikes me as bad service, and United handling the diversion and delay poorly, and not at all surprising from Newark-based crew and ground staff.

• But you don’t get to sue over this. That’s the interesting point here. No matter how abusive, because this was an international flight, unless there’s injury or death your suit probably isn’t going anywhere.

United got the case dismissed with prejudice. It was an international flight, so the Montreal Convention preempts state and federal claims even if the Convention itself does not provide any remedy or alternative.

And the injuries allowable for compensation under the Montreal Convention are limited to “bodily injury.” Claims of dehydration, hunger, thirst, insufficient food and water, and discomfort, were deemed not to be bodily injury uder the Montreal Convention. (United also made claim that this wasn’t an ‘accident’ triggering liability, but that was submitted to the court too late to be considered.)

In terms of losses from delay, the court held that the Montreal Convention does not cover emotional distress or humiliation.

So the court never ruled on the merits of the case – just that even if everything alleged is true, it doesn’t matter, and you cannot sue under federal or state law.

The Montreal Convention is a treaty that governs airline liability rules for international travel. It requires compensation for injuries and deaths. But when there’s neither instead of suing outside of the Montreal Convention you often can’t sue at all.

The treaty is often described as passenger-friendly because it imposes strict liability. There’s no need to show an airline’s intent or negligence in causing harm. However, it excludes many claims and also caps damages – perhaps too low. Where there’s lack of care, capped liabiltiy provides little incentive to change behavior.

• A four year old burned by 200-degree tea on United faces capped liability.

• A JetBlue passenger burned by dry ice given to them by a flight attendant faces capped liabiltiy.

I think this case should have been considered on the merits. And I don’t think the plaintiffs should have won – the way to deal with this is telling the world that, no matter what CEO Scott Kirby says, United is not actually all that premium and by giving you rbusiness to another airline.

While it was a terrible travel day, I’m not sure that’s a tort. But I don’t like a rule that says no matter how badly you’re treated if there’s no physical injury you’re out of luck (and then caps damages even if there is).