ON AIR CARRIER'S LIABILITY (PART 1)

Hello and welcome to the blog.

For the next 2- part series, we shall be discussing the provisions of the Montreal Convention on air carrier’s liability vis-à-vis the manufacturers liability in an accident.

On today’s post, we shall be discussing the provisions of the Montreal Convention.

                                              

Much depends upon the facts of the particular accident, such as whether the aircraft qualifies as a commercial carrier or common carrier subject to Federal Aviation Administration (FAA) regulations.

The Montreal Convention governs airline liability for injuries or death to passengers during most international flights. The 1999 Montreal Convention superseded a similar treaty known as the Warsaw Convention, which governed personal injury claims in international air travel dating back to the 1920's. 

While the scheme under The Montreal Convention is generally beneficial to personal injury and wrongful death claimants, it is important to understand a passenger's rights and limitations under the treaty.

                                                   

Article 17 of the Montreal Convention provides that an airline is liable for personal injury or death of a passenger on an international flight between two member nations. There are currently 150 member nations. In order to succeed in making a claim under the Convention, the passenger must prove that injury or death resulted from an "accident," and that the accident took place on board the aircraft or "in the course of any of the operations of embarking or disembarking."

The United States Supreme Court has defined "Accident" under the Convention as "an unexpected or unusual event or happening that is external to the passengers.

This admittedly ambiguous definition has been defined broadly by courts to encompass passenger-to-passenger assaults, airplane hijacking, as well as the failure of an airline to provide proper medical attention to an ill passenger.

When the injury-causing accident happens outside of the plane, the question becomes whether the passenger was in the "operation of embarking or disembarking." Courts have provided varying interpretations of this clause when deciding if an accident falls under the purview of the Convention, and will look at factors such as:

(1) The location of the passenger at the time of the injury;

(2) What that person was doing at that time, and

(3) The proximity of the passenger to the actual airplane. A passenger who fell and was injured on wet stairs outside the airplane was found to have an actionable claim under the Convention.

                                           

Just like every other case to be adjudged by the legal system, the facts and circumstances of each case would be analyzed to determine whether an injured person has a viable claim.

Assuming the passenger's death or injury claim falls within the scope of Article 17, The Montreal Convention has a two-tiered system for recovery. For viable claims, the airline is automatically liable for proven damages up to 128,821 Special Drawing Rights (SDR). This amount was reduced in 2019 from the 2017 Convention limits of 113,100 SDR. The only way the airline can be relieved from liability up to damages of 128,821 SDR is by proving that the injured person was negligent in causing his or her own injuries. Psychiatric damages not tied to any physical injury are generally not recoverable.

There are situations where an injured person's damages exceed 128,821  SDR. To avoid paying an injured party more than the amount stipulated, an airline has the burden of proving that either:

(1) The accident was not caused by the airline's own negligence; or

(2) The accident was caused solely by the negligence of a third party. The burden of proof in a personal injury claim under The Montreal Convention generally falls on the airline. This is different than typical personal injury claims, such as a medical malpractice claim, a car accident or even a claim for injuries sustained on a domestic airplane flight, where the plaintiff has the burden of proving the defendant's negligence in order to recover.

NOTE: Pursuant to Article 24 of the Montreal convention, these limits should be increased at five years intervals. The last review took place at the end of 2009. Limits are expressed in Special Drawing Rights of the International Montreal Fund. At the time of writing, one SDR equals about 1, 24 €. 

While the above is a summary of some of the more important sections of The Montreal Convention, there are always circumstances and exceptions unique to pursuing any personal injury claim involving an international flight. It is important to note that The Montreal Convention has a two-year time limit within which to bring a claim, which is shorter than many domestic jurisdictions.

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