Irvin H. Mason v. Kenneth Belieu Appeal of Pan American World Airways, Inc

EDWARDS, Circuit Judge

(concurring in part and dissenting in part).

I am pleased that the court has reached unanimous agreement in this case that:

* * * nothing in the statute or relevant cases requires absolute exclusion of all injured parties except passengers from the remedial provisions of section 404(b). The all-encompassing definition of “person” found in section 101 3 evi *223 dences a desire to provide widescale protection against discriminatory rates and practices. We therefore agree with cases finding that travel agents are shielded under 404(b) against unjust application of rates, William Becker Travel Bureau, Inc. v. Sabena Belgian World Airways, supra [13 Av.Cas. 17770 (S.D.N.Y. May 1, 1975)] and that nonpassengers may not be subjected to racially discriminatory restaurants and restrooms in airports. United States v. City of Montgomery, supra, 201 F.Supp. at 594. Assuring just rates and equal access to airline facilities requires a broader reading than protection for passengers only.

I also join the majority holding that the statute in question should not be construed to allow award of derivative damages for Mrs. Mason’s mental distress arising from Pan American’s failure to carry her husband on the flight back to Panama for which he was ticketed.

Here, however, the District Court also based his award of damages upon direct injury to Mrs. Mason. He found that Mrs. Mason’s complaint stated a cause of action 1 under the discrimination provision of the Federal Aviation Act which follows:

(b) No air carrier or foreign air carrier shall make, give, or cause any undue or unreasonable preference or advantage to any particular person, port, locality, or description of traffic in air transportation in any respect whatsoever or subject any particular person, port, locality, or description of traffic in air transportation to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever. Pub.L. 85-726, Title IV, § 404, Aug. 23, 1958, 72 Stat. 760 .

Federal Aviation Act of 1958, 49 U.S.C. § 1374 (b) (1970).

Noting the breadth of the language employed by Congress above in prohibiting “unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever,” and further noting the damage figure of $200 found by the District Court, I cannot say that the District Judge’s finding of discrimination and disadvantage to Mrs. Mason was “clearly erroneous.” As the wife of a fare-paying passenger, she was certainly entitled to meet him on his scheduled arrival at Tucaman Airport. She was also an invitee on Pan American’s premises who had a right to inquire concerning why her husband was not on his scheduled Pan American flight. Her testimony, as quoted by the District Judge, “that the clerk did not answer her question and simply walked away into a back room” stands undisputed on this record. Such an unexplained failure to respond to a normal question would, as I believe the District Judge held, “disadvantage” any spouse, even without the highly emotional background of this case.

I can see no valid reason under these facts for failing to imply a cause of action arising under the federal question, diversity, and interstate commerce jurisdictions, 28 U.S.C. §§ 1331 , 1332 and 1337 (1970), as did the District Judge. Nor can I see any valid distinction (given the “unreasonable disadvantage” language of the statute) between implying a cause of action here and doing so in the other nonpassenger cases which the majority opinion approves. As to this aspect of the case, I respectfully dissent.

“ ‘Person’ means any individual, firm, copartnership, corporation, company, association, joint-stock association, or body politic; and includes any trustee, receiver, assignee, or other similar representative thereof.” 49 U.S.C. § 1301 (27) (1970).

. The District Court founded its jurisdiction to 1332 and 1337 (1970). consider the claim upon 28 U.S.C. §§ 1331 ,