Four Southwest Airlines passengers may have taken a legal flight of fancy by filing a $5 million class action against the airline for selling them tickets to fly on planes it had not inspected properly.

The passengers' claims arise in large part from Southwest's “contract of carriage,” which provides that “All transportation is sold and all carriage is performed subject to compliance with all applicable laws and governmental regulations.”

The “assurance of compliance with safety directives,” the complaint filed last week in Alabama says, is “part of the basis of the bargain for ticket sales between Southwest Airlines and its passengers” and the airline is therefore liable for

selling tickets for, and accepting monies for, travel in airplanes which had not been inspected and/or maintained in compliance with governmental regulations.

The proposed class would include all those who flew between January 2002 and March 2008 on Southwest planes and, according to the suit, class members are entitled to ticket refunds and damages. FAA officials have said Southwest operated more than 59,000 flights between June 2006 and March 2007 on planes that had not been inspected for fuselage cracks.

The case is another sign of consumer exasperation with the airline industry. But there appears to be no precedent for a breach of contract of carriage claim against an airline when a passenger has not suffered a flight delay, cancellation or some other injury resulting from defective performance of the contract.

“How do you justify a refund when you took the flight and nothing went wrong?” asked one reader of The Consumerist website.

The plaintiffs also allege a tort claim of negligent and reckless operation of an aircraft, arguing that Southwest breached its duty “not to transport passengers on airplanes that were flying illegally.”

“As a proximate result of the negligence, Plaintiffs and members of the class have been damaged in their property,” the suit says.

But assuming Southwest has such a duty, how, again, can there be any damages when passengers got what they paid for? In effect, the plaintiffs are proposing a theory of recovery that says airlines are strictly liable for breaching a contract of carriage regardless of performance and of whether the plane was actually unsafe.

The FAA last month imposed a fine of $10.2 million on Southwest, the largest in aviation history, for misleading officials about fuselage safety inspections.

By Matthew Heller
4/20/08