Update on the Kuwait Airways Case

I’ve written a few times about the Kuwait Airways case. This is the case in which the airline refused to transport a passenger from New York to London because he was traveling on an Israeli passport. The airline cited Kuwaiti law forbidding it to transport the passenger. The Department of Transportation, after some initial hemming and hawing, finally did the right thing and determined that the airline had violated US law governing nondiscrimination by air carriers. The airline sought review in the DC Circuit. I encourage you to read my prior posts to get up to speed.

The airline’s appeal was recently dismissed. On February 26, the parties filed a stipulation of dismissal, noting that the case “is now moot.” Note that only the airline and the government submitted the stipulation: Eldad Gatt, the aggrieved Israeli, who has sought to intervene in the DC Circuit, was not a party to the stipulation.

What happened to render the issue moot? The Department of Justice, which is handling the case, refused to comment. I reached out to counsel for the airline, and counsel for Mr. Gatt but received no responses in time for this post. However, I heard from someone with knowledge of the case that the airline terminated its service from New York to London in January 2016 and that it has informed the government that it has no plans to resume the service again in the foreseeable future. I also have heard that the government told the airline that it would not take enforcement against it unless the airline took steps to resume service on the route.

The idea that the cancellation of the service was behind the stipulation of dismissal seems to be confirmed by the January 15 statement of Secretary Foxx:

The U.S. Department of Transportation will not tolerate unlawful discrimination, and has mandated that the airline immediately cease that practice and allow Israeli passengers to travel between the U.S. and London. In light of our demands, Kuwait Airways has chosen to cease passenger service from New York JFK airport to London Heathrow by January 18. With the termination of service between New York and London, Kuwait Airways is no longer offering or conducting service between JFK and LHR that discriminates against Israeli citizens. We will continue acting decisively to enforce our laws against unlawful discrimination in the U.S. transportation system.

While I’m sorry not to have a judicial decision on the issue, I think the result is a reasonable one: there isn’t room for common carriers or airlines that discriminate on the basis of nationality, as it seems to me Kuwait Airways, despite its protestations, has done here.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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