Gemini on Question 48, Sep 14

Yes, Varghese v. China Southern Airlines Co., Ltd., 925 F.3d 1339 (11th Cir. 2019) is still good law. It has not been overruled by the Eleventh Circuit sitting en banc or by the United States Supreme Court.

Brief Context of the Case:
The case deals with the Montreal Convention, an international treaty that governs airline liability for international flights. Specifically, Article 19 of the Convention governs damages caused by "delay" in the carriage of passengers and preempts state-law claims for such delays. In Varghese, the plaintiff was denied boarding (bumped) and the airline ultimately refused to fly him. The legal question was whether being denied boarding and refused carriage constitutes a "delay" under the Montreal Convention (which would preempt his state-law claims) or a total "nonperformance" of the contract (which would allow his state-law breach of contract claims to proceed).

The Holding:
The Eleventh Circuit held that a total refusal to transport a passenger is "nonperformance," not a "delay," and therefore state-law claims are not preempted by the Montreal Convention.

The court articulated its holding in a few key places in the opinion. The most direct statements of the holding are:

"We hold that the term 'delay' in Article 19 does not extend to claims of nonperformance." (925 F.3d at 1349)

In applying this rule to the plaintiff's specific situation, the court concluded:

"In sum, Varghese was not 'delayed' in traveling on China Southern. He never traveled on China Southern. We hold that because Varghese’s allegations amount to nonperformance of a contract of carriage, his claims are not preempted by the Montreal Convention." (925 F.3d at 1354)

(Note: While this case remains good law and is binding in the Eleventh Circuit, courts in different circuits sometimes draw different lines between what constitutes a "delay" versus "nonperformance" under the Montreal Convention depending on the highly specific facts of how a passenger is rebooked or refunded.)