Opinion
No. 3276/14.
11-20-2014
Jacob CHEN, Plaintiff, v. CHINA EASTERN AIRLINES CO., LTD., Defendant.
Jacob Chen, Esq. (Self Represented), New York. Riyaz G. Bhimani, Esq., Eckert Seamans Cherin & Mellott LLC., White Plains, for defendant China Eastern Airlines Co., Ltd.
Jacob Chen, Esq. (Self Represented), New York.
Riyaz G. Bhimani, Esq., Eckert Seamans Cherin & Mellott LLC., White Plains, for defendant China Eastern Airlines Co., Ltd.
Opinion
JAMES E. D'AUGUSTE, J.
Plaintiff Jacob Chen moves for partial summary judgment on the issue of liability arising from Defendant China Eastern Airlines Co., Ltd.'s (“China Eastern”) alleged breach of contract of carriage. China Eastern also moves for summary judgment to dismiss the complaint, asserting that it has not breached its contract. For the reasons stated herein, Chen's motion for partial summary judgment is denied, and China Eastern's motion for summary judgment is granted.
Factual and Procedural History
Chen purchased a ticket from Vayama.com containing flight coupons for travel on six consecutive China Eastern flights. The ticket is governed by China Eastern's contract of carriage, which consists of China Eastern's General Conditions of International Carriage for Passengers and Baggage and China Eastern's International Passenger Rules and Fares Tariff No. MU–1. Chen flew on the first two China Eastern flights and then took a flight on a different airline for an excursion to a nearby province in China. Chen scheduled the excursion so as to return on time to board the next China Eastern flight. However, Chen alleges that he was prevented from returning on time and boarding the next China Eastern flight in sequence due to a force majeure in the form of a tropical storm, despite the fact that the China Eastern flight departed on time. In accordance with its contract of carriage, China Eastern cancelled the remaining flights on Chen's ticket after he failed to use one of the flight coupons in sequence.
On February 3, 2014, Chen commenced this action for breach of contract because he was prevented from boarding a China Eastern flight that he purchased as part of the ticket after having missed an intermediate flight. On May 2, 2014, Chen moved for partial summary judgment on the issue of liability against China Eastern, alleging that the airline is liable for any additional costs he incurred in booking a replacement flight. On June 2, 2014, China Eastern moved for summary judgment to dismiss the complaint, asserting that Chen had no right to travel on any of the remaining flights he had booked after he missed one of the flights in the sequence.
Discussion
Chen was bound by China Eastern's contract of carriage as a matter of law because the terms of the contract are incorporated by reference into the purchased ticket. Dennis v. Delta Air Lines, Inc., No. 10–CV–973 (DLI)(LB), 2011 WL 4543487, at *2 (E.D.NY Sept. 29, 2011) ; Reed v. Delta Airlines, Inc., No. 10–CV–1053 (JGK), 2011 WL 1085338, at *3 (S.D.N.Y. Mar.23, 2011). Chen received notice that China Eastern's contract of carriage applied to his ticket because Vayama.com specifically states that the purchaser is “responsible for ensuring that [any] purchases abide by the terms or conditions of purchase ... including terms or condition of purchase set forth in an air carrier's fare rules or contract of carriage.” China Eastern Aff. in Opp'n Exh. C at 2. Chen also received notice by electronic ticket confirmation, which stated that “[t]he agreement between the airline and the passenger incorporated by reference the terms of the airline's contract of carriage.” Id. Exh. A (Exh. A to the Complaint at 2). Further, a copy of China Eastern's conditions of carriage was available for Chen's inspection at the airport from which he departed. Id. ¶ 36. Accordingly, China Eastern “complied with federal regulations for incorporating terms into the contract of carriage.” Dennis, 2011 WL 4543487, at *2.
The contract of carriage requires that each flight coupon must be used in sequence and Chen's failure to comply with this requirement permitted China Eastern to refuse carriage on any additional flights. Ji Aff. Exh. A §§ 3.1.7, 10.1; id. Exh. B Rule 65(A)(4), (E). Because it is undisputed that Chen did not fly on the third sequential flight of the ticket, and thus did not comply with China Eastern's contract of carriage, China Eastern acted within its rights and is not liable to Chen for breach of contract. See Reed, 2011 WL 1085338, at *3. Therefore, Chen's motion for partial summary judgment is denied and China Eastern's motion for summary judgment is granted.
Additionally, this Court finds that Chen's force majeure argument fails because it is inapplicable to China Eastern's alleged breach. Force majeure is a defense by a non-performing party to a claim for breach of contract. See Rochester Gas & Elec. Corp. v. Delta Star, Inc., No. 06–CV–6155 (CJS)(MWP), 2009 WL 368508, at *7 (W.D.NY Feb. 13, 2009). Here, China Eastern, the allegedly non-performing party, did not raise the defense of force majeure. Moreover, even if force majeure was applicable, Chen's failure to take the missed flight due to his inability to timely return from a separately planned excursion, involving an entirely separate airline, lacks any merit, particularly because the China Eastern flight departed as scheduled.
Conclusion
For the reasons stated above, Chen's motion for partial summary judgment is denied and China Eastern's motion for summary judgment in its favor is granted. The Clerk shall enter judgment accordingly. This constitutes the decision and order of this Court.