### BEF ORE THE DEPARTMENT OF TRANSPORTATI ON

WASHI NGTON , D.C. ) Michae l Gurevic h and Elena Gurevich )

) -v. ) DOT OST-2012- 0040 ) Compagnia Aereas Italiana, S.p.A. ) ) For mal Third Party

Complaint under ) 14 CFR 302.404 ) )

ANSWER OF ALITALI A-COM PAGNIA AEREA ITALIANA, S.p.A.
Communi cations with respe ct to this document should be addre ssed to: Eug ene F . Massamillo Richard A. Walker L awrenceMentz Kaplan, Ma ssamillo & Andrews, LL C Kaplan, Ma ssamillo & Andrews, LL C 200 West Madison S tree t - 16 Floor th 

### 70 East 55 Street - 25 Floor Chicag o, I llinois 0606

th th 

### New Y ork, New York 10022 Tel: 312-345-3000 Tel: 212-922-0450 Fax : 312-345-3019 Fax : 212_922-0530 rwalker@kmala wfirm.com emassamillo@kmalawf

irm.com lmentz@km alawf

irm.com Richard D. Mathias Zucker t Scoutt & Rasenberg er, L .L .P. 888 Seventeenth Street, N.W. Suite 700 Washington, D.C. 20006 (202) 298- 8660 Telephone rdmathias@zsrlaw.c om Counsel for Compagnia Aerea I taliana, S.p.A. April 20, 2012Answer o f Alitalia - Page ii 

### TABLE OFCONTENTS INTRODUCTION

............................................................................................................. 1 P OINT I

. ............................................................................................................................ 6 ALITALIA’S T ARIF F S FILED P URSUANT TO DOT ORDER ARE EFF ECTIVE UNTIL SUSPENDED, REJECTED OR CANCELLED

. .......... 6 A. Alitalia w as Required to F ile Tariff Rule 55, Entitled “Liab ility of

Carriers” by DOT Order

. .................................................. 6 B. No Approval by DOT is Required f or a F iled Tarif

f to Becom e Eff

ective

. ...................................................................................... 8 P OINT II

. ......................................................................................................................... 10 ANY TECHNICAL FAILURE TO COMP LY WITH T HE TARIFF P OST INGREGULATIONS CANNOT RETROACTIVELY INVALIDATE A F ILED TARIFF

. ................................................................... 10 P OINT III

. ....................................................................................................................... 12 ALITALIA MUST, AND DOES, COMPLY WITH LAWS AND REGULATIONS AP P LICABLE TO AIR TRANSPORTATION TO AND F ROM THE UNITED S TATES , REGARDLESS OF WHETH ER OR NOT ITS CONDITIONS OF CARRIAGE AP P LY TO S UCH TRANSP ORTATION

. ..................................................................... 12 P OINT IV

. ....................................................................................................................... 13 APART F ROM P ETIT IONERS’ FORMAL COMP LAINT, ALITALIA IS NOT AWARE OFANY PASSE NGER COMP LAINTS THAT T HEY WERE MISL ED

. ........................................................................ 13 P OINT V

. ......................................................................................................................... 15 RULE 55(B)(3) OFALITALIA’S FILED TARIF FCANNOT BE CONSTRUED TO PERMIT AP P LICATION OF ALITALIA’S GENERAL COND ITIONS OFCARRIA GE TO P ETIT IONERS

. ............... 15 CONCLUSION

. .............................................................................................................. 19

### BEF ORE THE DEPARTMENT OF TRANSPORTATI ON

WASHI NGTON , D.C. ) Michae l Gurevic h and Elena Gurevich )

) -v. ) DOT OST-2012- 0040 ) Compagnia Aerea Italiana, S.p.A. ) ) For mal Third Party

Complaint under ) 14 CFR 302.404 ) ) ANSWER OF ALITALI A-COM PAGNIA AEREA ITALIANA, S.p.A. Alitalia-Compagnia Aerea Italiana, S.p.A. (“A litalia”) hereby responds to the Third Party Complaint, dated Marc h 15, 2012 (hereinaf ter “F ormal Complaint”), filed by Michae l Gurevich and Elena Gurevich ( “Petitioners”) , pursuant to 14 C.F.R. § 302.405(a). 1



### INTRODUCTION Petitioners’ For

mal Complaint is part of a continuing eff ort to hold Alitalia and other airlines liable for milli ons of dollars in damag es for an alleg ed failure to voluntarily provide

2



### The document filed by

Petitioners is styled a “ Third Party Complaint.” Bec ause the 1 

### term “third pa

rty complaint” wa s previously used in the conte x t of enforcement proce eding s and wa s replac ed by the term “ formal c omplaint,” Alitalia is responding pursuant to the Rules Applicableto Enforc ement Proce eding s, Subpart D of the Depa rtment’s Rules of Prac tice in Proce eding s. SeeRules of Practicein Procee dings, 65 Fe d. Reg . 6446, 6448 (F eb. 9, 2000) ( “Theterm ‘third-pa rty complaint’ used throughout [the Department’s procedural rules] is being replac ed with ‘for mal complaint’”)

. The web site of counse l for Petitioners re quests that passeng ers c ontact them about their 2 

### “investig ation of ca

ncelled a nd/or delayed international flights.” http://www.c arney

williams.com/current/EuropeanF lightCanc ellationDelay .php. See Giannopoulos v. Iberia Lineas Aere as 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

Lufthans a AG , No. 11-780 (N .D. I ll., filed Apr 12, 2011); Volodarsky v. Delta Airlines , No. 11-782 (N .D. I ll., filed Feb 3, 2011).A nswer o f Alitalia - Page 2 

### compensation of €600 to eve ry Al italia passeng er residing in the United States whose Alitalia flight was canc elled within 14 d ay s o f i t s schedule d depar ture or was delayed for

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

provide such c ompensation. 3 

### Petitioners, orig inall y as plaintiffs in a putative class action, previously filed a complaint asser

ting a single claim for breach of contract in the United States District Court for th e No rthern District of I llinois , Gurev ich v. Compagnia Aereas Italiana, SPA, d/b/a Alitali a Airlines , No. 11-1890 (N.D. I ll., Mar. 30, 2011) (hereinaf ter “ Gurev ich v. Alitali a ”

or “ Gurev ich ”), copy att ac h ed as Exhibit 6 to For mal Complaint. In their complaint Petitioners relied upon a regulation adopted by the European Union, EU 261, which, inter alia , provides for

cer tain specifie d compensation in circumstance s including when a flight to or from an airport in the Europea n Union is canc elled less than 14 days in advanc e or (as the result of a Europea

n court decision) when such a flight is delayed for more than 3 hours. 4 

### In Gurev ich Petitioners essentially sought to have the courts in this country g ive the Europea n regulation e x trater

ritorial eff

ect. Petitioners c laimed that EU 261 wa s applicable to their flights on Alitalia beca use a portion of the E uro p ean re gulation is ref erred to in

Thereis no DOT re gulation mandatingthat passeng ers must be paid in the event of the 3 

### canc ellation of a f

light or a delay of more tha

n 3 hours. The only

DOT re gulation that mandates a

pay ment to passeng ers is for

denied boa

rdingcompensation pursuant to 14 C.F.R. Part 250. Separa

tely , DOT enforc ement policy require s car

riers to provideticket ref unds upon reque st to passeng ers who wish to cance l their trip as a result of a f light canc ellation or significant sche dule cha ng e madeby

the ca rrier . DOT Notice(Sep. 25, 2001). Sturgeon v. Condor Flugdienst GmbH , 2009 E.C.R. I -10923 (Nov. 19, 2009)

. 4A nswer o f Alitalia - Page 3 

### Alitalia’s Ge n er al C onditions of Carriag e and that Alitalia breached its contract when it failed to voluntarily

pay passeng ers the €600 spe cified by EU 261. Alitalia, however, had adopted the system in eff ect for decades in the United States under the auspice s of both the Civil Aeronaut i cs Bo ard (“CAB ”) and the Depa rtment of T ranspor tation (the “Department” or “DOT ”): tariff s require d to be filed wi th th e DO T g overn the passeng er- airline relationship and an airline’s conditions of car riag e do not apply to flights to or from the United States or to or from Canada. Ac cording ly , Alitalia filed the tariff s require d to be filed pursua nt to DOT Order, including Rule 55( B) , which provide s, 5 

### in pertinent par

t, as follows: (B ) LAWS AND PR OVI SI ONS APPL I CABLE (1) (A) THE CARRI ER S HA L L AV AIL I TSELF OF THE LIMITATI ON OF LIAB ILITY PROVIDED I N T HE CONVENTI ON FOR THE UNIFI CATI ON OF CERTAI N RULES RELATI

NG TO I NTER NATI ONAL CARRIAGE BY AIR, SI GNED AT WARS AW, OC TOB ER 12 , 1929, T H 

### OR THE PROTOCO L SI GNED AT THE HAGUE , SEPTEMBER 28 , 1955. HOWEVER, I N ACCORDANCE T H 

### WI TH ARTI C LE 221(1) OF SAID CONVENTI ON, OR S AID PROTOCOL , THE CARRI ER AGREES THAT, AS T O ALL I N T E RNA T IONAL TRANSPORTAT ION B Y T H E CARRIE R AS DEF I

NED I N THE SAID CONVENTI ON O R SAID PROTOCOL AS AMENDED BY SAID PROTOCOL , WHI CH, ACCORDI

NG TO THE C ON TRACT OF CARRIAGE, I

NC LUDES A POI

NT I N THE UNITED STATE OF AMERI CA AS A POI NT OF ORI GI

N, POI NT OF D ESTI

NATI ON, OR AGREED STOPPI NG PLACE. **** (J) FOR THE PURP OSE OF I NTERNATIONAL C A R R IA G E GO VE R

N E D B Y T H E M O N T R E A L CONVENTI ON, THE LIAB ILI TY RULES SET OUT I N T H E M O N T R E A L C O N V E N T IO N A R E F U L L Y

Notice of Ex emption from the Department’s Ta riff- FilingRequirements, DOT Doc ket 5 

### OST 1997-2050 (Oc t. 7, 1999) (hereinaf ter “Notice of

Ex emption”), attached hereto a s Exhibit 1.A nswer o f Alitalia - Page 4 

### I NCORPORATED HEREI N AND SHALL SUPERS EDE AND PREVAIL OVER ANY PROVI SI ONS OF T HIS TARIF F WH ICH MAY B E I NCONSI STENT WI TH T H O SE RULES. **** (3 ) TO THE EXTENT NOT I N CONFLI CT WI TH THE PROVI SI ONS OF PARAGRAPH (1) ...AB OVE, ALL CARRIAGE H EREU NDER AND OTHER SERVICE S PERF O RME D B Y EA CH CARRI ER ARE SUBJEC T TO: (A) APPL I CABLE LAWS (I NC LUD I NG NATI ONAL LAWS IMPLEMENTI

NG THE CON VE NTI ON OR EXTEND I

NG THE RULES OF THE CONVENTION TO CA RR IAG E W HICH I S NO T "I NTERNATIONAL CARRIAGE" AS DEF I NED I N T HE CONVENTI ON), G O V E RN M E N T R E G U L A T IO N S , O R D E R S AN D REQUIREMENTS; (B ) PROVI SI ONS SET FORTH I N THE PASS ENGER' S TI CKET; (C) APPL I CABLE TARIFF S; (D) EXCEPT I

N TRANSPORTATI ON BETWEEN A PLACE I N THE UNITED STATES AND AN Y PLACE OUTSIDE THEREOF AND AL SO BET WEEN A PLACE I N CANADA AND ANY PLACE OUTSIDE THEREOF , CONDI TI ONS OF CARRIAGE, REGULATION S AND TIMETAB LES (B UT NOT THE TIMES OF DEPARTURE AND ARRIVAL THEREI N S P ECIFIED) OF CARRI ER, WHI CH MAY BE I

NSPECTED AT ANY OF I TS OFF I CES AND AT AIRPORTS FROM WHI CH I T OPERATES REGULAR SERVI CES. Exhibit 9 to For

mal Complaint, Certified Copy of International Passeng er Gover ning Rules (“IPRG”) Tarif

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

. Depa

rtment of Transportation in eff ect on April 27, 2011, at 28-30; seeExhibit 8 to For mal Complaint, Certified Copy of International Passeng er Gover ning Rules (“IPRG”) Tarif f Rules 1, 5 and 55, filed on behalf of Alitalia-Compagnia Aerea Italiana with the U.S. Depa rtment of Tra

nsportation in effe ct on March 18, 2009, at 28-30. The languag e of Rule 55 is not new. It is virtually identical t o l an guag e that has ap p eare d for decades in airline conditions of contract. Attache d hereto as Exhibit 2 ar eA nswer o f Alitalia - Page 5 

### copies of portions of tickets issued by Air Canada (2001), Americ an Airlines (1983), British Airwa ys (1990), Easter

n Airlines (1984), J apan Airlines (1983), KLM Royal Dutch Airlines (1989), Singapore Airlines (1983), Trans World Airlines (1983) and USAir (1985), each of which has Condi t i o n s o f C o ntrac t. Paragraphs 2 and 3 of those Conditi ons provides as 6 

### follows: (2) Carriag e hereunder is subject to the rul es an d limit ations

relating to liab i l i ty established by the Warsaw Convention unless such car riag e is not “I

nterna tional Transpor

tation” as define d by that Convention. (3) To the ex tent not in conflict with the foreg o i ng car riag e and other service s perf

ormed by each car

rier are subject to: (i) provisions contained in this ticket, (ii) applicable tariff s, (iii) car rier’ s conditions of car riag e and related regulations which are made a part here of (and are available on application at the offices of car rier) , except in transportation between a p lace in the United States or Canada and any placeoutside thereof to which tariffs i n forc e in those countrie s apply

. In Gurev ich , Judg e Sharon J ohnson Coleman rec ognized that Rule 55(B )(3) of Alitalia’s filed tariff by its own terms prec luded application of Alitalia’s General Conditi ons of Carriag e to Petitioner’s breach of contract clai m . E x hibit 12 to For mal Complaint, Gurev ich v. Alitali a , slip op. at 3 (N.D. I ll., J an. 17, 2012) (“The clea r impact of the t ariff is that the conditions upon which the plaintiffs base their contract claim did not apply to their tickets”). Petitioners arg

ued, however, that Alitalia’s filed tariff s were inapplicable beca

use Alitalia did not post its tariff s pursuant to 14 C.F.R. § 221.100. The Court construed that argument as challenging the validity of Alitalia’s tariff and, there fore , dismiss ed the action

On the Air Canada ticket, the Conditions of Contract a re in the F rench languag e. The 6 

### British Airways ticket has languag e adde d to the end of Paragraph 2 a s follows: “For car riag e wholly

within the UK the provisions of the Car riag e by Air Ac t 1961 and Orders made thereunder

apply .”A nswer o f Alitalia - Page 6 

### without prejudice and g ave Petitioners the option of challengin g th e validity of the tariff before the Department.

Since a tariff

’s acc eptanc e by the Depa rtment o f T ranspor

tation cre ates a presumption of i t s v al i dity here , this court conclude s that, as an initial matter, the ta riff relied upon by

Alitalia must be held to defe at the plaintiffs’ claim s , and Alitalia’s motion to dismiss is th ere fore grante d. However, the dismiss al is without prejudic e t o their right to file an amende d complaint which either follows a ruling inval i d ating the tariff or asser ts a cause of action that avoids its impact. Id. at 4. Petitioners, consequently , filed the F ormal Complaint. I ALITALIA’S T ARIF F S FILED P URSUANT TO DOT ORDER ARE EFF ECTIVE UNTIL SUSPENDED, REJECTED OR CANCELLED A. Alitalia w a s Re q u i red to F ile Tariff Rule 55, Entitled “Liab ility of Carriers” by DOT Order. In acc ord with the almost three -dec ade long regulatory tre n d implementing dere gulation and pursuant to its authority to exempt air car riers and fore ign air car

riers from tariff filing requirements (49 U.S.C. § 40109(c) ), in 1999 the Depa rtment issued a regulation g enerally exempting airlines from filing fares tariff s applicable to fore ign air transportation in open skies marke ts, except as otherwise requir ed by the DOT. See 14 C.F.R. § 293.10. Al th ough the Depa

rtment also considere d exempting car riers from all tariff fi l i n g requirements for international passeng er transportation when proposing 14 C.F.R. Part 293 in 1997, the DOT always retained the authority to require such filings under statut e, 49

7



### Ex emption from Passeng er Ta riff- FilingRequirements in Certain Instance s, Notice of 7 

### Proposed Rulemaking , 62 Fe d. Reg . 10,758, 10,761 (March 10, 1997) (here inafter “Noticeof Proposed Rulemaking ”) ( “F or these reasons, we tentativelyconcludethat g eneral rules material settingforth g eneral conditions of ca rriag e should not be filed in official tariffs by

car riers” ) (emphasis added)

.A nswer o f Alitalia - Page 7 

### U.S.C. § 41504. Upon actually adopting the final exemption regulation i n 1 9 9 9 , the DOT explained: the Depa

rtment is exempting U.S. and fore ign air car riers from the statutory and regulatory duty to file international passeng er tariff s with D OT in ce rtain instances, subjec t to t he reimposition of the duty in specific cases wh en consistent with the pub lic intere st
. Ex emptions from Passeng er Tarif f-F iling Requirements in Certain Instance s, Final Rule, 64 Fe d. Reg . 40,654 (Jul y

27, 1999) (hereina fter “Final Rule” ) (emphasis added)

. Consist ent with the newly adopted exemption regulations, 14 C.F.R. § 293.10(e) -(f ), and the expressed DOT intent i n the Final Rule, DOT subsequently issued a Notice of Ex emption specify

ing which passeng er rules tariff s still neede d to be filed in the public interest: Under

the final rule , car

riers are also exempted f

rom the duty

to file rules tariff

s containing g ener al condit ions of car riag e, except for those rules which we have deter mined should continue to be filed for public interest rea sons. . . . The descriptions of those rules.

. .that are to continue to be filed for p ub l ic interest rea sons are set forth in Attachment B

. Notice of Ex emption, Ex hibit 1, at 1-2. The Notice of Ex emption states that “Governing rules that car riers are requ i re d to continue to file for

approval arelisted in P art B . These r ules will continue to be part of the official ta riffs....” Notice of Ex emption, Ex hibit 1, at 8. Part B lists the rules tariff s that are continued to be f

iled, in pertinent par

t, as follows: Part B. Rules to continue to befiled in offic ial tariff s. * * * * B. Sec tion I- General Rules: 1. Application of Ta

riff- - g enerally

Rule 5. * * * * 4. Def

initions - - g enerally

Rule 1. 5. L iability

of Carriers- - g enerally

Rule 55.A nswer o f Alitalia - Page 8 

### * * * * Notice of Ex emption, Ex hibit 1, at 10. Alitalia filed those require d tariff rules and relied upon the provisions of Rule 55 in Gurev ich

. B. No Approval by DOT is Required for a F iled Tariff to Becom e Ef fective. Petitioners here attempt to avoid the effec t of Rule 55 by claimingthat, beca use of DOT inaction, Rule 55 was not approve d and in the absenc e of approval the tariff is not eff ective. See For

mal Complaint at 10-12. Alitalia is not awa re of any proce dural mecha nism for obtaining DOT “appr o v al ” o f a tariff or any regulation or decision that DOT inaction wi th respe ct to a tariff filing renders the tariff ineffe ctive. The only leg al or regulat o ry
re qu i rement for a tariff to become eff ective is that it be filed with the appropriate federa l ag ency and not be suspended, reje cted or canc elled by that ag ency . The “filed tariff ” doctrine has longbeen recognized by the DOT a

nd its predec essor the CAB

. Briefly, that doctrin e s t ates that fares or rate s in a tariff which is eff ective on any g iven day are the l aw ful fares or rate s for that day, no matter what an ag ency or court might ultimately decide about the lawfulne ss of the fares

. T he regulated business may in g eneral operate at those fares or rate s without a conting ent obligation to make ref unds should lawful fares ultimately turn out to be lower. SIFL, Common-Fares Rec alculation , 92 C.A.B. 899, 905 (1981). It is also a principle long

rec ognized by the courts. See St. Paul Ins. Co. v. Venezuelan Int’l Airways, Inc. , 8 0 7 F.2d 1543, 1548 (8th Cir. 1987) (“validly filed tarif fs . . . [have] the forceand eff ect of a statute and binds both the car

rier and the shipper with theforc e of la w”) ; Vogelsgang v. De lta Air Lines, Inc. , 302 F.2d 709, 712 ( 2d Cir. 1962) (“thesame rule has been applied to tariff s of air car riers filed with the Civil Aeronautics Boa rd”) ; Panzer v. Cont’l Airlines, Inc. , 398 F.A nswer o f Alitalia - Page 9 

### Supp. 2d 529, 531-32 (S.D. Miss. 2005) (“[t] ariff s that are validly filed with th e DOT are considere d binding l aw between an airline and its passeng ers” ); Ill. Produce Int’l, Inc. v. Reliance Ins. Co. , 388 F. Supp. 29, 35 (N.D. I ll. 1975) (F lying Tig er’ s tariff “g overning the

car riag e of carg o applicable between points in the United States and points in Asia

. . . [has] the full forc e and e ffe ct of law as provided by 49 U.S.C. § 1373 [predece ssor to 49 U.S.C. § 41504]”). L ack of form al approval or DOT inaction does not prevent application of the filed rate doctrine. Rather, in order to invalidate a filed tariff there are cer tain proce dural steps that must be followed to ca

ncel, suspend or

reje ct a f iled tariff

. Pursuant to statute, the DOT has th e ab i l i ty to suspend, canc el or reje ct tariff s for fo reign air transportation. 49 U.S.C. § 41509. After a hearing the Secretary may decide whether an exis ting or newly filed tariff is lawful, 49 U.S.C.A. § 41509(a) (1), and pending such a heari n g th e S ecretar y may suspend an exis ting or newly filed tariff

. 49 U.S.C.A. § 41509(b). With or without a hearing, the Secretary may canc el or reje ct an exis ting 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 , canc elling or reje ctingAlitalia’s filed tariff Rule 55. Moreover, even if the DOT did decide to suspend or canc el Alitalia’s filed tariff Rule 55, Alitalia would be entitled to f ile a tariff rule dealing with Liability of Carriers that is in eff ect for any other air car

rier. 49 U.S.C.A. § 41509(c) (3). Upon information an d b el i ef, however, numerous air car riers and fore ign air car riers have filed tariff

s that are substantively equivalent t o Rule 55 and the DOT would be require d to suspend or canc el those equivalent tariff rules of other car riers in order to prevent Alitalia from re- filing a tariff Rule 55 that is identical in substance to what is in Ali talia’s cur rently filed Rule 55.Answer o f Alitalia - Page 1 0 

### I f P etitioners’ argument is acc epted then all tariff s filed with, but not approve d by , th e DO T are ineffe ctive. Any such result would be inconsistent with the provisions o f 4 9 U.S.C.A. § 41509 and the Notice of Ex emption. Moreover, such a result would not only be

a surprise to car

riers filing tariff

s but also overturn decades of CAB and DOT prec edent and

a centur y of co urt ca ses upholding the filed rate doctrine involving numerous regulated industries. Petiti oners a

rgument should be reje cted in all re spects.

II ANY TECHNICAL FAILURE TO COMP LY WITH T HE TARIF FP OST INGREGULATIONS CANNOT RETROACTIVELY INVALIDATE A FILED TARIF F Alitalia acknow ledg es that its General Conditi ons of Carriag e and its website did not

co nt ai n any ref

erence to its filed tariff

. It now does. Prior to filing this Answer , Alital i a inserted a conspicuous Notice to prec eding its General Conditi ons of Contract, which provides: NOTICE THE PROVI SI ONS ON THE PASS ENGER’S TI CKE T AND C O N D IT IO N S OF C A R R IA G E A R E A P P LIC A B LE UN LE S S I NCONSI STENT WI TH OUR TARIFF S OR APPL I CABLE LAW, I N WHI CH EVENT SUCH TARIFF S OR LAW SHALL PREVAIL

. Copy of pag e attached hereto as Exhibit3. The Notice languag e is virtually identical to the notices or conditions of other airlines that their conditions of car riag e are not applicable to transportation to or from the United States or Canada

. See, e.g., Americ an Airlines Conditi ons of Carriag e at 1; Delta Conditi ons of Contract ¶ 3; Lufthansa Conditi ons of Carriag e ¶ 2.4; SAS Conditi ons of Carriag e ¶ 2.4; Swiss Conditi ons of Carriage ¶ 2.5; U. S. Airwa ys Conditi ons of Contract, ¶ 3; Virg inAnswer o f Alitalia - Page 1 1



### Atlantic Conditi ons of Carriag e ¶ 2.4.1, attache d hereto as Exhibit 4. Such Notice eliminates any cl ai m that Alitalia continues to mislead its customers, as alleg ed in the For mal Complaint. Alitalia is not awa

re of any DOT regulation that renders a f iled tariff ineffe ctive or specifie s that a filed tariff cannot be relied upon by a car rier if the tariff posting requirements

are not me t, a s arg

ued by Petitioners. This is in sharp contrast to the regulations a pplicable to terms incorpora

ted by ref

erence. By regulation, a car rier m ay not rely upon terms incorpora ted by ref erence unless notice has been provided to the passeng er. 14 C.F.R. § 253.4(a) (“a

n air car ri er may not claim the benef it as ag ainst the passeng er of, and the passeng er shall not be bound by , any contract term incorporated by ref erence if notice of the term has not been provided to that passeng er in acc ordanc e with this part” ). No simil ar or equivalent provision is applicable to filed tariff s. Acc epting Petitioners’ argument, there fore , would eff ectively result i n a rulemaking without complying with the requirements of the Administrative Procedure Act, 5 U.S.C. § 553. That arg ument should, consequent ly , be reje cted. Providing the indicated Notice will serve as an appropriate stopga p measure to ref

lect the applicability of Alitalia’s filed tariff s until Alitalia has an opportun i ty to amend in a considere d manner its Conditi ons of Carriag e and eliminate Petitioners inappropriate eff ort to collect milli ons of dollars from car riers based upon a Europea n regulation that is not applicable in the United States. In Polinovsky v. British Airways , No. 11-779 (N.D. I ll., Mar. 30, 2012) (de cision dismis sing c omplaint with prejudice), thecourt dismissed the putative class action brought by plaintiffs (who were also represente d by counsel for the Petitioners here ) because British Airwa ys’ C onditions of C arriag e ma d e n o re fe rence to EU 261. TheAnswer o f Alitalia - Page 1 2



### court said: There is no question that BA ’s Conditi on s o f C arriag e do not

expressly incorporate EU 261 an d n o p rovision of the contract ever mentions this regulation. Unlike the plaintiffs in Lineas Aereas de España , the Polinovs ky Plaintiffs have not and cannot identif y any provisions in BA ’s Conditi ons of Carriag e expli citly providing that BA “agree d to pay compensation as established in EU 261 .” 2011 WL3166159 at *3 (emphasis in original). Polinovsky , slip op. at 5 (citation in orig inal), copy attache d as Exhibit 5. Alitalia respe ctfully sug g est s th at i t should have the opportunity to modify its General Conditi ons of Carriag e to take the Polinovsky decision into acc ount. III ALITALIA MUST, AND DOES, COMPLY WITH LAWS AND REGULATIONS AP P LICABLE TO AIR TRANSPORTATION TO AND F ROM THE UNITED S TATES , REGARDLESS OF WHETH ER OR NOT ITS CONDITIONS OF CAR RIAGE AP P LY TO S UCH TRANSP ORTATION Alitalia’s tariff Rule 55 is expli cit and provides that transportation to which the tariff applies is g overne d by

applicablenational laws a nd regulations. ALL CARR IAGE HEREUNDER AND OTHER SERVI CES PERFORMED BYEACH CARRIER ARE SUBJEC T TO: (A ) APPL I CABLE LAWS (I NCLUDI NG NATI ONAL LAWS IMPLEMENTI

NG THE CON VE NTI ON OR EXTEND I

NG THE RULES O F THE CONVENTI ON TO CARRIAG E W HICH I S NO T "I NTERNATIONAL C ARRIAGE" AS DEF I NED I N THE CONVENTION), G O V E RN M E N T R E G U LA T IO N S , O R D E R S AN D REQUIREMENTS Exhibit 9 to Formal Compliant at 30. In the United States applicable g overnmental regulations reg arding the trea tment of passeng ers are extensive a nd include, inter alia , denied boa rding compensation ( 14 C.F.R. Part 250), the disclosure of code share information (14 C.F.R. Part 257), the adoption of andAnswer o f Alitalia - Page 1 3



### adherence to a conting ency plan for lengthy tarmac delays (14 C.F.R. § 2 5 9

. 4), the disclosure of chang e of g aug e (14 C.F.R. P art 2 5 8 ), the adoption of and adherence to a customer service plan (14 C .F.R. § 259.5), the processing of consumer ref unds (14 C.F.R. Part 374), and the acc ommodation of passeng ers with disabiliti es (14 C.F.R. P art 382). In addition, A litalia is require d to a nd does comply with D OT’s various enforcement policie s relating to the statutory prohibition ag ainst unfair and deceptive practices adopted pursuant to 49 U.S.C. § 41712. Those policies are ref lected in 1 4 C

. F.R. Part 399, various consent order s and industry notices and concern, inter alia , misrepre sentations reg arding confirme d space on flights, price advertising and opt-out provisions, require d notices for bag g ag e charg es and other fee s, the appli cat i o n of uniform bag g ag e allowanc es and fee s across a passeng er’ s journey, and the imposit ion of (and disclosure of conditions in connec tion with) priceincre ases. The statutory and regulatory requirements summarized above apply to Alitalia, even where its General Conditi ons of Carriag e are not applicable to particula r transportation. And

no tariff can, and Alitalia’s tariff Rule 55 does n o t p urp o rt to, excuse a car rier from complying w ith them. As a consequence, whether or not any car rier’ s conditions of car

riag e are applicable to transportation between a place in the Unit ed S tates and any place outside there of is immaterial to the question of wheth er passeng ers will rec eive the benef it of protec tions mandated by

the DOT. IV APART F ROM P ETIT IONERS’ FORMAL COMP LAINT, ALITALIA IS NOT AWARE OFANY PASSE NGER COMP LAINTS

THAT T HEY WERE MISL EDAnswer o f Alitalia - Page 1 4 

### The practical eff

ect of applying filed tariff Rule 5 5 to Petitioners’ transportation is to render the material on A litalia’s web site, including the General Conditi ons of Carriag e, equivalent to a cu s t o m er service plan that is not require d to be incorporated into the passeng er’ s contract of car riag e and is not contractually binding upon Alitalia in the context of a private right of action. See Enhanc ing Airline Passeng er Protections 76 Fe d. Reg

. 23110, 23131 (Apr. 25, 2011) (“the Depa rtment has decide d not to adopt the proposal requiring U.S. and fore ign car

riers to include their conting ency plans and customer service p l an s in their contracts of car

riag e”)

. Nevertheless, apar t from not voluntarily providing compensation to passeng ers under EU 261, Alitalia abides by the terms of its General Conditi ons of Carriag e and customer

serviceplan. When an Ali talia flight is cance lled or a f light is delayed for

any substantial period of time, Alitalia makes ever y eff ort to acc ommodate its passeng ers in ac corda nce with applicable DOT regulations a nd beyond. Alitalia reprotects its passeng ers on other Alitalia flights and , when appropriate, on flights of other airlines. I f nece ssary and appropriate, Alitalia will provide, or re i mb urs e its passeng ers for, meals and hotel acc ommodations to ameliorate the interr

uption in a passeng er’ s travel plans. The service Alitalia provides to its customers is apparently satisfac tory in view of the fac t that Alitalia is not awa re of any informal complaints to the DOT by passeng ers with respe ct t o the ca

ncellation or de lay

of Alitalia flights or complaining that Ali talia does not abide by its General Conditi ons of Carriag e or customer service plan. From a prac tical standpoint, there is no rea son to believ e th at th e technical failure to comply with the regulatory posting requirements has adversely aff ecte d any signific ant number of Alitalia’s passeng ers.Answer o f Alitalia - Page 1 5 

### Contrary to what Petitioners would have the DOT conclude , passeng ers are not without reme dy under the tariff

. Rule 55(C)(1) of Alitalia’s filed tariff provides, in pertinent part, a s follows:

CARRIER IS NOT L I AB L E F OR ANY DEATH, INJURY, DELAY, LOS S, OR OTHE R DAMA GE OF WHATSO EVER NATURE (HEREI

NAF TER I

N THI S TARIFF COLLECTIVELY REFERRED TO AS "D AMAGE") TO PASS ENGERS OR UNCHEC KE D BA GG AG E AR I S I NG OUT OF OR I N C ONNECTI ON WI TH CARRIAGE OR OTHER SERVI CES PERFORMED B Y CARRIE R I N CIDENTAL THERETO, UNLESS SUCH DAMA GE IS CAUSED BY THE NEGLIGENCE OF CARRIER. Rule 55(C)(1) (empha sis added) , Exhibit 8 to For mal Complaint at 31; Exhibit 9 to For mal Complaint at 30-31. Thus in those rare ins t an ce s where the applicable international convention does not provide a reme dy for passeng ers, Rule 55(C)(1) of Alitalia’s filed tariff provides a me an for

passeng ers to re cover

provabledamag es. 8 

### V RULE 55(B)(3) OFALITALIA’S FILED TARIF FCANNOT BE CONSTRUED TO PERMIT AP P LICATION OF ALITALIA’S GENERAL COND ITIONS OFCARRIA GE TO P ETIT IONERS In their fi n al argument Petitioners seek to avoid the eff ect of Rule 55(B )(3) (D) by reque sting that the DOT somehow construe the rule con s i s t entl y with Alitalia’s General Conditi ons of Carriag e. That argument, however, require s that the DOT ignore the plain

Petitioners, however , areapparently not satisfied with this potential remedy

. 8 

### Presumably

that dissatisfaction stems from the likelihood they would not be able to pursue a class ac tion claim based on ne g ligence a nd individualiz ed proof

of ac tual, compensatory

damag es. See , e.g. , Cruz v. American Airlines, Inc

. , 356 F.3d 320, 331 (D.C. Cir. 2004) (a ffirmingdistrict court’s re fusal to certify class of pa sseng ers c laiming damag es for

lost lugg ag e bec ause “the class members’ damag es claims presented individualiz ed issues not common to all class member s.”).Answer o f Alitalia - Page 1 6



### meaning of the languag e of the tariff : languag e th at has been understood for decades to ref lect that tariff

s g overne d the passeng er- airline relationsh i p i n the United States and Canada while an airline’s conditions of car riag e are applicable elsewhere. See Exhibits 2 and 4. And any

interpretation by the DOT has to ta ke into c onsideration that the identical tariff langua ge has been filed with the Canadian Transpor tation Administration. Thus, any int er p re t at i o n of the tariff languag e that depar ts from the plain meaning of the languag e could very well resul t i n an inconsistent understanding and application of the same tariff languag e betwe en the U.S. and Ca nada. Rule 55(B )(3) (D) in unequivocal terms states that Alitalia’s co n ditions of car riag e do not apply to Petitioners’ transportation. There is no way to avoid a literal reading of that straightforwa

rd language. Clearly, Judg e Coleman in Gurev ich agree d. I f she thought otherwise there would be no rea son fo r h er t o have ref erred the tariff to the DOT to deter mine its validity beca

use doing so would be unnece ssary . Petitioners’ argument that the DOT should ignore a literal reading of the languag e and the interpre tation place d upon it by Judg e Coleman should be rejec ted in all respe cts. Petitioners’ argument that Alitalia’s tariff Rule 55(B )(3) (B ) somehow reinstates the conditions of car

riag e would also require ignoring the primacy of the t ariff languag e over contractual provisions. It i s we l l -s ett led that a tariff filed with the applicable regulatory ag ency has the forc e and eff ect of law. AT& T v. Cent. Office Tel., Inc. , 524 U.S. 214, 222 (1998) (telec ommunications; “the centur y-old ‘filed rate doctrine,’ associate d with the I CA [Interstate Commerce Act] ta riff provisions [under which ‘the rate of the car rier duly filed is the only lawful charg e’] applies to the Communi cations Act as we ll”); Lowden v. Simonds-Shields-Lonsdale Grain Co. , 306 U.S. 516, 520 (1939) (railroads; “Until chang ed,Answer o f Alitalia - Page 1 7



### tariff s bind both car

riers and shippers with the forc e of law”)

. For example, in Dreamsc ape Design, Inc. v. Affinit

y Network, Inc. , 4 1 4 F.3d 665 (7th Cir. 2005), plaintiffs brought a putative class action ag ai n s t Affinity , a telephone communications car rier, alleg ing that Affinity violated the I llinois Consumer Fraud Act by adver tising 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 b ec au se Affinity had charg ed the rate listed in its tariff filed with the Fe deral Communications Commi ssion. Id. at 668. The Seventh Circuit

rec ognized that “cour

ts may not awa

rd relief (whe ther in the form of damag es or restitution) that would have the eff

ect of imposing any rate other than that ref lected in the fil ed tariff” and there fore aff

irmed the trial court’s dismiss al. Id. at 669. The court also noted that “[a]lthough it may be tempting to view a filed tariff as simply another contract enforcea ble under state law, this court and others have rec ognized that tariff s 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. Cen ter f or Conditi oning & Health v. Qwest Communications Int’l, Inc. , 294 F.3d 924, 925 ( 7th Cir. 2002). T h e regulatory scheme reg arding tariff s for fore ign air car

riers, such as Alital i a, i s virtually identical to the tariff reg ime of the Fe deral Communi cations Act, 47 U.S.C. § 203, and the former tariff scheme of the Interstate Commerce Act, 49 U.S.C. § 10762 (1994) (repeale d 1995). As p rescribed by statute, a fore ign air car rier, like a telecommunications provider or other ty

pe of common car

rier, is require d to file with the appropriate commission (here, the Secretary of Transpor tation), publish and keep open to the p ub l i c tariff s that presc ribe the actor ’s price s and other information as require d. Compare 49 U.S.C. § 41504 (foreign air transportation) with 49 U.S.C. § 1076 2 (a )( 1) (repeale d 1995) (interstateAnswer o f Alitalia - Page 1 8



### transportation) and 47 U.S.C. § 2 0 3 (a ) (telec ommunications). In fac t, the languag e of 49 U.S.C. § 41504(a) is nearly identical to the languag e contained in the Federal Communi cations Act’s tariff scheme , 47 U.S.C. § 203(a) and is identical in substance to the languag e contain ed i n the Interstate Commerce Act’s former tariff scheme , 49 U.S.C. § 10762(a) (1)- (2) (repeale d 1995). In addition, a fore ign air car rier, like a telecommunications

car rier or another common car rier prior to repe al, is not permitted to deviate from their filed tariff s. Compare 49 U.S.C. § 41510(a) , with Interstate Commerce Act, 49 U.S.C. § 10761(a) (repeale d 1995), and Fe deral Communi cat i o n s Act, 47 U.S.C. § 203(c)

. The pertinent languag e for

bidding deviation in each respec tive reg ime is also remar kably simil ar. Acc ording ly , filed tariff

s take prec edenc e over contra ry provisions of any conditions of contract or conditions of car riag e. E.g. , Denby v. Seaboard W orld Airlines, Inc. , 737 F.2d 172, 186 (2d C ir. 1984) (“any argument of p l aint iff on the basis of paragraph 10 of the air way bill would indeed be fore closed, since it is common ground that in the event of conflict between the air way

bill and the tariff

, the latt er p re vails”). As emphasized by the Seventh Circuit, “[t] his is so even if a car rier intentionally misrepre sents its rate and a customer relies on the misrepre sentation.” Dreamsc ape Design, Inc. v. Affinit y Network, Inc. , 414 F.3d at 669. Petitioners’ arguments with respe ct to the conditions appea ring on a ticket, there fore , should be reje cted in all re spects.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 O ST-2012-0040



# IN DEX O F EX HIBI TS

I Notice of

Ex emption from the Department’s Ta riff- FilingRequirements, DOT Doc ket OST 1997-2050 (Oc t. 7, 1999)

II Airline Ticket Condit ions of Contract

III Alitalia General Conditions of Carriag e Pag e 1 - with Notice (Apr . 20, 2012)

IV Airline Web Site Condit ions of Contract

V Polinovsky v. British Airways , No. 11-779 (N .D. I ll., Mar. 30, 2012)

# EXHIBIT 1Case: 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. aspCase: 

## 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 ·- NoCase: 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

--- B No 432 Georgia 1--429 -Germany A No

### ~9 - No Ghana B 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**-~** --· No B 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--

.. No 8

---- 546 Mauritius (UK} 

## c Yes 547 Mayotte (France) French Overseas Department: See France

·- --· 148 Mexico B No 810 Micronesia 8 No 1-----c-:::c·- - - No

457 Moldova B 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- No 259 ·Netherland Antilles A

### ~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 faresCase: 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 faresCase: 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 SectionCase: 1: 11-cv-01890 Document#: 15-2 Filed: 06/07/11 Page 10 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 3NOTICE 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 4American Airlines Conditions Of Carriage On AA.com Page 1 of 12

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## 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.

http: 

### Ilwww. a a. com/i 18n/customerService/customerCommitment/condi tionsOfCarriage.j sp 4/12/2012Conditions of Carriage Page 1 of 1

SkyMiles# or Email PIN Last Name Log In> [] Remember**~te** Skyt4iles #or PIN reminder Join SkyMiles > 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.



### http://www.swiss.com/web/EN/general/footer_links/conditions_of_carriage/Pages/article_

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### 4/12/2012US Airways 

## I Conditions of contract Page 1 of 1

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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.

Company info 1 Careers I Privacy/security I Settings I Site map I Travel agents I FAOs 

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http:/ /flights. usairways, com/ en- US/aboutus/ customersfirst/ conditi onsofcontract.html 3/22/2012Atiicle 2 - Virgin Atlantic Page 1 of2

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 () Round Trip · One Way Where are you flying from?**[~~~~~-~i~~=-:~~-~~EJ** Going to?**[~~~ y~-~~~~~~~=~-E**  Departing ddlmmlyy Returning ddlmm/yy

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### /wvvw. virgin-atlantic. com/en/gb/bookflightsandmore/conditionsofcarriage/carriage2 

### .j sp 4/12/2012

# 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 aCase: 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,

4Case: 1:11-cv-00779 Document#: 53 Filed: 03/30/12 Page 5 of 6 PageiD #:579

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