Boilerplate contractual language guaranteeing compliance with aviation laws does not incorporate regulations requiring airlines refund passengers within seven days of a flight cancellation.
Contractual obligations to provide carriage to passengers may be discharged when performance is rendered impracticable or impossible by the coronavirus travel ban.

Since the coronavirus pandemic started, there have been dozens of class actions brought against airlines by passengers seeking refunds and damages for flights cancelled due to COVID-19 and the related travel ban.

But on September 18, 2020, the Central District of California issued an order dismissing a putative class action against Norwegian Air without leave to amend. Daversa-Evdyriadis v. Norwegian Air Shuttle, No. 5:20-cv-00767-JGB-SP (Sept. 17, 2020), ECF No. 32. This is the first decision on a motion to dismiss rendered in any of the COVID-19-related flight cancellation cases.1

Like many other passengers who have brought putative class actions against airlines challenging their refund practices in the wake of COVID-19, the plaintiff in Daversa brought a single claim for breach of contract. She claimed that—although she had received a refund for her cancelled flight—the refund came too late. She argued that the delay violated DOT regulations that require a refund within seven days of the cancellation, and that those regulations were incorporated into Norwegian Air’s contract of carriage.

The Court rejected this argument. It held “that boilerplate contractual language guaranteeing compliance with international or domestic aviation laws does not incorporate extraneous law into the terms of an airfare contract.” It explained that a contract provision “that identifies an exact regulation or statute and guarantees compliance with it” is generally sufficient to incorporate that law, but that a “contract that broadly vows to abide by all applicable laws” is not.

In the alternative, the plaintiff argued that Norwegian Air breached its contractual duty to carry customers by cancelling her flight. The Court rejected this argument as well. It found that Norwegian Air’s contractual obligation to provide carriage to passengers “was discharged because performance was rendered impracticable by the [coronavirus] travel ban.”

The plaintiff also argued that California Civil Code section 1657 required that Norwegian Air refund her within a reasonable amount of time. The Court disagreed. Norwegian Air’s contract of carriage does not include any provision requiring that it refund passengers within a certain period of time, and the plaintiff’s attempt to add that obligation to the agreement through state law was preempted by the Airline Deregulation Act (ADA).

The Court therefore granted Norwegian Air’s motion to dismiss and refused to give the plaintiff leave to amend her claims—or add a rescission claim, which would likewise be preempted by the ADA.

While the Court’s decision was based primarily on the specific language in Norwegian Air’s contract of carriage, it nevertheless provides support for other airlines moving to dismiss coronavirus cancellation and refund litigation—as well as broader guidance on the impossibility defense relating to the coronavirus pandemic—and may serve as a guide to other courts as they consider those motions.

1 The authors represented Norwegian Air in this litigation.

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