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Hunters sue Delta Airlines for refusing to transport “Big Five” trophies

Hunters sue Delta Airlines for refusing to transport “Big Five” trophies

Can an airline discriminate in what it chooses to carry?

In this week’s article, we examine the recent case of Conservation Force v. Delta Air Lines, Inc., 2016 WL 3166279 (N.D. Tex. 2016) in which interested parties including the Tanzania Hunting Operators Association challenge the decision of Delta Airlines, Inc. “To stop transporting trophies of lions, leopards, elephants, rhinoceroses and buffalo that have been legally hunted. These animals are commonly known as the ‘Big Five’. Plaintiffs include Corey Knowlton, described in the Complaint as a hunter-conservationist, as well as domestic and international groups allegedly involved in hunting, conservation and tourism”.

Terror Targets Update

Paris, France

In Rubin & Breeden, Women’s Emergence as Terrorists in France Points to Shift in ISIS Gender Roles, nytimes.com (10/1/2016) it was noted that “There was the parked car stuffed with gas canisters near the Notre Dame Cathedral, a possible effort to set off an explosion in the heart of Paris. There was the suspected plot to attack a train station in the Paris area. There was the effort by one of the Islamic State’s most prominent propagandists to recruit two young women in Nice, where an attacker had killed 86 people in July by running them down in a truck. In France, where terrorist threats have become distressingly commonplace, these three episodes, all in the last month, stood out for one reason in particular: Radicalized women were at the heart of each. It is not clear whether the phenomenon is a blip or the beginning of a trend in which women play a more active role in plotting and carrying out attacks on the West”.

New York, New York

In Nir, Men Who Found Bomb Were Following a New York Tradition, www.nytimes.com (10/2/2016) it was noted that “it was an odd story to the bombing in New York last month: Two passers-by spotted a bag on West 27th Street in Chelsea, opened it, removed the pressure cooker inside and took the bag with them. In doing do, the authorities have said, they may have defused a second bomb. The two men simply liked the bag they happened upon, according to officials for EgyptAir, where the men, who were visiting New York, worked as in-flight security guards. ‘You know, we see things left on the street in New York all the time’ one of the officials said. ‘Stuff no one wants. It’s normal to take them’”.


Malaga, Spain

In over 70 wounded in Spanish tourist resort city explosion, eturbonews.com (10/1/2016) it was noted that “More than 70 people have been injured, four seriously, in an explosion near the southern Spanish resort city of Malaga, officials say…The ferocious explosion took place outside La Bohemia café, in Montera Street…during a local annual Velez Day fair…It is not yet clear why the gas cylinder exploded”.

Ankara, Turkey

In a state of emergency in Turkey, extended for another 90 days, eturboews.com (10/3/2016) it was noted that “Turkey has extended for another three months a state of emergency imposed across the country after an abortive coup in mid-July…Turkey introduced the state of emergency on July 20, after it declared the end of a coup attempt by a group of military officers. More than 270 people were killed in incidents surrounding the July 15 coup attempt”.

Amusement Park Injuries

In Kabateck & Fang, Amusement Park Injuries: Can State Gov’ts Be Held Liable?, law360.com (10/3/2016) it was noted that “Amusement park safety is under the microscope after a series of recent accidents this past summer involving children killed or injured in thrill rides. The tragic incidents raise questions about the need for stronger national standards regulating the ride industry and highlighting the challenges plaintiffs face if they want to sue the government for damages. The high-profile accidents include a 10-year-old boy who was decapitated on Aug. 7, 2016, on the Verruckt raft ride at the Schlitterbahn water park in Kansas City, which is also known as the world’s tallest water slide”.

Burqas Banned In Bulgaria

In Bulgaria bans burqas in public places, eturbonews.com (10/1/2016) it was noted that “Bulgaria’s parliament has passed legislation that effectively bans burqas-veils which fully cover the face, worn by Muslin women in public-in a bid to step up security in the country following a series of terrorist attacks in Europe. The law…prohibits wearing in public clothing that partially or completely covers the face’…Those who fail to comply will face fines up to 1,500 leva (approx. $860) and be stripped of social privileges”.

Pickpockets In London

In Tourism Safety London Victoria Station, Oxford Circus and Liverpool Street: Hotspots from crime, eturbonews.com (10/3/2016) it was noted that “Compiling information and statistics from The Telegraph, Transport For London…reveals that King’s Cross St Pancras station is the worst spot for London tube station thefts. Between January 2015 and February 2016 alone, passengers reported 215 pickpocketing crimes”.

Juno Competes With Uber & Lyft

In Martin, Granting Shares for Fares: An Uber Rival’s Play for Drivers, nytimes.com it was noted that “So when she learned that Juno would take only 10 percent commission on her fares, as opposed to the at least 20 percent collected by Uber and Lyft, and that she would be able to receive tips through the Juno app, she signed up (Currently, Lyft allows tipping through its app, and Uber, which says tipping is optional, does not.) Another big draw for Ms. Boyan was Juno’s promise of equity ownership. Its founders set aside a pool of restricted stock for drivers that they say is equal to their own shares. This means that the more fares Ms. Boylan picks up, the more June shares she might be able to earn. Bonus shares go to drivers who pull in the most in fares”.

Green Taxi Drivers Seeing Red

In Flamn, Facing Uber and accessibility hurdles, green taxi operators are seeing red, crainsnewyork.com (9/26/2016) it was noted that “Apple-green boro taxis first rolled out in August of 2013…The first 6,000 permits sold out in months, fueled by visions of them rising in value like taxi medallions…Now boro taxis are in reverse…In July they were down 14% to 43,000-a two year low…By the end of 2015, Uber was averaging more than 45,000 daily trips on green cabs’ turf, to the green’s 52,000. But following Uber’s fare cut in January, its outer-borough ridership spiked more than 30%. It now has 48,000 New York drivers on tap”.



Cruise Passenger Drowns

In TSB: Cruise passenger’s unsafe behavior, intoxication led to person-overboard fatality, eturbonews.com eturbonews.com(9/29/2016) it was noted that “The Transportation Safety Board of Canada (TSB) determined that a passenger’s unsafe behavior and intoxication led to him falling overboard from the vessel Northern Spirit I in Toronto, Ontario, and subsequently drowning. The investigation also found that the crew’s emergency response efforts were not coordinated”.

Refugees Drown Near Egypt

In Egypt: 162 bodies recovered after boat sinking in the Mediterranean, eturbonews.com (9/23/2016) it was noted that “Egyptian rescue workers have pulled out from the Mediterranean Sea the bodies of more than a hundred refugees whose boat recently capsized near the coast of Egypt…while the military said it rescued 163 survivors, who are said to be mostly Egyptians”.

Check Your Intestine, Please

In Smale, Woman Who Took Husband’s Intestine on Flight Wanted it Tested, Lawyer Says, nytimes.com (9/27/2016) it was noted that “A Moroccan woman who took a piece of her dead husband’s intestine on a flight to their home in Austria was carrying the sample because she suspected that he had been poisoned and she wanted European doctors to examine it, her lawyer said of Tuesday. The woman, 35, who has not been publicly identified, packed the four-inch piece in her checked baggage on a flight to the southern Austrian city of Graz…Mr. Earner said his client had been acting on the advice of a doctor in Marrakesh who shared her suspicion that her husband had been poisoned at a meal the couple ate while visiting relatives”.

Air Rage Incidents Up

In Lowy, Air rage incidents reported by airlines on the rise, The Associated Press (9/28/2016) it was noted that “Incidents of unruly passengers on planes are increasing, and more effective deterrents are needed to tackle the problem, a global airline trade group said Wednesday. There were 10,854 air rage incidents reported by airlines worldwide last year, up from 9,316 incidents in 2014, according the International Air Transport Association…A majority of incidents involved verbal abuse, failure to follow crew instructions and other anti-social behavior. Eleven percent included physical aggression towards passengers or crew or damage to the plane”.

New EU Travel Directive Under Fire

In German Tourism Summit, Merkel hints at changes to package travel law, fvw.com (9/28/2016) it was noted that “The German government could be ready to adapt the controversial new package travel law following protests, chancellor Angela Merkel indicated to industry bosses this week. The current draft law to implement the new EU Package Travel Directive has come under fire from the travel industry in recent months, especially over fears that travel agents could be legally liable like tour operators if they sell two different travel products as one single booking…Merkel
said: ‘On the topic of the package travel directive, we have the situation on the small and medium-sized travel agents in our view…And, yes, we don’t want to confront the whole tourism industry’”.

Airbnb And The Rentals Of Doom

In Perlman, ‘Airbnb And The Rentals Of Doom’ Reported By NY Legislators, law.360.com (9/27/2016) it was noted that “Members of the New York State legislature issued a report that found dangerous conditions in some Airbnb rentals in New York City that advertise space for large numbers of guests and called for new laws to help crack down. The Independent Democratic Conference released a report titled ‘Tourist Tenements in the Making’ which analyzed Airbnb postings for New York City rentals that advertised accommodations for 13 guests or more. The report found 110 such apartments or homes being offered for rent on the site and said many of the hosts crammed extra beds into odd areas such as laundry rooms or kitchens, or even employed bunk beds and air mattresses, in order to fit than many people. ‘This truly is a case of Airbnb and the rentals of doom’, State Senator Jeff Klein…said in a statement Monday announcing the report. ‘It’s frightening to see listings where guests are offered dangerous accommodations that violate state and city housing codes’”.

Travel Law Article: Honoring Cecil The Lion

In the Conservation Force case the Court noted that “In July 2015, after a hunt in Zimbabwe resulted in the death of a lion named Cecil, prompting social media outrage, vandalism and threats to the hunter and his family, Delta announced it was changing its policy and would no longer transport Big Five trophies. Plaintiffs condemn Delta’s decision because, in their view, tourist safari hunting is a successful conservation strategy. According to Plaintiffs, such hunts protect at-risk wildlife, by providing revenue to local conservation and anti-poaching efforts. Plaintiffs further claim such hunts ‘incentivize locals to protect their wildlife as an asset-not to kill it as a nuisance, danger or black-market commodity’. Plaintiffs claims that Delta’s decision constitutes bad policy and violates the law. The Court is concerned only with the legality of Delta’s decision”.

Motion To Dismiss

“Plaintiffs seek monetary and injunctive relief. First, they claim that Delta’s embargo on the transport of Big Five trophies violates federal common law. Second, Plaintiffs assert, under state law, that the policy is a tortious interference with business relations. Third, Plaintiffs claim that Delta’s policy violates certain statutes and regulations. Delta moves to dismiss each claim, arguing that Plaintiffs’ Complaint fails to state a claim for breach of federal common law duties, that Plaintiffs’ tortious interference claim is preempted by the Airline Deregulation Act of 19768 and that no private right of action exists to enforce the federal statutes and regulations cited by the Plaintiffs”.

Federal Common Law Claim

“More than one hundred and fifty years ago, the (U.S.) Supreme Court held that common carriers are obligated to treat shippers equally…This equal treatment principle forbids a common carrier from refusing ‘to do for one [shipper] what which it was doing for others’…However, the Supreme Court also acknowledged that common carriers may refuse to carry particular kinds of cargo (citing B.J. Alan Co. v. I.C.C., 897 F. 2d 561, 563 (D.C. Cir 1990)(‘a common carrier is free to carve out as large or as small a niche as it feels appropriate’))”

No Discrimination Please

“…Common carriers are merely barred from ‘discrimination between persons’…a common carrier may discriminate in what it chooses to carry, but it may not discriminate as to the person for whom it carriers”…a common carrier is free, without violating federal common law, to carry only items of its choosing, provided that it does not discriminate among customers. Indeed, Plaintiffs’ contention that they have stated a claim because Delta ‘violates its duty of equal treatment by refusing to ship one type of trophy…by one type of shipper’ misapplies the equal treatment principle…Delta’s policy bans its shipment of Big Five trophies. Obviously, it does not ban the hunting of Big Five game. Such hunters are free to ship allowed cargo with Delta, including trophies of other game”.

Avoiding Adverse Publicity

“Although, because Plaintiffs are hunters and other parties who benefit from the hunting of the Big Five, Delta’s ban negatively affects them, that impact does not mean Delta’s decision is unlawful or actionable…Plaintiffs assert that Delta has not carved hunting trophies out of its market, because it continues to transport non-Big Five Trophies from Africa…That position is true, but it has no legal impact. Delta is free to hold itself as a carrier of some, but not all, hunting trophies, even if the justification for that decision is the avoidance of adverse publicity”.

Airline Deregulation Act

“Delta moves to dismiss Plaintiff’s tortious interference claim, arguing it is preempted by the Airline Deregulation Act of 1978 (ADA) (which) dismantled significant regulations of the airline industry…’To ensure that the states would not re-regulate what Congress had decided to de regulate, the Act incorporated a preemption provision’ (citing Taj Mahal Travel v. Delta Airlines, 164 F. 3d 186 (3d Cir. 1998)(rephrasing Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992)), prohibiting states from enacting any ‘law, regulation or other provision having the force and effect of law related to a price, route or service of an air carrier’”).

Plaintiffs’ Claims Preempted

“The Court concludes that…Plaintiffs’ claims here relate to airline services…Plaintiffs’ tortious interference claim in this case does relate to Delta’s services. (And) is not based on slanderous and defamatory comments by Delta. There is, in fact, no defamatory statement alleged. Delta merely altered the scope of its services by refusing to transport a designated kind of commodity – Big Five trophies. It never said the hunting or transport of such species was unlawful. The Fifth Circuit’s definition of service includes not only ‘baggage handling’, but also, ‘the transportation itself’ (citing Hodges v. Delta Airlines, Inc., 44 F. 3d 334, 335 (5th Cir. 1995)). Delta’s decision-a ban on its carrying Big Five trophies-is a refusal to provide transportation. The effort to impose liability for it doing so, under the guise of a tortious interference claim, runs afoul of the Airline Deregulation Act’s preemption clause”.

Regulatory Claims Rejected

“Plaintiffs claim that Delta violated 49 U.S.C. Section 41310(a) which prohibits air carriers from ‘subject[ing] a person, place, port or type of traffic in foreign air transportation to unreasonable discrimination’ and Section 44711(a)(4) which prohibits persons from ‘operat[ing] as an air carrier without an air carrier operating certificate or in violation of a term of the certificate’

Conclusion

“Delta argues, however that there is neither an express not an implied private right of action to enforce any of these provisions…The Court…concludes that…Congress did not intend for either Section 41310(a) and 44711(a)(4)…to create a private right of action…Because Plaintiffs have not stated a claim for which relief exists, the Court grants Delta’s Motion to Dismiss in its entirety”.

Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here.

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