BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

)

Michael Gurevich and Elena Gurevich )

)

-v. ) DOT OST-2012-0040

)

Compagnia Aereas Italiana, S.p.A. )

)

Formal Third Party Complaint under )

14 CFR 302.404 )

)

ANSWER OF ALITALIA-COMPAGNIA AEREA ITALIANA, S.p.A.

Communications with respect to this document should be addressed to:

Eugene F. Massamillo Richard A. Walker

Lawrence Mentz Kaplan, Massamillo & Andrews, LLC

Kaplan, Massamillo & Andrews, LLC 200 West Madison Street - 16 Floor th

70 East 55 Street - 25 Floor Chicago, Illinois 0606 th th

New York, New York 10022 Tel: 312-345-3000

Tel: 212-922-0450 Fax: 312-345-3019

Fax: 212_922-0530 rwalker@kmalawfirm.com

emassamillo@kmalawfirm.com

lmentz@kmalawfirm.com

Richard D. Mathias

Zuckert Scoutt & Rasenberger, L.L.P.

888 Seventeenth Street, N.W.

Suite 700

Washington, D.C. 20006

(202) 298-8660 Telephone

rdmathias@zsrlaw.com

Counsel for Compagnia Aerea Italiana, S.p.A.

April 20, 2012
Answer of Alitalia - Page ii 

TABLE OF CONTENTS

INTRODUCTION............................................................................................................. 1

POINT I. ............................................................................................................................ 6

ALITALIA’S TARIFFS FILED PURSUANT TO DOT ORDER ARE

EFFECTIVE UNTIL SUSPENDED, REJECTED OR CANCELLED........... 6

A. Alitalia was Required to File Tariff Rule 55, Entitled

“Liability of Carriers” by DOT Order. .................................................. 6

B. No Approval by DOT is Required for a Filed Tariff to

Become Effective. ...................................................................................... 8

POINT II.......................................................................................................................... 10

ANY TECHNICAL FAILURE TO COMPLY WITH THE TARIFF

POSTING REGULATIONS CANNOT RETROACTIVELY

INVALIDATE A FILED TARIFF. ................................................................... 10

POINT III. ....................................................................................................................... 12

ALITALIA MUST, AND DOES, COMPLY WITH LAWS AND

REGULATIONS APPLICABLE TO AIR TRANSPORTATION TO

AND FROM THE UNITED STATES, REGARDLESS OF

WHETHER OR NOT ITS CONDITIONS OF CARRIAGE APPLY

TO SUCH TRANSPORTATION...................................................................... 12

POINT IV. ....................................................................................................................... 13

APART FROM PETITIONERS’ FORMAL COMPLAINT,

ALITALIA IS NOT AWARE OF ANY PASSENGER COMPLAINTS

THAT THEY WERE MISLED......................................................................... 13

POINT V.......................................................................................................................... 15

RULE 55(B)(3) OF ALITALIA’S FILED TARIFF CANNOT BE

CONSTRUED TO PERMIT APPLICATION OF ALITALIA’S

GENERAL CONDITIONS OF CARRIAGE TO PETITIONERS................ 15

CONCLUSION. .............................................................................................................. 19
BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

)

Michael Gurevich and Elena Gurevich )

)

-v. ) DOT OST-2012-0040

)

Compagnia Aerea Italiana, S.p.A. )

)

Formal Third Party Complaint under )

14 CFR 302.404 )

)

ANSWER OF ALITALIA-COMPAGNIA AEREA ITALIANA, S.p.A.

Alitalia-Compagnia Aerea Italiana, S.p.A. (“Alitalia”) hereby responds to the Third

Party Complaint, dated March 15, 2012 (hereinafter “Formal Complaint”), filed by Michael

Gurevich and Elena Gurevich (“Petitioners”), pursuant to 14 C.F.R. § 302.405(a).1

INTRODUCTION

Petitioners’ Formal Complaint is part of a continuing effort to hold Alitalia and other

airlines liable for millions of dollars in damages for an alleged failure to voluntarily provide 2

 The document filed by Petitioners is styled a “Third Party Complaint.” Because the 1

term “third party complaint” was previously used in the context of enforcement

proceedings and was replaced by the term “formal complaint,” Alitalia is responding

pursuant to the Rules Applicable to Enforcement Proceedings, Subpart D of the

Department’s Rules of Practice in Proceedings. See Rules of Practice in Proceedings, 65

Fed. Reg. 6446, 6448 (Feb. 9, 2000) (“The term ‘third-party complaint’ used throughout

[the Department’s procedural rules] is being replaced with ‘formal complaint’”).

 The web site of counsel for Petitioners requests that passengers contact them about their 2

“investigation of cancelled and/or delayed international flights.” 

http://www.carneywilliams.com/current/EuropeanFlightCancellationDelay.php. See

Giannopoulos v. Iberia Lineas Aereas de Espana, No. 11-775 (N.D. Ill., filed Feb. 3,

2011); Polinovsky v. British Airways PLC, No. 11-779 (N.D. Ill., filed Feb. 3, 2011);

Polinovsky v. Deutsche Lufthansa AG, No. 11-780 (N.D. Ill., filed Apr 12, 2011);

Volodarsky v. Delta Airlines, No. 11-782 (N.D. Ill., filed Feb 3, 2011).
Answer of Alitalia - Page 2

compensation of €600 to every Alitalia passenger residing in the United States whose

Alitalia flight was cancelled within 14 days of its scheduled departure or was delayed for

more than 3 hours. No law or regulation in effect in the United States mandates that Alitalia

voluntarily provide such compensation.3

Petitioners, originally as plaintiffs in a putative class action, previously filed a

complaint asserting a single claim for breach of contract in the United States District Court

for the Northern District of Illinois, Gurevich v. Compagnia Aereas Italiana, SPA, d/b/a

Alitalia Airlines, No. 11-1890 (N.D. Ill., Mar. 30, 2011) (hereinafter “Gurevich v. Alitalia”

or “Gurevich”), copy attached as Exhibit 6 to Formal Complaint. In their complaint

Petitioners relied upon a regulation adopted by the European Union, EU 261, which, inter

alia, provides for certain specified compensation in circumstances including when a flight

to or from an airport in the European Union is cancelled less than 14 days in advance or (as

the result of a European court decision) when such a flight is delayed for more than 3 hours. 4

In Gurevich Petitioners essentially sought to have the courts in this country give the

European regulation extraterritorial effect. Petitioners claimed that EU 261 was applicable

to their flights on Alitalia because a portion of the European regulation is referred to in

 There is no DOT regulation mandating that passengers must be paid in the event of the 3

cancellation of a flight or a delay of more than 3 hours. The only DOT regulation that

mandates a payment to passengers is for denied boarding compensation pursuant to 14

C.F.R. Part 250. Separately, DOT enforcement policy requires carriers to provide ticket

refunds upon request to passengers who wish to cancel their trip as a result of a flight

cancellation or significant schedule change made by the carrier. DOT Notice (Sep. 25,

2001).

 Sturgeon v. Condor Flugdienst GmbH, 2009 E.C.R. I-10923 (Nov. 19, 2009). 

4
Answer of Alitalia - Page 3

Alitalia’s General Conditions of Carriage and that Alitalia breached its contract when it

failed to voluntarily pay passengers the €600 specified by EU 261. 

Alitalia, however, had adopted the system in effect for decades in the United States

under the auspices of both the Civil Aeronautics Board (“CAB”) and the Department of

Transportation (the “Department” or “DOT”): tariffs required to be filed with the DOT

govern the passenger-airline relationship and an airline’s conditions of carriage do not apply

to flights to or from the United States or to or from Canada. Accordingly, Alitalia filed the

tariffs required to be filed pursuant to DOT Order, including Rule 55(B), which provides, 5

in pertinent part, as follows:

(B) LAWS AND PROVISIONS APPLICABLE

(1) (A) THE CARRIER SHALL AVAIL ITSELF OF THE 

LIMITATION OF LIABILITY PROVIDED IN THE

CONVENTION FOR THE UNIFICATION OF CERTAIN

RULES RELATING TO INTERNATIONAL CARRIAGE

BY AIR, SIGNED AT WARSAW, OCTOBER 12 , 1929, TH

OR THE PROTOCOL SIGNED AT THE HAGUE,

SEPTEMBER 28 , 1955. HOWEVER, IN ACCORDANCE TH

WITH ARTICLE 221(1) OF SAID CONVENTION, OR

SAID PROTOCOL, THE CARRIER AGREES THAT, AS

TOALLINTERNATIONALTRANSPORTATIONBYTHE

CARRIER AS DEFINED IN THE SAID CONVENTIONOR

SAID PROTOCOLAS AMENDED BY SAID PROTOCOL,

WHICH, ACCORDING TO THE CONTRACT OF

CARRIAGE, INCLUDES A POINT IN THE UNITED

STATE OF AMERICA AS A POINT OF ORIGIN, POINT

OF DESTINATION, OR AGREED STOPPING PLACE.

****

(J) FOR THE PURPOSE OF INTERNATIONAL

CARRIAGE GOVERNED BY THE MONTREAL

CONVENTION, THE LIABILITY RULES SET OUT IN

THE MONTREAL CONVENTION ARE FULLY

 Notice of Exemption from the Department’s Tariff-Filing Requirements, DOT Docket 5

OST 1997-2050 (Oct. 7, 1999) (hereinafter “Notice of Exemption”), attached hereto as

Exhibit 1.
Answer of Alitalia - Page 4

INCORPORATED HEREIN AND SHALL SUPERSEDE

AND PREVAIL OVER ANY PROVISIONS OF THIS

TARIFFWHICHMAYBEINCONSISTENT WITH THOSE

RULES.

****

(3) TO THE EXTENT NOT IN CONFLICT WITH THE

PROVISIONS OF PARAGRAPH (1)...ABOVE, ALL CARRIAGE

HEREUNDER AND OTHER SERVICES PERFORMEDBYEACH

CARRIER ARE SUBJECT TO:

(A) APPLICABLE LAWS (INCLUDING NATIONAL

LAWS IMPLEMENTING THE CONVENTION OR

EXTENDING THE RULES OF THE CONVENTION TO

CARRIAGE WHICH IS NOT "INTERNATIONAL

CARRIAGE" AS DEFINED IN THE CONVENTION),

GOVERNMENT REGULATIONS, ORDERS AND

REQUIREMENTS;

(B) PROVISIONS SET FORTH IN THE PASSENGER'S

TICKET;

 (C) APPLICABLE TARIFFS;

(D) EXCEPT IN TRANSPORTATION BETWEEN A

PLACE IN THE UNITED STATES AND ANY PLACE

OUTSIDE THEREOF AND ALSO BETWEEN A PLACE

IN CANADA AND ANY PLACE OUTSIDE THEREOF,

CONDITIONS OF CARRIAGE, REGULATIONS AND

TIMETABLES (BUT NOT THE TIMES OF DEPARTURE

AND ARRIVAL THEREIN SPECIFIED) OF CARRIER,

WHICH MAY BE INSPECTED AT ANY OF ITS OFFICES

AND AT AIRPORTS FROM WHICH IT OPERATES

REGULAR SERVICES.

Exhibit 9 to Formal Complaint, Certified Copy of International Passenger Governing Rules

(“IPRG”) Tariff Rules 1, 5 and 55, filed on behalf of Alitalia-Compagnia Aerea Italiana with

the U.S. Department of Transportation in effect on April 27, 2011, at 28-30; see Exhibit 8

to Formal Complaint, Certified Copy of International Passenger Governing Rules (“IPRG”)

Tariff Rules 1, 5 and 55, filed on behalf of Alitalia-Compagnia Aerea Italiana with the U.S.

Department of Transportation in effect on March 18, 2009, at 28-30.

The language of Rule 55 is not new. It is virtually identical to language that has

appeared for decades in airline conditions of contract. Attached hereto as Exhibit 2 are
Answer of Alitalia - Page 5

copies of portions of tickets issued by Air Canada (2001), American Airlines (1983), British

Airways (1990), Eastern Airlines (1984), Japan Airlines (1983), KLM Royal Dutch Airlines

(1989), Singapore Airlines (1983), Trans World Airlines (1983) and USAir (1985), each of

which has Conditions of Contract. Paragraphs 2 and 3 of those Conditions provides as 6

follows:

(2) Carriage hereunder is subject to the rules and limitations

relating to liability established by the Warsaw Convention unless

such carriage is not “International Transportation” as defined by that

Convention.

(3) To the extent not in conflict with the foregoing carriage and

other services performed by each carrier are subject to: (i) provisions

contained in this ticket, (ii) applicable tariffs, (iii) carrier’s conditions

of carriage and related regulations which are made a part hereof (and

are available on application at the offices of carrier), except in

transportation between a place in the United States or Canada and

any place outside thereof to which tariffs in force in those countries

apply.

In Gurevich, Judge Sharon Johnson Coleman recognized that Rule 55(B)(3) of

Alitalia’s filed tariff by its own terms precluded application of Alitalia’s General Conditions

of Carriage to Petitioner’s breach of contract claim. Exhibit 12 to Formal Complaint,

Gurevich v. Alitalia, slip op. at 3 (N.D. Ill., Jan. 17, 2012) (“The clear impact of the tariff

is that the conditions upon which the plaintiffs base their contract claim did not apply to their

tickets”). Petitioners argued, however, that Alitalia’s filed tariffs were inapplicable because

Alitalia did not post its tariffs pursuant to 14 C.F.R. § 221.100. The Court construed that

argument as challenging the validity of Alitalia’s tariff and, therefore, dismissed the action

 On the Air Canada ticket, the Conditions of Contract are in the French language. The 6

British Airways ticket has language added to the end of Paragraph 2 as follows: “For

carriage wholly within the UK the provisions of the Carriage by Air Act 1961 and Orders

made thereunder apply.”
Answer of Alitalia - Page 6

without prejudice and gave Petitioners the option of challenging the validity of the tariff

before the Department.

Since a tariff’s acceptance by the Department of Transportation

creates a presumption of its validity here, this court concludes that,

as an initial matter, the tariff relied upon by Alitalia must be held to

defeat the plaintiffs’ claims, and Alitalia’s motion to dismiss is

therefore granted. However, the dismissal is without prejudice to

their right to file an amended complaint which either follows a ruling

invalidating the tariff or asserts a cause of action that avoids its

impact.

Id. at 4. Petitioners, consequently, filed the Formal Complaint.

I

ALITALIA’S TARIFFS FILED PURSUANT TO DOT ORDER ARE

EFFECTIVE UNTIL SUSPENDED, REJECTED OR CANCELLED

A. Alitalia was Required to File Tariff Rule 55, Entitled “Liability of

Carriers” by DOT Order. 

In accord with the almost three-decade long regulatory trend implementing

deregulation and pursuant to its authority to exempt air carriers and foreign air carriers from

tarifffiling requirements (49 U.S.C. § 40109(c)), in 1999 the Department issued a regulation

generally exempting airlines from filing fares tariffs applicable to foreign air transportation

in open skies markets, except as otherwise required by the DOT. See 14 C.F.R. § 293.10.

Although the Department also considered exempting carriers from all tariff filing

requirements for international passenger transportation when proposing 14 C.F.R. Part 293

in 1997, the DOT always retained the authority to require such filings under statute, 49 7

 Exemption from Passenger Tariff-Filing Requirements in Certain Instances, Notice of 7

Proposed Rulemaking, 62 Fed. Reg. 10,758, 10,761 (March 10, 1997) (hereinafter

“Notice of Proposed Rulemaking”) (“For these reasons, we tentatively conclude that

general rules material setting forth general conditions of carriage should not be filed in

official tariffs by carriers”) (emphasis added).
Answer of Alitalia - Page 7

U.S.C. § 41504. Upon actually adopting the final exemption regulation in 1999, the DOT

explained:

the Department is exempting U.S. and foreign air carriers from the

statutory and regulatory duty to file international passenger tariffs

with DOT in certain instances, subject to the reimposition of the

duty in specific cases when consistent with the public interest.

Exemptions from Passenger Tariff-Filing Requirements in Certain Instances, Final Rule, 64

Fed. Reg. 40,654 (July 27, 1999) (hereinafter “Final Rule”) (emphasis added).

Consistent with the newly adopted exemption regulations, 14 C.F.R. § 293.10(e)-(f),

and the expressed DOT intent in the Final Rule, DOT subsequently issued a Notice of

Exemption specifying which passenger rules tariffs still needed to be filed in the public

interest:

Under the final rule, carriers are also exempted from the duty to file

rules tariffs containing general conditions of carriage, except for

those rules which we have determined should continue to be filed for

public interest reasons. . . . The descriptions of those rules. . .that are

to continue to be filed for public interest reasons are set forth in

Attachment B.

Notice of Exemption, Exhibit 1, at 1-2.

The Notice of Exemption states that “Governing rules that carriers are required to

continue to file for approval are listed in Part B. These rules will continue to be part of the

official tariffs....” Notice of Exemption, Exhibit 1, at 8. Part B lists the rules tariffs that are

continued to be filed, in pertinent part, as follows:

Part B. Rules to continue to be filed in official tariffs.

* * * *

B. Section I - General Rules:

1. Application of Tariff- - generally Rule 5.

* * * *

4. Definitions- - generally Rule 1.

5. Liability of Carriers- - generally Rule 55.
Answer of Alitalia - Page 8

* * * *

Notice of Exemption, Exhibit 1, at 10.

Alitalia filed those required tariff rules and relied upon the provisions of Rule 55 in

Gurevich.

B. No Approval by DOT is Required for a Filed Tariff to Become Effective. 

Petitioners here attempt to avoid the effect of Rule 55 by claiming that, because of

DOT inaction, Rule 55 was not approved and in the absence of approval the tariff is not

effective. See Formal Complaint at 10-12. Alitalia is not aware of any procedural mechanism

for obtaining DOT “approval” of a tariff or any regulation or decision that DOT inaction

with respect to a tariff filing renders the tariff ineffective. The only legal or regulatory

requirement for a tariff to become effective is that it be filed with the appropriate federal

agency and not be suspended, rejected or cancelled by that agency. The “filed tariff” doctrine

has long been recognized by the DOT and its predecessor the CAB.

Briefly, that doctrine states that fares or rates in a tariff which is

effective on any given day are the lawful fares or rates for that day,

no matter what an agency or court might ultimately decide about the

lawfulness of the fares. The regulated business may in general

operate at those fares or rates without a contingent obligation to make

refunds should lawful fares ultimately turn out to be lower.

SIFL, Common-Fares Recalculation, 92 C.A.B. 899, 905 (1981). It is also a principle long

recognized by the courts. See St. Paul Ins. Co. v. Venezuelan Int’l Airways, Inc., 807 F.2d

1543, 1548 (8th Cir. 1987) (“validly filed tariffs . . . [have] the force and effect of a statute

and binds both the carrier and the shipper with the force of law”); Vogelsgang v. Delta Air

Lines, Inc., 302 F.2d 709, 712 (2d Cir. 1962) (“the same rule has been applied to tariffs of

air carriers filed with the Civil Aeronautics Board”); Panzer v. Cont’l Airlines, Inc., 398 F.
Answer of Alitalia - Page 9

Supp. 2d 529, 531-32 (S.D. Miss. 2005) (“[t]ariffs that are validly filed with the DOT are

considered binding law between an airline and its passengers”); Ill. Produce Int’l, Inc. v.

Reliance Ins. Co., 388 F. Supp. 29, 35 (N.D. Ill. 1975) (Flying Tiger’s tariff “governing the

carriage of cargo applicable between points in the United States and points in Asia . . . [has]

the full force and effect of law as provided by 49 U.S.C. § 1373 [predecessor to 49 U.S.C.

§ 41504]”).

Lack of formal approval or DOT inaction does not prevent application of the filed

rate doctrine. Rather, in orderto invalidate a filed tariffthere are certain procedural steps that

must be followed to cancel, suspend or reject a filed tariff.

Pursuant to statute, the DOT has the ability to suspend, cancel or reject tariffs for

foreign air transportation. 49 U.S.C. § 41509. After a hearing the Secretary may decide

whether an existing or newly filed tariff is lawful, 49 U.S.C.A. § 41509(a)(1), and pending

such a hearing the Secretary may suspend an existing or newly filed tariff. 49 U.S.C.A. §

41509(b). With or without a hearing, the Secretary may cancel or reject an existing or newly

filed tariff. 49 U.S.C. § 41509(a)(2). No hearing has been held by the Secretary and no order

has been issued suspending, cancelling or rejecting Alitalia’s filed tariff Rule 55.

Moreover, even if the DOT did decide to suspend or cancel Alitalia’s filed tariffRule

55, Alitalia would be entitled to file a tariff rule dealing with Liability of Carriers that is in

effect for any other air carrier. 49 U.S.C.A. § 41509(c)(3). Upon information and belief,

however, numerous air carriers and foreign air carriers have filed tariffs that are

substantively equivalent to Rule 55 and the DOT would be required to suspend or cancel

those equivalent tariff rules of other carriers in order to prevent Alitalia from re-filing a tariff

Rule 55 that is identical in substance to what is in Alitalia’s currently filed Rule 55.
Answer of Alitalia - Page 10

If Petitioners’ argument is accepted then all tariffs filed with, but not approved by,

the DOT are ineffective. Any such result would be inconsistent with the provisions of 49

U.S.C.A. § 41509 and the Notice of Exemption. Moreover, such a result would not only be

a surprise to carriers filing tariffs but also overturn decades of CAB and DOT precedent and

a century of court cases upholding the filed rate doctrine involving numerous regulated

industries. Petitioners argument should be rejected in all respects.

II

ANY TECHNICAL FAILURE TO COMPLY WITH THE

TARIFF POSTING REGULATIONS CANNOT

RETROACTIVELY INVALIDATE A FILED TARIFF

Alitalia acknowledges that its General Conditions of Carriage and its website did not

contain any reference to its filed tariff. It now does. Prior to filing this Answer, Alitalia

inserted a conspicuous Notice to preceding its General Conditions of Contract, which

provides:

NOTICE

THE PROVISIONS ON THE PASSENGER’S TICKET AND

CONDITIONS OF CARRIAGE ARE APPLICABLE UNLESS

INCONSISTENT WITH OUR TARIFFS OR APPLICABLE LAW, IN

WHICH EVENT SUCH TARIFFS OR LAW SHALL PREVAIL.

Copy of page attached hereto as Exhibit 3. 

The Notice language is virtually identical to the notices or conditions of other airlines

that their conditions of carriage are not applicable to transportation to or from the United

States or Canada. See, e.g., American Airlines Conditions of Carriage at 1; Delta Conditions

of Contract ¶ 3; Lufthansa Conditions of Carriage ¶ 2.4; SAS Conditions of Carriage ¶ 2.4;

Swiss Conditions of Carriage ¶ 2.5; U. S. Airways Conditions of Contract, ¶ 3; Virgin
Answer of Alitalia - Page 11

Atlantic Conditions of Carriage ¶ 2.4.1, attached hereto as Exhibit 4. Such Notice eliminates

any claim that Alitalia continues to mislead its customers, as alleged in the Formal

Complaint. 

Alitalia is not aware of any DOT regulation that renders a filed tariff ineffective or

specifies that a filed tariff cannot be relied upon by a carrier if the tariff posting requirements

are not met, as argued by Petitioners. This is in sharp contrast to the regulations applicable

to terms incorporated by reference. By regulation, a carrier may not rely upon terms

incorporated by reference unless notice has been provided to the passenger. 14 C.F.R. §

253.4(a) (“an air carrier may not claim the benefit as against the passenger of, and the

passenger shall not be bound by, any contract term incorporated by reference if notice of the

term has not been provided to that passenger in accordance with this part”). No similar or

equivalent provision is applicable to filed tariffs. Accepting Petitioners’ argument, therefore,

would effectively result in a rulemaking without complying with the requirements of the

Administrative Procedure Act, 5 U.S.C. § 553. That argument should, consequently, be

rejected.

Providing the indicated Notice will serve as an appropriate stopgap measure to reflect

the applicability of Alitalia’s filed tariffs until Alitalia has an opportunity to amend in a

considered manner its Conditions of Carriage and eliminate Petitioners inappropriate effort

to collect millions of dollars from carriers based upon a European regulation that is not

applicable in the United States. In Polinovsky v. British Airways, No. 11-779 (N.D. Ill., Mar.

30, 2012) (decision dismissing complaint with prejudice), the court dismissed the putative

class action brought by plaintiffs (who were also represented by counsel for the Petitioners

here) because British Airways’ Conditions of Carriage made no reference to EU 261. The
Answer of Alitalia - Page 12

court said:

There is no question that BA’s Conditions of Carriage do not

expressly incorporate EU 261 and no provision of the contract ever

mentions this regulation. Unlike the plaintiffs in Lineas Aereas de

España, the Polinovsky Plaintiffs have not and cannot identify any

provisions in BA’s Conditions of Carriage explicitly providing that

BA “agreed to pay compensation as established in EU 261.” 2011

WL 3166159 at *3 (emphasis in original).

Polinovsky, slip op. at 5 (citation in original), copy attached as Exhibit 5. Alitalia

respectfully suggests that it should have the opportunity to modify its General Conditions

of Carriage to take the Polinovsky decision into account.

III

ALITALIA MUST, AND DOES, COMPLY WITH LAWS AND

REGULATIONS APPLICABLE TO AIR TRANSPORTATION

TO AND FROM THE UNITED STATES, REGARDLESS OF

WHETHER OR NOT ITS CONDITIONS OF CARRIAGE

APPLY TO SUCH TRANSPORTATION

Alitalia’s tariffRule 55 is explicit and provides that transportation to which the tariff

applies is governed by applicable national laws and regulations.

ALL CARRIAGE HEREUNDER AND OTHER SERVICES

PERFORMED BY EACH CARRIER ARE SUBJECT TO:

(A) APPLICABLE LAWS (INCLUDING NATIONAL

LAWS IMPLEMENTING THE CONVENTION OR

EXTENDING THE RULES OF THE CONVENTION TO

CARRIAGE WHICH IS NOT "INTERNATIONAL

CARRIAGE" AS DEFINED IN THE CONVENTION),

GOVERNMENT REGULATIONS, ORDERS AND

REQUIREMENTS

Exhibit 9 to Formal Compliant at 30. 

In the United States applicable governmental regulations regarding the treatment of

passengers are extensive and include, inter alia, denied boarding compensation (14 C.F.R.

Part 250), the disclosure of code share information (14 C.F.R. Part 257), the adoption of and
Answer of Alitalia - Page 13

adherence to a contingency plan for lengthy tarmac delays (14 C.F.R. § 259.4), the

disclosure of change of gauge (14 C.F.R. Part 258), the adoption of and adherence to a

customer service plan (14 C.F.R. § 259.5), the processing of consumer refunds (14 C.F.R.

Part 374), and the accommodation of passengers with disabilities (14 C.F.R. Part 382). In

addition, Alitalia is required to and does comply with DOT’s various enforcement policies

relating to the statutory prohibition against unfair and deceptive practices adopted pursuant

to 49 U.S.C. § 41712. Those policies are reflected in 14 C.F.R. Part 399, various consent

orders and industry notices and concern, inter alia, misrepresentations regarding confirmed

space on flights, price advertising and opt-out provisions, required notices for baggage

charges and other fees, the application of uniform baggage allowances and fees across a

passenger’s journey, and the imposition of (and disclosure of conditions in connection with)

price increases.

The statutory and regulatory requirements summarized above apply to Alitalia, even

where its General Conditions of Carriage are not applicable to particular transportation. And

no tariff can, and Alitalia’s tariff Rule 55 does not purport to, excuse a carrier from

complying with them.

As a consequence, whether or not any carrier’s conditions of carriage are applicable

to transportation between a place in the United States and any place outside thereof is

immaterial to the question of whether passengers will receive the benefit of protections

mandated by the DOT.

IV

APART FROM PETITIONERS’ FORMAL COMPLAINT,

ALITALIA IS NOT AWARE OF ANY PASSENGER COMPLAINTS

THAT THEY WERE MISLED
Answer of Alitalia - Page 14

The practical effect of applying filed tariff Rule 55 to Petitioners’ transportation is

to render the material on Alitalia’s web site, including the General Conditions of Carriage,

equivalent to a customer service plan that is not required to be incorporated into the

passenger’s contract of carriage and is not contractually binding upon Alitalia in the context

of a private right of action. See Enhancing Airline Passenger Protections 76 Fed. Reg. 23110,

23131 (Apr. 25, 2011) (“the Department has decided not to adopt the proposal requiringU.S.

and foreign carriers to include their contingency plans and customer service plans in their

contracts of carriage”). Nevertheless, apart from not voluntarily providing compensation to

passengers under EU 261, Alitalia abides by the terms of its General Conditions of Carriage

and customer service plan.

When an Alitalia flight is cancelled or a flight is delayed for any substantial period

of time, Alitalia makes every effort to accommodate its passengers in accordance with

applicable DOT regulations and beyond. Alitalia reprotects its passengers on other Alitalia

flights and, when appropriate, on flights of other airlines. If necessary and appropriate,

Alitalia will provide, or reimburse its passengers for, meals and hotel accommodations to

ameliorate the interruption in a passenger’s travel plans. 

The service Alitalia provides to its customers is apparently satisfactory in view of the

fact that Alitalia is not aware of any informal complaints to the DOT by passengers with

respect to the cancellation or delay of Alitalia flights or complaining that Alitalia does not

abide by its General Conditions of Carriage or customer service plan. From a practical

standpoint, there is no reason to believe that the technical failure to comply with the

regulatory posting requirements has adversely affected any significant number of Alitalia’s

passengers.
Answer of Alitalia - Page 15

Contrary to what Petitioners would have the DOT conclude, passengers are not

without remedy under the tariff. Rule 55(C)(1) of Alitalia’s filed tariff provides, in pertinent

part, as follows:

CARRIER IS NOT LIABLE FOR ANY DEATH, INJURY,

DELAY, LOSS, OR OTHER DAMAGE OF WHATSOEVER

NATURE (HEREINAFTER IN THIS TARIFF COLLECTIVELY

REFERRED TO AS "DAMAGE") TO PASSENGERS OR

UNCHECKED BAGGAGE ARISING OUT OF OR IN

CONNECTION WITH CARRIAGE OR OTHER SERVICES

PERFORMED BYCARRIER INCIDENTALTHERETO, UNLESS

SUCH DAMAGE IS CAUSED BY THE NEGLIGENCE OF

CARRIER.

Rule 55(C)(1) (emphasis added), Exhibit 8 to Formal Complaint at 31; Exhibit 9 to Formal

Complaint at 30-31. Thus in those rare instances where the applicable international

convention does not provide a remedy for passengers, Rule 55(C)(1) of Alitalia’s filed tariff

provides a mean for passengers to recover provable damages. 

8

V

RULE 55(B)(3) OF ALITALIA’S FILED TARIFF CANNOT BE

CONSTRUED TO PERMIT APPLICATION OF ALITALIA’S

GENERAL CONDITIONS OF CARRIAGE TO PETITIONERS

In their final argument Petitioners seek to avoid the effect of Rule 55(B)(3)(D) by

requesting that the DOT somehow construe the rule consistently with Alitalia’s General

Conditions of Carriage. That argument, however, requires that the DOT ignore the plain

 Petitioners, however, are apparently not satisfied with this potential remedy.

8

Presumably that dissatisfaction stems from the likelihood they would not be able to

pursue a class action claim based on negligence and individualized proof of actual,

compensatory damages. See, e.g., Cruz v. American Airlines, Inc., 356 F.3d 320, 331

(D.C. Cir. 2004) (affirming district court’s refusal to certify class of passengers claiming

damages for lost luggage because “the class members’ damages claims presented

individualized issues not common to all class members.”).
Answer of Alitalia - Page 16

meaning of the language of the tariff: language that has been understood for decades to

reflect that tariffs governed the passenger-airline relationship in the United States and

Canada while an airline’s conditions of carriage are applicable elsewhere. See Exhibits 2 and

4. And any interpretation by the DOT has to take into consideration that the identical tariff

language has been filed with the Canadian Transportation Administration. Thus, any

interpretation of the tariff language that departs from the plain meaning of the language

could very well result in an inconsistent understanding and application of the same tariff

language between the U.S. and Canada.

Rule 55(B)(3)(D) in unequivocal terms states that Alitalia’s conditions of carriage

do not apply to Petitioners’ transportation. There is no way to avoid a literal reading of that

straightforward language. Clearly, Judge Coleman in Gurevich agreed. If she thought

otherwise there would be no reason for her to have referred the tariff to the DOT to

determine its validity because doing so would be unnecessary. Petitioners’ argument that the

DOT should ignore a literal reading of the language and the interpretation placed upon it by

Judge Coleman should be rejected in all respects.

Petitioners’ argument that Alitalia’s tariff Rule 55(B)(3)(B) somehow reinstates the

conditions of carriage would also require ignoring the primacy of the tariff language over

contractual provisions. It is well-settled that a tariff filed with the applicable regulatory

agency has the force and effect of law. AT&T v. Cent. Office Tel., Inc., 524 U.S. 214, 222

(1998) (telecommunications; “the century-old ‘filed rate doctrine,’ associated with the ICA

[Interstate Commerce Act] tariff provisions [under which ‘the rate of the carrier duly filed

is the only lawful charge’] applies to the Communications Act as well”); Lowden v.

Simonds-Shields-Lonsdale Grain Co., 306 U.S. 516, 520 (1939) (railroads; “Until changed,
Answer of Alitalia - Page 17

tariffs bind both carriers and shippers with the force of law”). For example, in Dreamscape

Design, Inc. v. Affinity Network, Inc., 414 F.3d 665 (7th Cir. 2005), plaintiffs brought a

putative class action against Affinity, a telephone communications carrier, alleging that

Affinity violated the Illinois Consumer Fraud Act by advertising one rate for long-distance

calls and billing for another, higher rate. Affinity moved to dismiss, arguing that plaintiffs’

claims were preempted by federal law because Affinity had charged the rate listed in its

tariff filed with the Federal Communications Commission. Id. at 668. The Seventh Circuit

recognized that “courts may not award relief (whether in the form of damages or restitution)

that would have the effect of imposing any rate other than that reflected in the filed tariff”

and therefore affirmed the trial court’s dismissal. Id. at 669. The court also noted that

“[a]lthough it may be tempting to view a filed tariff as simply another contract enforceable

under state law, this court and others have recognized that tariffs are something more-at least

the equivalent of federal regulations or law . . . .” Id. at 668-69. In other words, “[n]o private

agreement can displace a tariff’s terms.” Metro E. Center for Conditioning & Health v.

Qwest Communications Int’l, Inc., 294 F.3d 924, 925 (7th Cir. 2002). 

The regulatory scheme regarding tariffs for foreign air carriers, such as Alitalia, is

virtually identical to the tariff regime of the Federal Communications Act, 47 U.S.C. § 203,

and the former tariff scheme of the Interstate Commerce Act, 49 U.S.C. § 10762 (1994)

(repealed 1995). As prescribed by statute, a foreign air carrier, like a telecommunications

provider or other type of common carrier, is required to file with the appropriate commission

(here, the Secretary of Transportation), publish and keep open to the public tariffs that

prescribe the actor’s prices and other information as required. Compare 49 U.S.C. § 41504

(foreign air transportation) with 49 U.S.C. § 10762(a)(1) (repealed 1995) (interstate
Answer of Alitalia - Page 18

transportation) and 47 U.S.C. § 203(a) (telecommunications). In fact, the language of 49

U.S.C. § 41504(a) is nearly identical to the language contained in the Federal

Communications Act’s tariffscheme, 47 U.S.C. § 203(a) and is identical in substance to the

language contained in the Interstate Commerce Act’s former tariff scheme, 49 U.S.C. §

10762(a)(1)-(2) (repealed 1995). In addition, a foreign air carrier, like a telecommunications

carrier or another common carrier prior to repeal, is not permitted to deviate from their filed

tariffs. Compare 49 U.S.C. § 41510(a), with Interstate Commerce Act, 49 U.S.C. § 10761(a)

(repealed 1995), and Federal Communications Act, 47 U.S.C. § 203(c). The pertinent

language forbidding deviation in each respective regime is also remarkably similar. 

Accordingly, filed tariffs take precedence over contrary provisions of any conditions

of contract or conditions of carriage. E.g., Denby v. Seaboard World Airlines, Inc., 737 F.2d

172, 186 (2d Cir. 1984) (“any argument of plaintiff on the basis of paragraph 10 of the air

waybill would indeed be foreclosed, since it is common ground that in the event of conflict

between the air waybill and the tariff, the latter prevails”). As emphasized by the Seventh

Circuit, “[t]his is so even if a carrier intentionally misrepresents its rate and a customer

relies on the misrepresentation.” Dreamscape Design, Inc. v. Affinity Network, Inc., 414 F.3d

at 669. Petitioners’ arguments with respect to the conditions appearing on a ticket, therefore,

should be rejected in all respects.
Answer of Alitalia - Page 19 

CONCLUSION 

The Notice of Exemption requires that Alitalia and other canies file a rules tariff 

dealing with "Liability of Carriers." Alitalia complied with its obligation to do so using 

language in use for decades and which, upon information and belief, is still used by 

numerous air carriers and foreign air caniers. Alitalia has begun taking the steps necessary 

to avoid any confusion on the part of passengers as to whether or not Alitalia's conditions 

of caniage apply, as a matter of contract, to their transportation to or from the United States 

or Canada. Petitioners' Formal Complaint should be dismissed. 14 C.F.R. § 302.406(a)(2). 

Dated: New York, New York 

April20, 2012 

Respectfully submitted, 

Lawre ce Mentz, Esq. 

Kaplan, Massamillo & Andrews, L. 

70 East 55th Street 

25th Floor 

New York, New York 10022 

(212) 991-5919 Telephone 

lmentz@kmalawfinn.com 

Richard D. Mathias, Esq. 

Zucke1i Scoutt & Rasenberger, L.L.P. 

888 Seventeenth Street, N.W. 

Suite 700 

Washington, D.C. 20006 

(202) 298-8660 Telephone 

rdmathias@zsrlaw .com 

Counsel for Compagnia Aerea Italiana, S.p.A. 
VERIFICATION 

Pursuant to Title 18 United States Code Section 1001, I, Lawrence Mentz, in my individual 

capacity and as the authorized representative of the pleader, have not in any manner knowingly 

and willfully falsified, concealed or failed to disclose any material fact or made any false, 

fictitious, or fraudulent statement or knowingly used any documents which contain such 

statements in connection with the preparation, filing or prosecution ofthe pleading. I understand 

that an individual who is found to have violated the provisions of 18 U.S.C. section 1001 shall be 

fined or imprisoned not more than five years, or both. 

Dated: April20, 2012 

Lawr ce Mentz, Esq. 

Kaplan, Massamillo & Andrews, L. 

70 East 55th Street 

25th Floor 

New York, New York 10022 

(212) 991-5919 Telephone 

lmentz@kmalawfinn.com 
CERTIFICATE OF SERVICE

I hereby certify that I caused a copy of the foregoing Answer of Alitalia-Compagnia Aerea

Italiana, S.p.A., to be served on the following parties, by electronic mail, on this the 20th day of 

April, 2012.

Hank Bates, Esq.

Counsel for Complainants

Carney Williams Bates Pulliam & Bowman, P.L.L.C.

hbates@carneywilliams.com

Samuel Podberesky, Esq.

Assistant General Counsel for

Aviation Enforcement & Proceedings

U.S. Department of Transportation

sam.podberesky@dot.gov

Dayton Lehman, Jr., Esq.

Principal Deputy Assistant General Counsel for

Aviation Enforcement & Proceedings

U.S. Department of Transportation

dayton.lehman@dot.gov

Blane Workie, Esq.

Deputy Assistant General Counsel for

Aviation Enforcement & Proceedings

U.S. Department of Transportation

blane.workie@dot.gov

Jonathan Dols, Esq.

Chief, Consumer Protection and Licensing Branch

U.S. Department of Transportation

jonathan.dols@dot.gov

Nicholas Lowry, Esq.

Senior Trial Attorney

Office of Aviation Enforcement and Proceedings

U.S. Department of Transportation

nick.lowry@dot.gov

_____________

Jonathon Foglia
Gurevich v. Alitalia DOT OST-2012-0040

INDEX OF EXHIBITS

I Notice of Exemption from the Department’s Tariff-Filing Requirements, DOT Docket

OST 1997-2050 (Oct. 7, 1999)

II Airline Ticket Conditions of Contract

III Alitalia General Conditions of Carriage Page 1 - with Notice (Apr. 20, 2012)

IV Airline Web Site Conditions of Contract

V Polinovsky v. British Airways, No. 11-779 (N.D. Ill., Mar. 30, 2012) 
EXHIBIT 1 
Case: 1: 11-cv-01890 Document#: 15-2 Filed: 06/07/11 Page 2 of 13 Pagel D #: 185 

Posted 10/7/99 

2:30 p.m. 

Served: October 12, 1999 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

NOTICE OF EXEMPTION FROM THE 

DEPARTMENT'S TARIFF-FILING REQUIREMENTS 

DOCKET OST-97-2050 - I 'f 

Issued by the Department of Transportation 

on the 7th day of October, 1~99 

The Department issued a final rule on July 21, 1999 exempting U.S. and foreign carriers 

from the statutory and regulatory duty to file international passenger tariffs with the 

Department provided certain conditions set forth in 14 CFR part 293 are met.l/ Under the 

new rule, the Assistant Secretary for Aviation . and International Affairs is to issue an initial 

notice specifying tariff-filing exemptions for markets that fall into Category A (no fare 

filing, except by carriers of Category C countries), Category B (filing "normal" one-way 

economy-class fares only, except that carriers of Category C countries must file all fares) or 

Category C (filing of all fares by all carriers), taking into account specific factors present in 

each market. The Assistant Secretary may also require carriers of countries in Categories A 

or B to continue to file passenger tariffs for services they offer between the U.S. and any 

third countries if effective price leadership opportunities for U.S. carriers are not available 

between the foreign carrier's home country and third countries.Y 

In this initial notice issued under 14 CFR 293, the Assistant Secretary has determined the 

tariff-filing requirements for each market as set forth in Attachment A to this notice, taking 

into account the four specific factors set forth in 14 CFR 293.10 (a)(2)(i) through (iv).l/ 

After this initial determination, the Assistant Secretary may issue subsequent notices 

transferring countries between categories. 

Under the final rule, carriers are also exempted from the duty to file rules tariffs containing 

general conditions of carriage, except for those rules which we have determined should 

continue to be filed for public interest reasons. Rules tariffs include such general subjects 

as currency of fares, electronic surveillance of passengers and baggage, capacity limitations, 

denied boarding compensation, and other matters of general application to international air 

transportation. 

This notice also includes a description of those rules containing general conditions of 

carriage that will no longer be required or permitted to be filed. The descriptions of 

those rules that are no longer to be filed as well as of those rules that are to 

1/ See 64 Fed Reg 40654, July 27, 1999. 

2:_1 We discussed the factors we would consider in both the NPRM (62 Fed Reg 10758, 760-

762, March 10, 1997) and the Final Rule (64 Fed Reg 40654, 655-657, July 27, 1999). 

')_/ Any differences in the status of those markets specifically enumerated as illustrative in 

the NPRM from what is now shown in Attachment A reflect our most recent evaluation of 

their attributes using the applicable criteria. 
Case: 1 :11-cv-01890 Document#: 15-2 Filed: 06/07/11 Page 3 of 13 PageiD #:186 

-2-

continue to be filed for public interest reasons are set forth in Attachment B. After this 

initial determination, authority for determining what governing rules carriers must file is 

delegated to the Director of the Office of International Aviation, who will continue to refine 

these descriptidns as necessary. 

Finally, in order to clarify the carriers' obligations regarding Warsaw Convention liability, 

the Department's requirements regarding Warsaw notice and tariff filing requirements are 

set forth in Attachment C. 

This notice will become effective on October 7, 1999, at which time the 180-day phaseout period set forth in 14 CFR 293.22(a) will begin. 

By the Department of Transportation: 

(SEAL) 

A. BRADLEY MIMS 

Acting Assistant Secretary for Aviation 

and International Affairs 

An electronic version of this document is available on the World Wide Web at 

http://dms. dot. govllreportslreports _aviation. asp 
Case: 1: 11-cv-01890 DOf~T.ff~Jffi~tfcj~CSPcit~~11 Page 4 of 13 Pag~JQc!fi~~Jt A 

(1) (2) I (3) 

; 

! 

WAC. C~uotll! I Iadff-OIIog ~ateg~~ 

701 Afghanistan 

401 ,Albania I 

500 1AI~erla .. 

502 Angola 

202 Anguilla (UK) 

206 Antigua & Barbuda 

303 jArgentina 

405 Armenia 

277 IAruba 

802 Australia 

403 Austria 

407 Azerbaijan 

204 Bahamas 

605 Bahrain 

703 Bangladesh 

205 Barbados 

413 Belarus 

409 Belgium 

106 Belize 

519 Benin (Dahomey) 

207 Bermuda (UK) 

702 Bhutan 

312 Bolivia 

410 Bosnia-Herzegovina 

510 Botswana 

316 Brazil 

704 Brunei I 

411 Bulgaria 

593 Burkina Faso 

706 Burma (Myanma._r) 

503 Burundi 

709 Cambodia J 

504 Cameroon 

900+ Canada 

482 Canary Islands 

507 Cape Verde 

233 Cayman Islands {UK) 

509 i Central African Rep 

511 Chad 

324 Chile 

713 China - I 327 Colombia -~ 513 Comoros I 

Congo ·--+ 515 

f--813 Cook Islands 

Key: 

Category A: File no fares 

Category B: File one-way economy class fares 

Category C: File all fares 

B 

B 

B 

B 

c 

B 

A 

B 

A 

B 

A 

8 

8 

A 

8 

B 

8 

A 

c 

B 

c 

B 

8 

B 

8 

c 

A 

B 

8 

B 

B 

8 

8 

A 

8 

8 

c 

8 

8 

A 

c 

B 

8 

8 

B 

Page 1 

I (4) 

Foreign Carrier(s) 

Designated by (2) Must File 

5tb l6tb f[eed~m Eanui 

No 

No 

.. .. . . ·- - ~· ·-· . .No .• ··-··-.. ··- ~ .... - . --" 

No 

Yes 

No 

No 

No 

No 

No 

No 

No 

No 

No 

No 

No 

No 

No 

Yes 

No 

Yes 

No 

No 

No 

No 

Yes 

No 

No 

No 

No 

No 

No 

No 

Yes 

No . 

No 

Yes 

No 

No ·- 1----· No 

Yes 

1--··· 

Yes 

No 

No ·-

No 
Case: 1 :11-cv-01890 Domwrt~X~~fl~:SJ~~tJI~ 1 Page 5 of 13 PagE~Ut~t:h~~t A 

Page2 

(1) ! (2) (3) (4) 

Foreign Carrier(s) 

! Designated by (2) Must File 

'm& Cuunt~ IarifHil~ng Categg~ 5tb l!itb Emedum Ea[e& 

110 Costa Rica A No 

533 Cote d' lvolre B No 

415 Croatia B - --- ·- No ----·- -----·- -- -- --- -· 

611 Cyprus B No 

418 Czech Republic A No 

517 Dem Rep of Congo B No 

419 Denmark A No 

525 Djibouti B No 

221 Dominica B No 

224 Dominican Republic A No 

337 Ecuador B No 

591 Egypt B No 

118 El Salvador A No 

521 Equatorial Guinea B No 

523 Eritrea B No 

422 Estonia B No 

522 Ethiopa B No 

821 Fiji A No 

425 Finland A No 

427 France (To 4/1/2003) B No 

427 France (After 4/1/2003) A No 

344 French Guinea (France) French Overseas Department: See France 

526 Gabon B No --- 432 Georgia B No 

1--429 -Germany A No 

~9 - Ghana B No 

433 Greece B No 

419 Greenland (Denmark) A No 

273 !Grenada B No 

235 1

Guadeloupe (France) French Overseas Department: See France 

127 Guatemala A No 

531 Guinea B No 

559 Guinea-Bissau B No 

350 Guyana B No 

238 'Ha~l B No 

131 Honduras A No 

729 Hong Kong c Yes 

437 Hungary B No -- 439 rlceiand A No - I - 733 ~India 

I 

c Yes 

~- I-ndonesia ·---·· 

B No 

632 (Iran -~ --· B No 

441 :Ireland I A No ~-i ·--·- No ~~:srael +-·· A I 

450 Italy I B No 

Key: 

Category A: File no fares 

Category 8: File one-way economy class fares 

Category C: File all fares 

-
Case: 1: 11-cv-01890 Do~ l!:x~~H;fi: ~f~li~ 1 Page 6 of 13 Page.!QJeh~t A 

Page3 

(1) (2) (3) (4) 

Foreign Carrier(s) 

Designated by (2) Must File 

WAC. ~QUDl~ IiulfHlling ~aluga~ lilb l6lb E[gedam Eams 

243 Jamaica A No 

736 Japan c Yes 

639 Jordan A ·- ---- ·-·----·. ~Q ·--. ·- .. -

738 Kazakstan B No 

535 Kenya B No 

824 Kiribati B No 

778 Korea (South) A No 

644 Kuwait B No 

743 Kyrgyzstan B No 

744 Laos B No 

451 Latvia 8 No 

647 Lebanon 8 No 

536 Lesotho 8 No 

537 Liberia 8 No 

453 Leichtenstein 8 No 

452 lithuania 8 No 

454 Luxembourg A No 

455 'Macedonia 8 No - 747 Macau A No 

541 Madagascar 8 No 

542 Malawi 8 No 

749 Malaysia A No 

750 Maldive Islands 8 No 

543 Mali 8 No 

844 Marshall isiands · 8 No 

456 Malta 8 No 

252 Martinique (France} · French Overseas Department: See France 

545 Mauritania --1-- .. 8 No ---- 546 Mauritius (UK} c Yes 

547 Mayotte (France) French Overseas Department: See France ·---· 148 Mexico B No 

810 Micronesia 8 No 1-----c-:::c·- - - 457 Moldova B No 

751 Mongolia 8 No 

256 Montserrat, 8WI (UK} c Yes 

548 Morocco B No ·--·-

550 Mozambique 8 No ---·----- 575 Namibia 8 No 

845 Nauru c Yes ----- 755 Nepal 8 No 

461 I Netherlands A No f- 259 ·Netherland Antilles A No 

~46 New Caledonia (France) French Overseas Department: See France 

851 New-Zealand ·--·- A No ·------- ---· 153 Nicaragua A No 

Key: 

Category A: File no fares 

Category 8: File one-way economy class fares 

Category C: File all fares 

- . -··--

·-

·--
Case: 1 : 11-cv-0 1890 Doffiffft ~x~1;fpfiiWR: §p~~li~ 1 Page 7 of 13 Page,!.~~t,h?e~t A 

Page4 

(1) (2) (3) (4) 

r Foreign Carrier(s) ~--~-------------------4----------------~----~~~~7-~~:~~~--~ Designated by (2) Must File 

~ Country Tariff-filing Category 5th /6th Freedom Fares 

554 Niger B No 

555 Nigeria ~ B No 

___ 852__NLYfL(NmZealami) _______ .. __ __ _ ____ A _______________________ ~---··--··· ________ tljo _______________ _ 

465 Norway A i No 

658 lOman B No 

No ~~~~~---------------4--------~------+-------------~------------~ 764 Pakistan A 

005 Palau B No 

162 Panama A No 

804 Papua New Guinea B No 

365 Paraguay B No 

368 Peru A No 

No 

No 

766 Philippines B 

467 Poland -t--------=s=-------t---------------:-:----------------1 

469 Portugal B No 

664 Qatar B No 

563 Reunion Island (France) French Overseas Department: See France 

473 Romania A No 

475 Russian Federation A No 

566 Rwanda B No 

275 St. Kitts-Nevius B No 

No ---------4-------~------+--------------~------------~ V6 &~~) B 

977 Sts. Pierre/Miquelon (France) French Overseas Department: See France 

279 St. Vincent B No 

479 San Marino B No 

No 

No 

567 Sao To_m_e_&--cP:-r-'in-c-ci-pl,-e____ B 

r--sro- Saudi Arabia ----+-------s=-------+------

No -------=-------+-----------~~------------~ 569 Senegal B 

480/45~ Serbia-Montenegro B No 

570 Seychelles B No 

571 Sierra Leone B No 

No l---=--c--f-c,...,.--------------------,f----------------:-J----------~-;-----------------I 

776 Singapore A 

No l----:-::-c::--f-c::-:-''---;--:---------------f------··---=--------+---------------::-:--------------l 

483 Slovakia B 

No 

No 

481 Slovenia 1------+~----~~----------- ·----------- 87 4 Solomon Islands 

573 Somalia No 

562 South Africa No 

No 

No -- 482 Spain 711 Sri Lan,-ka __________ --t-------=--------+-

No 

1-----+---------------------· -------=-------1-------------:-;-------------l 583 Sudan ·- No 

No 

379 !Surinam 

l--:=-:::c-+c:::---------:-:-------;-- --------------+-------:=--------+------------~-------------I 

582 :Swaziland 

No 

No 

484 !Sweden ,------------------+--- 486 Switzerland 

No ----- 676 Syria • ------------~---------------4r-------------~------

t-823 Tahiti (France) 1 --+-------~- -~------------------ French Overseas Department: See France 

Key: 

Category A: File no fares 

Category B: File one-way economy class fares 

Category C: File all fares 
Case: 1: 11-cv-01890 Do.c,umru;t.#: 15-2 F.iled:_Gt6/07/11 Page 8 of 13 Pageln #: 191 

1 arnr Exemption S1atus Atfachment A 

Page 5 

- . (1) (2) ---···-·- -·- (3)- (4) 

Foreign Carrier(s) 

Designated by (2) Must File 

WAC. Cguot~ Tariff-filing CDtggg~ 5th l6tb E~:tu:dgm Eilte& 

783 Tajikistan B No 

585 Tanzania B No 

782 Thailand B No 

527 The Gambia B No 

586 Togo B No 

881 Tonga B No .. 

280 Trinidad & Tobago B No 

588 Tunisia B No 

679 Turkey B No -- 785 Turkmenistan B No 

281 Turks & Caicos Is. (UK) c Yes 

817 Tuvalu B No 

590 Uganda B No 

488 Ukraine A No 

678 United Arab Emirates A No 

493 United Kingdom c Yes -- 385 Uruguay B No -- -- 788 Uzbekistan A No 

885 Vanuatu B No -- 388 Venezuela B No 

791 Vietnam B No 

282 Virgin Islands {UK) c Yes 

892 Western Samoa B 

I 

No 

694 Yemen B No 

---· 597 Zambia B No 

565 Zimbabwe B No 

781 l~aman** A No -

Notes: * Subject to the restrictions on sales of transportation on Syrian Arab Airlines (Order 86-11-30). - ** The U.S. does not recognize Taiwan as a state or country, but maintains unofficial relations 

with Taiwan in accordance with The Taiwan Relations Act. ---

Key: 

Category A: File no fares 

Category B: File one-way economy class fares 

Category C: File all fares 
Case: 1: 11-cv-01890 Document#: 15-2 Filed: 06/07/11 Page 9 of 13 PageiD #: 192 

Tariff Filing Requirements 

General Matters 

Attachment B 

Page 1 of 4 

Under our final rule, carriers are exempt from the duty to file certain governing niles tariffs 

·· . - -containing~gener-al-eonditiens-ef-earriage~. 1'hese-rules-tnclude-such-general-subjectras-----·-·-·---····-

currency of fares, electronic surveillance of passengers and baggage, capacity limitations, 

denied boarding compensation, and other matters of general application to international air 

transportation. 

However, elimination of our tariff filing requirements for certain information should not be 

construed as a grant of exemption from other requirements of our regulations. We specifically 

require, in 14 CFR 221, Subpart K, that a carrier have available for public inspection all 

effective tariffs applicable to passenger traffic to or from the point where tickets for passenger 

transportation are sold (221. 101 ). In addition, carriers must, among other things, (l) make the 

full text of any contract terms that are incorporated by reference readily available for public 

inspection at each of their airport or other ticket sales offices; (2) provide free of charge to any 

person upon request, by mail or otherwise, a copy of the full text of all contract terms 

incorporated by reference; and (3) provide persons a concise and immediate explanation of 

certain important terms such as liability limitations, claim restrictions, and failure to perform 

service, among others (221.107). In view of our reduced filing requirements, we will strictly 

enforce these requirements that carriers meet consumer requests for tariff or terms of contract 

information. Questions dealing with compliance with our notice provisions should be directed 

to the Office of the Assistant General Counsel for Aviation Enforcement and Proceedings, 

(202) 366-9342. 

Required and Excluded Rules 

We have listed in Part A, below, governing rules that carriers are no longer required to file for 

approval, and which will not be accepted if filed. Governing rules that carriers are required to 

continue to file for approval are listed in Part B. These rules will continue to be part of the 

official tariffs, including appropriate Warsaw personal liability as noted in Attachment C, and, 

accordingly, they will not be subject to the statement required by 14 CFR 293.ll(a). Rules in 

Part B subject to the statement in 14 CFR 293.11 (b) are marked with an asterix. Rules not in 

either category should be filed, and will be accepted or excluded under assigned authority. In 

addition, we will no longer require the filing of several special-purpose, combined-carrier 

tariffs. These tariffs are listed in Part C. Questions dealing with tariff rules required to be 

filed and those which will no longer be accepted should be directed to the Office of 

International Aviation, Pricing and Multilateral Affairs Division: John H. Kiser (202) 366-

2431, David B. Richards (202) 366-2432, or Keith A. Shangraw (202)-366-2439. 

Individual carrier tariffs are generally broken into four sections: Table of Contents; Section I -

General Rules; Section II - Special and Promotional Fares, Unpublished Fares; and Section 

III - Special and Promotional Fares, Published Fares. Material in these sections that is to be 

filed or excluded is described below, by section. Published Fares and Fare Rules in Section 
Case: 1: 11-cv-01890 Document#: 15-2 Filed: 06/07/11 Page 1 0 of 13 PageiD #: 193 

Attachment B 

Page 2 of 4 

III are already officially filed in electronic form, and inclusion or exclusion of these data is 

dependent upon the tariff filing exemptions set forth by market in Attachment A. 

~art-AT- Rules -which--wiU-ne-lenger--be---aeeeptetL · 

A. Table of Contents: 

1. Correction Number Sheet 

B. Section I ~ General Rules: 

1. Currency of Fares/ Applications- - The listing of currencies and exchange rates by 

country, generally Rule 145. 

2. Extension of Credit~ - Terms of credit are already precluded from application in 

U.S. tariffs by 14 CFR Part 221.38. 

3. Denied Boarding Compensation- - Denied Boarding Compensation requirements 

are codified in 14 CFR Part 250. 

4. Electronic Surveillance of Passengers and Baggage- - generally Rule 15. 

5. Amenities/Services for Delayed Passengers- -generally Rule 95. 

6. Passenger Expenses En Route- - generally Rule 35. 

7. Standard Format of Paper Fare Rules- -if different from Standard Format of Fare 

Rules for Electronic Fares, generally Rule 2. 

8. Airport Lounge Facilities. 

9. Group Conditional Reservations- - generally Ru1e 62. 

10. Capacity Limitations- - These provisions are included in electronic fare rules, 

category 50. The provisions are no longer needed as a general rule, usually Rule 

61. 

11. Shared Designators- - listing of carriers and flight numbers under the nontransporting carrier code, generally Rule 57. 

12. Classes of Service- - generally Rule 6. 

13. Currency of Payment~ - generally Rule 75. 

14. Refunds- - generally rule 90. 

15. Preplanned Oxygen Service- - generally Rule 50. 

16. Ground Transfer Service- - generally Rule 30. 

17. Administrative Formalities -Passports, Visas, and Tourist Cards- -generally Rule 

45. 

18. Reservations- - generally Rule 60. 

19. Revised Routings, Failure to Carry, and Missed Connections- -generally Rule 80. 

20. Routings- • generally Rule 140. 

21. Schedules, Delay, and Cancellation of Flights- - generally Rule 85. 

22. Tickets- - generally Rule 65, but may have separate controlling rules for electronic 

ticketing provisions and ticketing time limits. 

C. Section II- - Special and Promotional Fares and Charges - Unpublished Fares 

1. All VUSA, RTW, and Circle Trip fare rules. 

2. All Contract Bulk fare rules. 

3. All Companion/Spouse/Family fare rules, except to the extent they apply in 

markets not exempted from fares filing as set forth in Attachment A. 

4. All Tour Conductor/Agent fare rules. 
Case: 1 :11-cv-01890 Document#: 15-2 Filed: 06/07/11 Page 11 of 13 PageiD #:194 

Attachment B 

Page 3 of 4 

5. All status fare rules-- e.g. Seamen's Fares, Convention Fares, and Senior Citizen. 

6. All "Frequent Flyer" award provisions. 

7. All Inclusive Tour rules, including Air/Sea Tour Rules . 

. -· -8 .... -.RuleS--for-l~assengers~Occupy.ing-1'-wo- Seats •...... 

9. Rules for Passengers on Stretchers. 

10. Children's and Infants' Fares- - generally Rule 200. 

D. Section III- - Special and Promotional Fares, Published Fares 

Filing requirements are determined by the tariff filing exemption set forth by market in 

Attachment A. 

Part B. Rules to continue to be filed in official tariffs. 

A. Table of Contents: 

1. Table of Contents 

B. Section I - General Rules: 

1. Application of Tariff- - generally Rule 5. 

2. Baggage- - generally Rule 115, but may continue to have separate rules for 

different elements relating to baggage. 

3. Carriage of Handicapped/Nonambulatory Passengers- - generally Rule 20. 

4. Definitions- - generally Rule 1. 

5. Liability of Carriers- - generally Rule 55. 

6. Standard Format of Electronic Rules- - generally Rule 2 (but not standard format 

of paper rules). 

7. *Surcharges- - various rule numbers; all surcharges are to be filed. 

8. *Taxes- - generally Rule 40. 

9. Fares- -generally Rule 130. 

10. Refusal to Transport- Limitations of Carrier- - generally Rule 25. 

C. Section II- - Special and Promotional Fares and Charges, Unpublished Fares 

All Companion/Spouse/Family fare rules, to the extent they apply in markets not 

exempted from fare filing as set forth in Attachment A. 

D. Section III- - Special and Promotional Fares, Published Fares 

Filing requirements are determined by the tariff filing exemption by market set forth in 

Attachment A. 

Part C. Specialized Tariffs That Need Not Be Filed 

1. Aircraft Configuration. 

2. Circle Trip and Around-the-World tariffs. 
Case: 1: 11-cv-01890 Document #: 15-2 Filed: 06/07/11 Page 12 of 13 Pagel D #: 195 

Refiling Requirement 

Attachment B 

Page 4 of 4 

The Department has been accepting, on a test basis, the electronic filing of general rules since 

April 1996. However, these electronic general rules have not been officially approved, and in 

some--cases-do--not-matGh--the-ex-isting-offieial-paper-tariff-rules:····0ur·final-nde-eliminates tne··· · filing of paper tariffs, and this Notice will restrict our acceptance of electronic general rules to 

those whlch we deem necessary to meet regulatory policy and consumer protection 

requirements. 

In order to ensure that these general rules, which will continue to be filed and which will 

become the official tariff, faithfully reflect the existing official paper tariff rules, we will 

require that all general rules that are required to be filed in Part B, above, be electronically 

refiled with the Department. 
Case: 1: 11-cv-01890 Document #: 15-2 Filed: 06/07/11 Page 13 of 13 Pagel D #: 196 

Attachment C 

RETENTION OF WARSAW NOTICE REQUIREMENTS 

We have retained the requirements of Section 221.10S (formerly 221.17S) of our regulations 

providing for a Special Notice of Limited Liability for Death or Injury under the Warsaw 

Gonvent-ion.--Although-the-notice-specified--itrilwregulatimrincludesa·statemenCtliat a-··· ... $10,000 limit may apply, the section further provides: 

"Provided, however, That when the carrier elects to agree to a higher limit of liability 

to passengers than that provided in Article 22(1) of the Warsaw Convention, such 

statement shall be modified to reflect the higher limit. ... " 

Part 203 of the regulations, which will remain fully effective, requires all air carriers, and 

foreign air carriers (with the exception of purely domestic, non-commuter air taxi operators) to 

become parties to the 1966 Montreal Agreement (Agreement 18900, OST Form 4S23) which 

waives the Warsaw passenger liability limits up to $7S,OOO, under strict liability. Section 

203.S also deems any such air carrier or foreign air carrier holding license authority (including 

exemptions) or operating in air transportation to be a party to the 1966 Agreement. That 

Agreement contains a specified Notice, which would be utilized in lieu of, and as a 

modification of, the Notice specified in section 221.1 OS. 

In addition, the Department's Order approving the lATA IIA and MIA Agreements, and the 

ATA IPA Agreement (See Order 97-1-2, January .8, 1997), which waived the Warsaw 

passenger liability limits in their entirety (and generally provide for strict liability up to 

I 00,000 Special Drawing Rights), provide that air carriers and foreign air carriers filing tariffs 

in accordance with the waivers under the MIA and IP A Agreements may substitute those 

Agreements for the 1966 Agreement for purposes of all DOT regulations and conditions on 

operating authority for so' long as they are parties to those Agreements. 

Carriers party to the IP A, MIA or IIA Agreements are further exempted by that Order from all 

DOT regulations and authority conditions only to the extent necessary to implement those 

agreements in the manner contemplated by the Order. The IPA Agreement also contains a 

specified appropriate Notice. 

In sum, all air carriers and foreign air carriers must include in their tickets the section 221.1 OS 

Notice, (or more specifically the 1966 Montreal Agreement Notice), modified to reflect any 

further waiver of the Warsaw passenger limits which have been implemented; or, for air 

carriers and foreign air carriers which have filed tariffs implementing the waiver of the 

Warsaw passenger liability limits in their entirety under the IPA or MPA Agreements, 

appropriate provisions in accord with those agreements. All air carriers and foreign air 

carriers who implement the waiver of the Warsaw passenger liability limits under the IIA, IPA 

or MIA Agreements shall amend their tariffs accordingly. 
EXHIBIT 2 









EXHIBIT 3 
NOTICE 

THE PROVISIONS ON THE PASSENGER'S TICKET AND CONDITIONS OF CARRIAGE ARE 

APPLICABLE UNLESS INCONSISTENT WITH OUR TARIFFS OR APPLICABLE LAW, IN WHICH 

EVENT SUCH TARIFFS OR LAW SHALL PREVAIL. 

ALIT ALIA GENERAL CONDITIONS OF CARRIAGE 

(PASSENGERS AND BAGGAGE) 

2005 Revised edition 

This edition contains amendments of articles IX (9.4); XVI (16.2, 16.3), XVII (17.4, 17.7) and 

XVIII (18.2, 18.4), and new article XXII (Contingency Plan for Lengthy Tarmac Delay). 

CONTENTS 

- GENERAL PROVISIONS 

- I DEFINITIONS 

- II APPLICABILITY 

- III TICKETS 

- IV FARES AND CHARGES 

- V RESERVATIONS 

- VI CHECK-IN AND BOARDING 

- VII REFUSAL AND LIMITATION OF CARRIAGE 

- VIII BAGGAGE 

- IX RESTRICTIONS REGARDING CONTENTS OF BAGGAGE 

- X SCHEDULES, DELAYS, CANCELLATIONS, DENIED BOARDING 

- XIREFUNDS 

- XII CONDUCT ABOARD 

- XIII ADDITIONAL SERVICES 

- XIV ADMINISTRATIVE FORMALITIES 

- XV SUCCESSIVE CARRIERS 

- XVI CARRIER'S LIABILITY FOR DEATH OR INJURIES OF PASSENGERS 

- XVII CARRIER'S LIABILITY FOR DAMAGE TO BAGGAGE 

- XVIII CARRIER'S LIABILITY FOR DAMAGE DUE TO DELAY 

IN CARRIAGE OF PASSENGERS AND BAGGAGE 

- XIX UNIFORM RULES REGARDING CARRIER'S LIABILITY 

- XX TIME LIMITATION ON CLAIMS AND ACTIONS 

- XXI MODIFICATIONS AND WAIVERS 

- XXII CONTINGENCY PLAN FOR LENGTHY TARMAC DELAY 
EXHIBIT 4 
American Airlines Conditions Of Carriage On AA.com Page 1 of 12 

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Reservations Travel information Travel Deals AAdvanlage·'· Products & Gifts Business Programs About Us 

CONDITIONS 

Your ticket and the following Conditions of Carriage constitute the contract between you, the passenger, and 

American Airlines, Inc. ("American") and apply to all transportation provided by American (including transportation on 

codeshare partners') between points in the United States (including Puerto Rico and the U.S. Virgin Islands). Foreign 

air transportation is governed by applicable tariffs on file with the Department of Transportation. See Cilflil(ltan 

GenC!Gl Rules Tarlfi and lnlernnttonal (3Eill-';f81 RulES Tariff. 

American will act as an agent to issue tickets, check baggage and book reservations for transportation via other 

carriers which have interline agreements with American. Other carriers may have different terms and conditions 

applicable to their flights. These may be obtained directly from the other carriers. 

Please read your contract carefully. 

American Airlines, Inc. 

P.O. Box 619616, MD 5435 

DFW Airport, TX 75261-9616 

'American offers codeshare service on domestic flights operated by the following carriers: American Eagle Airlines, 

Inc.; Hawaiian Airlines, Inc.; Alaska Airlines, Inc.; Executive Airlines, Inc. (doing business as American Eagle); 

Chautauqua Airlines Inc. (doing business as AmericanConnection); Hyannis Air Service (doing business as Cape 

Air); Horizon Air Industries, Inc (doing business as Horizon Air). 

American Airlines Conditions of Carriage 

1. Definitions 

2. Fare changes 

3. Responsibility for Schedules and Operations 

4. Force Majeure 

5. Oversales 

6. Baggage: General Acceptance, Checking Your Baggage 

7. Baggage: Acceptance, Cut-off Time, Cany-on Baggage, Checl<ed Baggage 

8. Baggage: Hazardous Items, Firearms, Live Animals 

9. Baggage: Liability, Legal Action, Missing Items, Loss/Delay, Damaged, Claims 

10. Passenger Checl<-in Requirements, Recommended Check-In Times 

11. Minimum Check-In Times 

12. Acceptance of Passengers 

13. TSA Secure Flight Program 

14. Acceptance of Children, Accompanied, Unaccompanied 

15. Refunds: General Refunds, Involuntary Refunds, Lost Ticket 

16. Ticket Validity 

17. Ticket Validity: Compliance with Terms and Conditions of Sale 

18. Lowest Fare Availability/Guaranteed Fare 

19. Customers with Disabilities 

20. "Your Choice" Optional Products & Services 

21. Aircraft Information 

22. Customer Relations 

23. Delays, Cancellations and Diversions 

24. Essential Needs During Extraordinary Delays 

25. Aut110rity to Change Contract 

26. Frequent Flyer Award Disclosure 

27. Service with Domestic Codesl1are Partners 

DEFINITIONS 

See more travel 

information about our 

patiner carriers within 

our oneworld alliance. 

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sucn a1r carriage, "Warsaw Convention" means the Convention tor the Unit1cat1on at Certain ~ules Relatmg to International Carriage by Air signed at Warsaw, lLtn L 1· J Feedbacl< 

October 1929, or that Convention as amended at The Hague, 28th September 1955, whichever may be applicable. 

2. Carriage hereunder is subject to the rules and limitations relating to liability established by the Warsaw Convention unless such carriage is not 

"International Carriage" as defined by that Convention. 

3. To the extent not to conmct with the foregoing, carriage and other services performed by each carrier are subject to: (!)provisions contained In this ticket, (II) 

applicable tariffs, (Ill) carrier's conditions of carriage and related regulations which are made pa1t hereof (and are available on application at the offices of the carrier), 

except In transportation between a place in the United States or Canada and any place outside thereof to which tariffs In force In those count11es. 

4. Carrier's name may be abbreviated In the tlcl<et, the full name and its abbreviation being set forth In carrier's tariffs, conditions of carriage, regulations or timetables: 

carrier's address shall be the airport of departure shown opposite the first abbreviation of the carrier's name In the ticket; the agreed stopping places set forth on the 

passenger's route; carriage to be performed hereunder by several successive carriers is regarded as a single operation. 

5. An air carrier Issuing a ticket for carriage over the lines of another air carrier does so only as its agent. 

6. Any exclusion of limitation of liability of carrier shall apply to be and be for the benefit of agents, servants, and representatives of carrier and any person whose aircraft Is 

used by carrier for carriage and its agents, servants and representatives. 

7. Checked baggage will be delivered to bearer of the baggage check. In case of damage to baggage moving In International transportation, complaint must be made In 

writing to carrier Immediately after discovery of damage and, at the latest, 7 days from receipt; In case of delay, complaint must be made within 21 days from date 

baggage was delivered. See tariffs or conditions of carriage regarding non-International transportation. 

8. This ticket Is good for carriage for one year from date of issue, except as otherwise provided In this ticket, in carrier's tariffs, conditions of carriage, or related 

regulations. The fare for carriage hereunder Is subject to change prior to commencement of carriage. Carrier may refuse transportation if the applicable fare has not 

been paid. 

9. Carrier undertakes to use its best efforts to carry the passenger and baggage with reasonable dispatch. Times shown in timetable or elsewhere are not guaranteed and 

form no part of this contract. Carrier may without notice substitute alternate carriers or aircraft, and may alter or omit stopping places shown on the ticket in case of 

necessity. Schedules are subject to change without notice. Carrier assumes no responsibility for making connections. 

10. Passenger shall comply with Government travel requirements, present exit, entry and other required documents and arrive at airport by time fixed by carrier or, if no 

time is fixed, early enough to complete departure procedures. 

11. No agent, servant or representative of carrier has authority to alter, modify or waive any provision of this contract. 

Carrier reserves the right to refuse carriage to any person who has acquired a ticket in violation of applicable law or carrier's tariffs, rules or regulations. 

http://www.delta.com/legal/conditions _of_ contract!index.jsp 4/12/2012 
) 

Code Shares 

2.3. On some services we have arrangements with other carriers known as "Code Shares". This 

means that even if you have a reservation with us and hold a ticket where our name or airline 

designator code ( LH) is indicated as the carrier, another carrier may operate the aircraft. If in case 

of a Code Share flight LH is indicated as the carrier these Conditions of Carriage also apply to such 

transportation. If such arrangements apply we will advise you of the carrier operating the aircraft at 

the time you make a reservation. 

For Code Share services on flights operated by another carrier, LH is responsible for the entirety of 

the Code Share journey for all obligations to Passengers established in these rules. However, each 

Code Share partner has rules with respect to the operation of its own flights, which may differ from 

LH's rules for flights operated by Lufthansa. Those rules are incorporated herein by reference and 

form a part of these Conditions of Carriage. 

The rules with respect to operations that may differ between Lufthansa and its Code Share partners 

include, but are not limited to: 

1) Check-in time limits; 

2) Unaccompanied minors; 

3) Carriage of animals; 

4) Refusal to transport; 

5 ) Oxygen service; 

6) Irregular operations; 

7) Denied boarding compensation; 

8 ) Baggage acceptance, allowance and liability 

For the rules and regulations of Lufthansa Code Share partners we refer you to their websites or 

your travel agency. 

You should review the rules for flights operated by another carrier under a Code Share agreement 

and familiarize yourself with such things as flight check-in requirements and policies regarding 

unaccompanied minors, carriage of animals, refusal to transport, oxygen services, irregular operations, 

denied boarding compensation and baggage acceptance among others. 

Lufthansa will advise you at the time of your initial inquiry whether a LH flight is operated by another 

carrier under a Code Share arrangement. 

Overriding Law 

2 .4. These Conditions of Carriage are applicable unless they are inconsistent with our Tariffs or 

applicable law in which event such Tariffs or laws shall prevail. 

If any provision of these Conditions of Carriage is invalid under applicable law, the other provisions 

shall nevertheless remain valid. 

Conditions Prevail over Regulations 

2. 5. Except as provided in these Conditions of Carriage, in the event of Inconsistency between these 

Conditions of Carriage and any other regulations of Deutsche Lufthansa AG, dealing with particular 

subjects, these Conditions of Carriage shall prevail. 

A STAR ALLIANCE MEMBER v:.:· 
General Conditions of Carriage 

September 2011 

2.4 Overriding law 

These Conditions of Carriage are applicable unless they are inconsistent 

with our Tariffs or applicable law that cannot be waived by agreement of 

the parties in which event such Tariffs or laws shall prevail. 

If any provision of these Conditions ofCarriage is invalid under any 

applicable law, the other provisions shall nevertheless remain valid . 

. 2.5 Conditions prevail over regulations 

Except as provided In these Conditions of Carriage, in the event of incon-. 

sistency between these Conditions of Carriage and any other regulations· 

we may have dealing with particular subjects, these Conditions of 

Carriage shall prevail. 

Article 3: Tickets 

3.1 General provisions 

3.1.1 The Ticket constitutes conclusive evidence of the contract of 

Carriage between us, and the Passenger named In the Ticket. We will 

provide Carriage only to the Passenger named in the Ticket, and you 

may be required to produce appropriate identification. 

3.1.2 A Ticket Is transferable in its entirety (but not in part), provided; 

-that you contact us with a request for transfer of your Ticket at least 24 

hours before the scheduled departure time shown on the first flight 

coupon of the Ticket, 

-that we are the operating carrier of all the flights or flight segments in 

the Ticket, and 

-that the person to whom the Ticket is to be transferred satisfies and 

complies with all the conditions.applying to the original Ticket. 

Upon your surrender of your Ticket to us, we will issue a new Ticket In 

the name of the person to whom the Ticket is to be transferred. The new 

Ticket will be subject to the same terms and conditions as those of the 

replaced Ticket. You will be charged an administration fee for the transfer of the Ticket. 
Conditions of carriage, A1i. 02 

Article 02 -Applicability 

2.1 General 

Except as provided in 2.2, 2.4 and 2.5, our Conditions of Carriage apply only to 

carriage on those flights or flight segments where our name or Designator Code is 

indicated in the ticket for that flight or flight segment. 

2.2 Charter Operations 

If carriage is performed on a charlerflight agreement, these Conditions of Carriage 

apply only to the extent that they are incorporated by reference or other.vise on the 

ticket or by the charter agreement. 

2.3 Codeshares 

We perform some services by arrangements with other carriers known as 

"codeshares". Such flights may be operated by another carrier under its own or a 

third carrier's Designator Code as well as ours. If you have a reservation with us 

and hold a ticket where our name or Designator Code is indicated as the Carrier, the 

flight may be operated by our Codeshare-Partner. In case of a Codeshare-Fiight, 

we will advise you of the Carrier operating the aircraft at the time you make your 

reservation. 

2.4 Combined transportation 

We provide certain routes in cooperation with other road and rail transportation 

companies. In these cases, the conditions of carriage for ground transport are 

based on the respective company's conditions of carriage. 

2.5 Overriding law 

These Conditions of Carriage are applicable unless they are inconsistent with our 

Tariffs or the applicable law, in which event such Tariffs or laws shall prevail. Should 

any provision of these Conditions of Carriage be invalid under the applicable law, 

the other provisions shall nevertheless remain valid. 

2.6 Precedence of Conditions 

Unless specifically stated otherwise herein, these Conditions of Carriage shall 

prevail over any other regulations we have issued for our passenger carrying 

activities. 

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Conditions of contract 

If the passenger's journey involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may 

be applicable and the Convention governs, and in most cases, limits the liability of carriers for death or personal injury and in respect to loss of or 

'damage to baggage. See also notices headed "Advice to International Passengers on Limitation of Liability" and "Notice of Baggage Liability 

Limitations." 

(1. As used in this contract, "ticket" means this passenger ticket and baggage check, of which these conditions and the notices form part, 

"carriage" is equivalent to "transportation," "carrier" means all carriers that carry or undertake to carry the passenger or his baggage hereunder 

or perform any other service incidental to such air carriage, "WARSAW CONVENTION" means the Convention for the Unification of Certain 

Rules Relating to International Carriage by Air signed at Warsaw, 12th October 1929, or that Convention as amended at The Hague, 28th 

September 1955, whichever may be applicable. 

• 2. Carriage here under is subject to the rules and limitations relating to liability established by the Warsaw Convention unless such carriage is 

I not "international carriage" as defined by that Convention. 

: 3. To the extent not in conflict with the foregoing carriage and other services performed by each carrier are subject to: (I) provision contained in 

this ticket, (II) applicable tariffs, (Ill) carrier's conditions of carriage and related regulations which are made part hereof (and are available on 

application at the offices of carrier), except in transportation between a place in the United States or Canada and any place outside thereof to 

which tariffs In force in those countries apply. 

4. Carrier's name may be abbreviated in the ticket, the full name and its abbreviation being set forth in carrier's tariffs, conditions of carriage, 

regulation or timetables; carrier's address shall be the airport of departure shown opposite the first abbreviation of carrier's name in the ticket; 

the agreed stopping places are those places set forth in this ticket or as shown in carrier's timetables as scheduled stopping places on the 

passenger's route; carriage to be performed hereunder by several successive carriers is regarded as a single operation. 

5. An air carrier issuing a ticket for carriage over the lines of other air carriers does so only as its agent. 

6. Any exclusion or limitation of liability of carrier shall apply to and be for the benefit of agents, servants and representatives of carrier and any 

person whose aircraft is used by carrier for carriage and its agents, servants and representatives. 

7. Checked baggage will be delivered to bearer of the baggage check. In case of damage to baggage moving in international transportation, 1 complaint must be made In writing to carrier forthwith after discovery of damage and, at the latest, within 7 days from receipt; in case of delay, 

complaint must be made within 21 days from date the baggage was delivered. See tariffs or conditions of carriage regarding non-international 

transportation. 

, 8. This ticket is good for carriage for one year from date of issue, except as otherwise provided in this ticket, in carrier's tariffs, conditions of 

carriage or related regulations. The fare for carriage hereunder is subject to change prior to commencement of carriage. Carrier may refuse 

transportation if the applicable fare has not been paid. 1 

9. Carrier undertakes to use its best efforts to carry the passenger and baggage with reasonable dispatch. Times shown in timetable or 

elsewhere are not guaranteed and form no part of this contract. Carrier may, without notice, substitute alternate carriers or aircraft, and may 

alter or omit stopping place shown on the ticket in case of necessity. Schedules are subject to change without notice. Carrier assumes no 

responsibility for making connections. 

JO. Passenger shall comply with Government travel requirements, present exit, entry and other required documents, and arrive at airport by time 

fixed by carrier, or if no time is fixed, early enough to complete departure procedures. 

11. No agent, servant or representative of carrier has authority to alter, modify or waive any provision of this contract. 

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Home > Book Flights > Conditions of carriage You are in the [United Kingdom Site-[~] 

CONDITIONS OF CARRIP.GE FOR PASSENGERS AND B/\GGAGE 

We've split our Conditions of Carriage Into sections to make it easier to use, simply click the most relevant 

link below to get started (please note, the Conditions of Carriage will appear below these links). 

Most recent revision: Revision 22, 23rd August 2011. 

Article 1 - What Particular Expressions Mean in these Conditions 

Article 2 - Appllcabilitv 

Article 3 - Tickets 

Article 4 - Fares, Taxes, Fees Charges, Governments Scheme Costs and Surcharges 

Article 5 - Reservations 

Article 6 - Check-In and Boarding 

Article 7 - Refusal and Limitation of Carriage 

Article 8 - Baggage 

Article 9 - Schedules, Delays, Cancellation of Flights and Denied Boarding 

Article 10- Refunds 

Article 11 - Unacceptable Conduct Aboard Aircraft 

Article 12 - Arrangements for Additional Services 

Article 13 - Administrative Formalities 

Article 14 - Successive Carriers & Codeshare Services 

Article 15 - Liabilitv for Damage 

Article 16 - Time Limits for Baggage Claims, Processing of Baggage Claims, and Time Limits for all Actions for 

Damages 

Article 17 - Other Conditions 

Article 18 - Tarmac Delay Contingency Plan 

Article 19 - Interpretation 

ARTICLE 2 APPLICABILITY 

2.1 General 

Except as provided in Articles 2.2 and 2.4, these Conditions of Carriage apply as supplemented by article 17 

wherever we are the operator of your flight or where our Airline Designator Code appears in the 'carrier' box 

of your ticl<et. 

2.2 Charter and package tour holiday operations 

If carriage Is performed pursuant to a charter agreement, these Conditions of Carriage apply only to the 

extent they are Incorporated by reference or otherwise in the charter agreement or your Ticket. If carriage is 

performed pursuant to a pacl<age tour holiday contract with a third party these Conditions of Carriage apply 

to your carriage by air, with the exception of those provisions dealing with refunds. 

2.3 Code shares 

On some services we have arrangements with other carriers known as "code shares". This means that even If 

you have a reservation with us and hold a ticket where our name or Airline Designator Code is indicated as 

the carrier, another carrier may operate the aircraft. If such arrangements apply we will advise you of the 

carrier operating the aircraft at the time you make a reservation whenever your reservation Is made directly 

with us or, if made through an Authorised Agent, we shall try to make sure that the Authorised Agent gives 

you such information. 

2.4 Overriding law 

2.4.1 These Conditions of Carriage are applicable unless they are inconsistent with our Tariffs or laws which 

apply to your contract of carriage, in which event such Tariffs or applicable laws shall prevail. 

2.4.2 If any provision of these Conditions of Carriage Is invalid under any applicable law, the other provisions 

shall nevertheless remain valid. 

2.5 Conditions prevail over regulations 

Except as provided in these Conditions of Carriage, In the event of inconsistency between these Conditions of 

Carriage and any other regulations we may have dealing with particular subjects, these Conditions of 

Carriage shall prevail. 

BOOI< FLIGHTS 

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Going to? 

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Departing 

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EXHIBIT 5 
' 

Case: 1:11-cv-00779 Document#: 53 Filed: 03/30/12 Page 1 of 6 PageiD #:575 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

PAVEL POLINOVSKY and 

ILONA POLINOVSKY, 

on behalf of themselves and all others 

similarly situated, 

Plaintiffs, 

v. 

BRITISH ~RWAYS, PLC 

Defendants. 

) 

) 

) 

) 

) No.ll C 779 

) 

) Judge Ruben Castillo 

) 

) 

) 

) 

) 

ORDER 

Plaintiffs Pavel and Ilona Polinovsky ("Plaintiffs") bring this putative class action agai st 

defendant British Airways PLC ("BA") for breach of contract based on BA's alleged violation f 

Regulation No. 261/2004 of the European Parliament and European Council ("EU 261 "),that 

was allegedly incorporated into BA's General Conditions of Carriage ("BA's Conditions of 

Carriage"). Plaintiffs purchased tickets from BA for transportation from Atlanta, Georgia, to 

Warsaw, Poland, via a connecting flight at Heathrow Airport in London, England. (R. 1, Com l. 

, 21.) Plaintiffs were scheduled to depart Atlanta on December 17,2010 at 8:40p.m. on BA 

Flight 226 and arrive in Warsaw, via their connecting flight from London, on December 18, 2 

at 3:45 p.m. (Id) Approximately five hours prior to the scheduled departure of BA Flight 22 , 

Plaintiffs allege that they were informed that BA Flight 226 was cancelled for an unspecified 

reason. (Id , 23.) 

Currently pending before this Court isBA's motion to dismiss pursuant to Federal Rul 

of Civil Procedure 12(b)(6). (R. 24, Def.'s Mot.) BA's motion asserts that it is entitled to a 
Case: 1:11-cv-00779 Document#: 53 Filed: 03/30/12 Page 2 of 6 PageiD #:576 

dismissal with prejudice for the following independent reasons: (1) the Airline Deregulation A t 

("ADA") preempts Plaintiffs' state law breach of contract claim predicated upon the violation 

EU 261; (2) the Montreal Convention exclusively governs Plaintiffs' right to damages arising 

from a delay in international air transportation and preempts claims for damages under state la 

(3) BA has no legal or contractual duty to compensate Plaintiffs because, pursuant to the Air 

Transport Agreement between the United States and European Union and BA's Conditions of 

Carriage, EU 261 is not the "applicable law"; (4) even ifEU 261 were to apply, Plaintiffs are n t 

entitled to seek relief in the courts of the United States because they have not exhausted their 

administrative remedies in the European Union pursuant to EU 261; and (5) this Court's 

adjudication of Plaintiffs' breach of contract claim based on EU 261 would contravene princip es 

of international comity. (Id) 

The arguments by BA to support a dismissal with prejudice have all been thoroughly 

addressed and rejected in a comprehensive opinion authored by this Court's esteemed colleagu 

Judge Joan Humphrey Lefkow. See Giannopoulos v. Iberia Lineas Aereas de Espana, S.A., N 

11-775,2011 WL 3166159 (N.D. Ill. July 27, 2011). After giving the parties notice and an 

opportunity to brief the issue of "why this court should not fully adopt Judge Lefkow' s opinio 

and deny the pending motion to dismiss" and accepting supplemental briefing and oral argume t 

by the parties, this Court concludes that there is a meaningful reason to depart from Judge 

Lefkow's well reasoned legal analysis of the similar issues presented in this lawsuit. 

The ADA was enacted to promote "maximum reliance on competitive market forces." 

Morales v. Trans World Airlines, Inc., 504 U.S. 374,378 (1992). To ensure that "[s]tates wou d 

not undo federal deregulation with regulations of their own[,]" Congress included a preemptio 

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provision within the ADA. Id. A claim is preempted by the ADA when (1) a state has enacted 

or enforced "a law that (2) 'relates to' airline rates, routes, or services, either by expressly 

referring to them or by having a significant economic effect upon them." Iberia Lfneas Aereas 

de Espana, 2011 WL 3166159 at *2 (citing Travel All Over the World, Inc. v. Kingdom ofSau i 

Arabia, 73 F.3d 1423, 1432 (7th Cir. 1996)). "State common law qualifies as a provision havi g 

the force and effect oflaw for purposes of the first prong ofthe preemption analysis." !d. (citi g 

United Airlines, Inc. v. Mesa Airlines, Inc., 219 F. 3d 605, 607 (7th Cir. 2000)). Plaintiffs' 

common law breach of contract claim qualifies under the first prong of this analysis and becau e 

Plaintiffs did not address the second prong in their opposition brief, they have "apparently 

concede[d] that the second requirement is met." !d. at *2. Accordingly, Pfaintiffs' claim is 

presumptively preempted and Plaintiffs can withstand dismissal only if the claim falls under a 

specific ADA exception. 

Plaintiffs prevailed in Iberia Lineas Aereas de Espana because Judge Lefkow conclud 

that they had satisfied one of the narrow exceptions the Supreme Court carved out to ADA 

preemption in American Airlines, Inc. v. Wolens, 513 U.S. 291, 232-33 (1995). The Wolens 

exception to preemption applies only to breach of contract claims that are based on "the partie ' 

bargain, with no enlargement or enhancement based on state laws or policies external to the 

agreement." !d. at 233. To find that Plaintiffs' breach of contract claim against Iberia was 

excluded from the application of the ADA preemption provisions, Judge Lefkow relied on 

express terms in Iberia's contract, which explicitly stated that Iberia would provide compensat on 

"as established in EU 261 ." Iberia Llneas Aereas de Espana, 2011 WL 3166159 at* 1. 

In her analysis, Judge Lefkow distinguished the situation involved in Iberia Lfneas 

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Aereas. de Espaf1a from other cases in which air services contracts did not expressly incorporat a 

regulation: "Unlike generic references to 'applicable law' or arguments that certain federal 

regulations are implicitly part of every contract, in this case, Iberia specifically refers to 

complying with EU 261 in its conditions of contract." !d. Judge Lefkow concluded that Iberi 

"agreed to pay compensation as established in EU 261" and, thus, the Iberia situation is differ t 

from those cases in which courts previously found preemption under the ADA. Id. (emphasis 'n 

original). In the cases distinguished and discussed by Judge Lefkow (and relied upon by BA), he 

key factor was that the defendant airlines had promised to abide by applicable law without 

specifying which particular law or body of laws was intended. This is exactly what occurred i 

BA' s Conditions of Carriage, upon which Plaintiffs base their breach of contract claim. 

Judge Letkow distinguished the contract at issue in Onoh v. Northwest Airlines, Inc., 

from the Iberia's contract on the basis that the defendant in Onoh "had not expressly incorpora ed 

the Schengen Agreements into its contract by mere reference to the need to comply with all 

applicable law." Lfneas Aereas de Espaf1a, 2011 WL 3166159 at *3 (citing Onoh, 613 F.3d 5 6, 

600-01 (5th Cir. 2000)). Second, as to McMullen v. Delta Air Lines, Inc., Judge Lefkow noted 

that the defendant airline "similarly only agreed to comply with any applicable law that [was] i 

conflict with its international contract of carriage," leading the district court to conclude that t e 

defendant airline had not incorporated an outside law or regulation into its contract. Lfneas 

Aereas de Espana, 2011 WL 3166159 at *3 (citing McMullen, No. 08-1523,2008 WL 444958 , 

at *5 (N.D. Cal. Sept. 30, 2008), aff'd, 361 Fed. Appx. 757, 758 (9th Cir. 2010)). Lastly, as to 

Buck v. American Airlines, Inc., Judge Lefkow found that the distinguishing factor was that th 

regulation at issue "was not explicitly incorporated into the contract." Lfneas Aereas de Espa a, 

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2011 WL 3166159 at *3 (citing Buck, 476 F.3d 29, 36-37 (1st Cir. 2007)). 

For purposes of the Wolens exception, the language contained in BA's Conditions of 

Carriage is identical to the contract language found in Onoh and McMullen. In the event of a 

flight cancellation, BA promised passengers to provide them with "additional assistance, such s 

compensation ... if required to do so by any law which may apply." (R. 1, Compl., Ex. 2, 

General Conditions of Carriage~ 9b3.) This provision makes no explicit reference to EU 261, by 

name or otherwise. There is no question that BA's Conditions of Carriage do not expressly 

incorporate EU 261 and no provision of the contract ever mentions this regulation. Unlike the 

plaintiffs in L(neas Aereas de Espafia, the Polinovsky Plaintiffs have not and cannot identify a y 

provisions in BA' s Conditions of Carriage explicitly providing that BA "agreed to pay 

compensation as established in EU 261." 2011 WL 3166159 at *3 (emphasis in original). 

At oral argument, Plaintiffs' counsel took the position that the differences between the 

BA's Conditions of Carriage and the contract at issue in Lfneas Aereas de Espafia were 

inconsequential because Section 9b3 ofBA's Conditions of Carriage, which addresses remedi s 

for delays and cancellations, provides: "We will give you additional assistance, such as 

compensation, refreshments and other care and reimbursement if required to do so by any law 

which may apply. We will have no further liability to you." (SeeR. 49, Min. Entry; Hr'g Tr. 

7:5-24.) According to Plaintiffs, they construe BA's Conditions of Carriage to incorporate EU 

261 because Section 9b3 tracks the language ofEU 261 's title very closely. (Hr'g Tr. at 8:8-1 .) 

This is far from an enforceable promise to apply EU 261. Instead, this Court concludes that th s 

is exactly the type of generic reference that Judge Lefkow concluded would not satisfy the 

Wolens exception. Thus, this Court concludes that Plaintiffs' breach of contact claim is 

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preempted by the ADA. 

Given this result, this Court sees no need to address the other independent reasons 

asserted by BA to obtain a dismissal of this lawsuit. 

CONCLUSION 

For all the reasons stated herein, the motion by Defendant BA to dismiss Plaintiffs' 

complaint with prejudice (R. 24) is granted. The Clerk of the Court is directed to enter final 

judgment in favor of Defendant BA and against Plaintiffs. 

Dated: March 30,2012 

Entered: 

6 

Judge Ruben Castillo 

United States District Court