QUEER VOICES
12/05/2012 10:43 am ET Updated Feb 02, 2016

Continental Airlines Dildo Lawsuit: Claims From Gay Couple Dismissed By Federal Judge

A gay couple's claim that Continental Airlines was responsible for the humiliation caused by an incident involving a sex toy has been dismissed by a judge.

Earlier this year, Christopher Bridgeman and Martin Borger made headlines when they alleged a dildo from their bags had been removed, smeared with a "foul-smelling lubricant" and taped to the top of one of their checked bags when they returned to Virginia after a trip to Costa Rica in May 2011.

"I was absolutely and utterly shocked and embarrassed and humiliated and I didn’t even know what to do at the time,” Borger told NBC News in an earlier interview. At the time, the couple claimed the airport staff had purposefully removed the sex toy to taunt them.

The airline denied that its employees were responsible for the baggage snafu, but the couple sued United Continental Holdings and Continental Airlines for "intentional infliction of emotional distress, invasion of privacy, and negligence." United and Continental merged in 2010.

This week, a new report published on Courthouse News has revealed that U.S. District Judge Kenneth Hoyt dismissed the couple's claim on Thursday:

The Convention for the Unification of Certain Rules for International Carriage by Air, commonly known as the Montreal Convention, pre-empts the claims for damages related to the mishandling of luggage, according to the ruling.

Adopted in 1999, the Montreal Convention sets conditions and limits for the damages that passengers can seek. Borger and Bridgeman were unable to circumvent the treaty to find relief, according to the four-page order.

(Read the PDF of the full report here.)

At the time, the couple received support for their decision to take legal action.

"If the allegation is true, this is obviously just another example in a long history of baggage handler or TSA malfeasance," George Hobica, president of Airfarewatchdog.com, a discount airfare compiler, told ABC News at the time. "The embarrassment and humiliation this caused must have been very painful and if the charges can be substantiated then the couple has every right to sue."

However, in an earlier Conde Nast Traveler op-ed about the dildo lawsuit, Barbara Peterson had noted that Bridgeman and Borger had chosen to sue the airline, rather than the TSA.

She wrote:

[O]nly the TSA has the legal right to open your checked bags -- and it’s usually done in a separate area that airline employees can’t access. Nevertheless...both TSA screeners and airline baggage handlers have been implicated in numerous cases of theft involving checked luggage...

Alexandra Clear, a spokeswoman for the Houston law firm of Faubus & Scarborough, which represents the couple said, “It’s our belief that the airline is ultimately responsible” when customers entrust bags to them (and increasingly pay them to carry), even if the tampering could have been done by TSA. But there’s another reason a plaintiff might single out the airline: It’s very difficult to successfully sue an agency like the TSA, though some have tried.

Peterson went on to say that the couple still had an "uphill battle" to contend with.

"If you don’t hear a lot about airlines paying out big money for baggage mishaps, it’s because they’re pretty much insulated from litigation by limits on their liability for damage," she said. "The rules are all spelled out on the DOT's consumer-protection page, and when you fly, you are technically entering into agreement -- a contract of carriage -- that implies you agree to its terms, which very few customers take the time to read."

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