A federal court in New York recently allowed a lawsuit against Air China to proceed after the airline allegedly refused to allow a father and his infant daughter to board an international flight because the child had epilepsy. The decision, Lee v. Air China Ltd., 2026 WL 1296688 (E.D.N.Y. May 12, 2026), is notable because the airline argued that the claims were barred by the Montreal Convention, the international treaty that governs lawsuits arising from international air travel. The court rejected that argument, at least at the pleading stage.

“Google It”

According to the complaint, the passengers arrived at John F. Kennedy International Airport for a round-trip flight to Beijing from New York. When they attempted to check in, Air China personnel refused to permit them to board because the child had epilepsy and the airline demanded a medical letter “affirming her fitness to travel.” The father explained that his daughter had previously traveled internationally, including on Air China, without any such requirement. He also offered that the child’s mother, a licensed pediatrician, could confirm that the child was fit to fly. Air China still refused to permit them to check in.

The father asked for the written policy requiring the medical letter, but he was not provided one and was instead told to “Google it.” The next day, when he contacted the airline to attempt to rebook the trip, he learned that Air China had already marked him and his daughter as “no-shows.” The passengers ultimately purchased tickets on another airline.

Delay in Transportation vs. Complete Nonperformance

The passenger-father brought suit, asserting state-law claims for breach of contract, negligent misrepresentation, emotional distress, and disability discrimination under New York law. Air China argued that the case fell within Article 19 of the Montreal Convention, which governs damages caused by “delay in the carriage by air of passengers.” If the court accepted that characterization, the airline could argue that the treaty displaced—“preempted”—the plaintiffs’ state-law claims. The lawsuit alleged the opposite, however, asserting that the case did not involve delayed transportation but a complete refusal to transport.

U.S. District Judge Natasha C. Merle sided with the passengers, emphasizing that the complaint alleged Air China “refused to check plaintiff and his daughter into their flight,” did not offer alternate transportation, marked them as no-shows, and never indicated that it intended to transport them later.

In reaching this conclusion, the court relied heavily on Wolgel v. Mexicana Airlines, 821 F.3d 442 (7th Cir. 1987), a Seventh Circuit decision interpreting the Warsaw Convention, the predecessor treaty to the Montreal Convention. In Wolgel, passengers were bumped from an international flight and were not placed on another flight. The Seventh Circuit concluded that the passengers’ claims were not based on “their delay in getting to” their destination, but on the fact that “they never left the airport.”

The Wolgel court reasoned that the Warsaw Convention addressed delays in transportation, not complete nonperformance of the contract of carriage. That reasoning proved important in Lee because the court viewed the allegations against Air China as more analogous to a complete refusal to transport than to a delayed flight. The opinion repeatedly emphasized the alleged absence of rebooking efforts or any indication that the airline intended to fulfill the transportation contract later. The court also contrasted the case with prior decisions where airlines at least attempted to provide transportation on a later flight. For example, the court discussed Paradis v. Ghana Airways Ltd., 348 F. Supp. 2d 106 (S.D.N.Y. 2004), where airline personnel instructed a passenger how to rebook a flight the following day, which the court viewed as evidence of “the airline’s intent to perform under the parties’ agreement.” In Lee, by contrast, the court found “no allegation to support that Air China intended to fulfill its obligations.”

Lee as New Precedent or Status Quo?

The Lee decision does not break new doctrinal ground. The distinction between transportation “delay” and “nonperformance” has existed since the Warsaw Convention era, most notably through Wolgel. At the same time, many courts have treated denied boarding, missed flights, and rerouting disputes as claims arising from delay in carriage. Lee is perhaps notable because it applies the older “nonperformance” line of authority in a modern denied-boarding context and does so at the pleading stage, where the court was required to accept the allegations in the complaint as true.

The outcome in Lee was also closely tied to the specific allegations in the complaint. The court repeatedly emphasized that Air China allegedly refused transportation outright, did not offer alternate transportation, marked the passengers as no-shows, and allegedly gave no indication it intended to perform the transportation contract later. The court also noted that the plaintiffs did not immediately abandon the itinerary in favor of another airline, distinguishing cases where passengers themselves elected substitute transportation before the carrier had an opportunity to perform. The factual context likely mattered as well, including allegations involving a child with epilepsy and an alleged inability to obtain a clear explanation of the airline’s policy basis for refusing transportation.

Notably, too, the Lee court also declined to consider Air China’s Conditions of Carriage at the motion-to-dismiss stage. Air China argued that its Conditions authorized refusal of transportation where a passenger’s travel could “endanger or affect the safety, health, convenience, comfort” of others. But the court held that the Conditions of Carriage were not properly incorporated into the complaint and therefore could not be considered on the pleadings alone.

Lee should not be read to mean that every denied-boarding dispute or missed international flight can be recast as “nonperformance” simply by using contract terminology. The opinion repeatedly focused on the specific allegations and the absence of any indication that the carrier intended to perform the contract later. In this sense, Lee applies the longstanding “delay versus nonperformance” distinction to a very specific factual record at the pleading stage more than it retreats from, or establishes new ground, under Montreal Convention preemption principles.

About Timothy M. Ravich

Timothy M. Ravich concentrates his practice in the areas of aviation, product, and general civil litigation. Recognized as one of only 50 lawyers qualified as a Board-Certified Expert in the area of aviation law, Tim specializes in transactional and regulatory matters related to the ownership, maintenance, and utilization of aircraft, airports, and airspace. Click here to read Tim’s full attorney biography.