Stephen Rosenthal
Stephen Rosenthal (J. Albert Diaz)

A retired record producer who claims he suffered a heart attack because he was mistreated at the Kingston, Jamaica, airport took his pro se case to the U.S. Court of Appeals for the Eleventh Circuit.

There, aided by an appellate lawyer, 70-year-old Allan Campbell won a technical victory on July 8. He may return to the district court and seek repayment of the $150 change fee he says Air Jamaica demanded after forcing him to walk away from his flight and wait overnight to return home to Miami.


Case No.: 12-14860

Date: July 8, 2014

Case type: Federal question, Montreal Convention

Court: U.S. Court of Appeals for the Eleventh Circuit

Author of opinion: Judge Stanley Marcus

Lawyer for petitioner: Stephen F. Rosenthal, Podhurst Orseck, Miami

Lawyers for respondent: Julie E. Nevins and Carol Ann Licko, Hogan Lovells, Miami, and Hagan Scotten, Hogan Lovells, New York

Panel: Circuit Judge Marcus, Northern District of Alabama Judge L. Scott Coogler and Southern District of Georgia Judge Dudley H. Bowen Jr.

Originating court: Southern District of Florida

Yet his pro bono counsel Stephen Rosenthal doesn’t want the case to end this way.

Preliminary analysis tells Rosenthal there are grounds to file a petition for certiorari to the U.S. Supreme Court.

He wants the court to answer an open question about the Montreal (formerly Warsaw) Convention, the international rule book for compensating victims of air disasters and lesser aggravations of modern travel.

“Looking at the legal issues, I think there’s unfinished business,” said Rosenthal of Podhurst Orseck in Miami.

He applauded Eleventh Circuit Judge Stanley Marcus for taking Campbell’s appeal seriously and opting to appoint counsel, adding, “I’m satisfied with the process, just not the result.”

Campbell feels the same way, according to his daughter Charmaine.

“He was disappointed, but he’s optimistic that the opportunity is still there” for further appeal, she said.

Memorable Flight

Charmaine Campbell said her father travels frequently between Miami and the family’s native Jamaica, where he has a home and rental property.

One trip he’ll never forget occurred Sept. 8-9, 2009.

As he recounts events in his complaint, Campbell arrived at Norman Manley Airport three hours early to accommodate security checks, then waited another four hours to board. He wanted a smooth trip because his permanent resident alien card was expiring the next day.

Holding his boarding pass, Campbell strode the jetway and was steps from the aircraft when he was stopped and turned back, told he would have to take a flight the next morning, and charged a $150 change fee.

The airline wouldn’t put him up at a hotel and the terminal wasn’t suitable for sleeping so he spent the night outside, the lawsuit suggests.

At some point Campbell started feeling sick. Finally reaching his home the next day, he collapsed. A cardiologist at Jackson hospital told him the stress of the airport incident induced a heart attack, Campbell said.

He filed his lawsuit on deadline, Sept. 7, 2011, and when it was dismissed, refiled an amended version three months later. Citing Montreal Convention Article 19 for damages due to delay, and Article 17 for accidents that injure passengers as they embark or disembark, he sought $5 million.

Open Questions

Some basic questions—Why wasn’t Campbell allowed to board his ticketed flight? Why didn’t he go to a hotel and try to get reimbursed later?—remain unanswered because no factual record exists.

With apparent ease, airline attorneys persuaded U.S. District Judge James Lawrence King to dismiss the amended complaint for lack of subject matter jurisdiction with prejudice, meaning it couldn’t be refiled.

They also argued that because the first complaint was dismissed, the amended complaint was time-barred by the convention’s two-year statute of limitations.

On this point they lost both with King and the Eleventh Circuit, Rosenthal said.

“That holding breaks some new ground that’s helpful to passengers,” he said. “It cuts off one of the technical defenses that the aviation industry might use to limit claims.”

Marcus vacated part of King’s dismissal, allowing Campbell to pursue the $150 change fee as Article 19 economic damages caused by delay.

Otherwise the opinion “doesn’t pave any new ground on Article 19 and on Article 17 it’s unhelpful to passengers generally,” Rosenthal said.

One element he gleans from the ruling could provide a ticket to the U.S. Supreme Court.

It all started with Campbell misusing a term of art. Without knowing the circumstances, he said he was “bumped” from his flight. Bumping is defined as purposely overbooking.

Construing the definition of “accident” in Article 17, the Eleventh Circuit agreed with King that getting bumped from a flight isn’t an accident, but an all-too-common feature of air travel.

Rosenthal urged the court to rule that bumping could be an unusual event, or accident, if the airline violates its own policies or industry standards.

“It strikes me as the next logical issue for the Supreme Court to address in interpreting this international treaty,” Rosenthal said. The court may or may not agree the issue is pressing enough to trump many others for review.

Rosenthal said the take-away from the Campbell case is, “a pro se litigant comes to the court with great disadvantages. He was up against very good attorneys from sophisticated law firms and they zealously advocated their position.

“The law is that a court needs to view a pro se litigant’s position more leniently and my job was to point out to the Eleventh Circuit that wasn’t done sufficiently in the case of Mr. Campbell in the district court.”

Campbell isn’t bitter, Charmaine said.

He’s “humbled” by the idea that someone from a small town in Jamaica had a moment in such an exalted forum as a U.S. appellate court.

Though weakened by the heart attack, her father is “very resilient” in his battle with the airline, she said.

“He believes strongly that their actions were negligent in the way they handled the situation and he plans to pursue it as far as it will go.”