By Peter Berton

NEW ORLEANS, La. – A gay couple whose luggage was vandalized while in the secure possession of a major U.S. airline has grounds for legal action, an appellate court has ruled.

The U.S. Court of Appeals for the 5th Circuit stepped in after a lower court dismissed a lawsuit at the request of defendant United Continental Holdings Inc., corporate parent of United Airlines.

At issue is an incident that took place at Norfolk International Airport in Norfolk, Va., on May 21, 2011. According to court documents, when the plaintiffs retrieved their luggage from the airline’s secure baggage area following a flight that originated in Houston, they discovered one of the bags had been rifled. Someone in the airline’s baggage-handling facility apparently had removed a sex toy packed inside the gay couple’s duffel bag and taped the toy to the outside of the duffel before setting the bag on the public baggage carousel. Not only that, but the toy had been smeared with “a greasy, foul-smelling substance,” according to the lawsuit.

The couple sued for intentional infliction of emotional distress, invasion of privacy and negligence, asserting “that the bag at all times, from when they checked the bag in Houston to the time it was sent out onto the carousel in Norfolk, was in the custody of United and that, during this time, one or more of United’s employees had searched their bag, removed the toy, defiled it and then taped it to the top of the bag,” the Appeals Court decision noted. “Plaintiffs alleged that these acts were directed towards them because they are homosexuals and male.”

The U.S. District Court that originally heard the case ruled in favor of United’s motion to dismiss based on the company’s defense under Article 17(2) of the Montreal Convention. The convention sets guidelines for airline liability, including damage to baggage while in an airline’s possession.

The 5th Circuit overturned the lower court’s decision, saying the Montreal Convention was designed to protect airlines from frivolous claims in the case of accidental damage, not to pave the way for intentional vandalism.

“The alleged misconduct in this case simply does not relate to any damage to plaintiffs’ duffel bag, which they admit is ‘just fine and undamaged’; rather, plaintiffs seek a remedy for the way in which their bag was utilized to inflict personal injury,” the appeals court stated in its ruling. “Accordingly, we decline to shoehorn plaintiffs’ claims into the substantive scope of Article 17(2) merely because a bag is central to their factual basis.”

The lawsuit was remanded to the lower court for adjudication.