Because commercial airliners that are in the business of international flights offer to the general public to carry goods or persons and are bound to accept anyone who offers to pay the “price of carriage” subject to seating availability, they are considered by law to be “common carriers.” As a common carrier, an airliner is required to use the “utmost due care and diligence” for the safe passage of and to prevent injuries to its passengers and can be held financially responsible (“liable”) for injuries resulting from even its slightest carelessness (“negligence”). Commercial airlines providing international service are bound to do all that human care, vigilance, and foresight that they can reasonably do under the circumstances. However, as to other planes and persons who are not passengers, the airliner owes them only the ordinary standard of care.
The starting point for a discussion of liability for personal injuries and deaths involving international flights is the Warsaw Convention treaty, which took place in 1929 and was the applicable law until the Montreal Convention of 1999. Article 17 of the Warsaw Convention governed the liability of international air carriers for accidents in which a passenger was injured (“wounded”) or killed on an international flight. Article 22 created monetary liability limits on damage awards against an international airline. Under the Warsaw Convention of 1929, the airlines agreed to limit their liability to about $8,300. The Warsaw Convention was amended by the Hague Protocol and then again in 1975 by the Montreal Agreement to provide compensation of a maximum of $75,000 per passenger for passengers who were injured or killed on an international flight. This amount was paid to the injured victim or his or her next of kin without the passenger (or his or her heirs) having to prove negligence or other fault on the part of the airline or its employees.
One of the major problems with the Warsaw Convention was that $75,000 was frequently insufficient to fairly compensate the victim or his or her next of kin for their injuries or loss. However, the only way the injured person or his or her heirs could avoid this monetary limitation of $75,000 was by proving that the airline, through its employees, acted deliberately (“willful misconduct”) in causing the passenger’s injuries or death, an admittedly difficult standard that rarely succeeded. The Warsaw Convention also prevented victims from suing the airlines for punitive damages regardless of how reckless, gross, or deliberate the misconduct of the airline’s employees was.
The Warsaw Convention often led to grossly unfair outcomes. For example, suppose two people are on an airliner traveling from Los Angeles to New York when it crashes and they are killed. One of the passengers’ final destination was New York. The other passenger, however, was flying to London, so the New York stop was simply a stopover to refuel the plane and pick up more passengers going to London. In this case, the amount of monetary damages the heirs of the two passengers would be greatly different if the aircraft crashed between Los Angeles and New York. As to the passenger whose end destination was New York, there would be no limit on the amount of damages his or her next of kin could recover. For instance, they could receive an award in the millions. However, as to the passenger whose end destination was London, the Warsaw Convention and the Montreal Agreement applied to limit the amount of damages his or her heirs could recover to $75,000.
Recognizing that the liability limits of the Warsaw Convention and subsequent amendments thereto were inadequate in most countries to fully compensate the victims of an international aircraft accident, the Montreal Convention of 1999—formally known as the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999—was entered into and took force on November 4, 2003. The Montreal Convention of 1999 is the product of a United Nations effort to reform the Warsaw Convention so as to “harmonize the hodgepodge of supplementary amendments and intercarrier agreements of which the Warsaw Convention system of liability consists.” As of December 2008, there are 87 signatories to the Montreal Convention, among them almost all countries of major importance in international air transportation. Signatory countries include the United States, European Union (EU), Canada, China, Japan, Korea, and Mexico.
The Montreal Convention of 1999 does not simply amend the Warsaw Convention and its various amendments; it replaces them. Thus, the Montreal Convention is the treaty exclusively governing the rights and liabilities of passengers and carriers in international air transportation. However, because of the similarity of many provisions of the Montreal Convention with the Warsaw Convention, the case law regarding a particular provision of the Warsaw Convention treaty applies with equal force regarding its counterpart in the Montreal Convention treaty.
The Montreal Convention unifies and replaces the system of liability that derived from the Warsaw Convention and its amendments, explicitly recognizing the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution. Even though the Montreal Convention is more consumer-friendly than its predecessor, it does not alter the original goal of the Warsaw Convention of maintaining limited and predictable damage amounts for airlines.
The Montreal Convention of 1999 applies to “all international carriage of persons, baggage or cargo performed by aircraft for reward.” International carriage is defined as any carriage where the place of departure and the place of destination are either (1) situated within the territories of two State Parties, or (2) within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. The Montreal Convention applies to all actions for damages arising in the carriage of passengers, baggage, and cargo, however such claims may be founded.
Article 17(1) of the Montreal Convention states: “The carrier is liable for damages sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” Liability under Article 17(1) arises only if a passenger’s injury “is caused by an unexpected or unusual event or happening that is external to the passenger,” and is not due to “the passenger’s own internal reaction to the usual, normal, and expected operation of the accident.” The United States Supreme Court has noted that this definition “should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries.” The courts have held that the risk of developing deep vein thrombosis (DVT) during a flight is not an “accident” within the meaning of Article 17, and that an airline’s failure to warn about the risk of DVT is not an “event” within the meaning of the Supreme Court’s definition of an “accident.”
The Montreal Convention of 1999 provides that a “carrier is liable for damages sustained in case of death or bodily injury.” The Montreal Convention creates a two-tiered system of compensation. First, it imposes absolute liability on an international carrier to the extent of 100,000 “Special Drawing Rights” (SDRs) (providing the plaintiff can prove damages up to that amount). SDRs are a type of international monetary reserve currency or accounting system created in 1968 by the International Monetary Fund (IMF), which is a specialized agency of the United Nations that determines the value of SDRs relative to the currencies of the five largest exporting nations. The value of an SDR is published everyday by the IMF. As of April 15, 2009, 100,000 SDRs are the equivalent of about $148,500 United States dollars.
For claims for monetary damages in excess of $148,500 (100,000 SDRs on April 15, 2009), there is a presumption that the airline was at fault (“negligent”) in some way, and the airline is permitted to raise any defenses it may have, including the fault of the passenger (“comparative negligence”). Comparative negligence is carelessness on the part of the injured or deceased victim that caused or contributed to his or her injuries or death.
Both the Montreal Convention and the Warsaw Convention before it speak of compensation for “bodily injury.” But what of the passenger who survives an international flight accident, yet suffers serious mental disorders? The Montreal Convention, like the Warsaw Convention, is silent on the right of a passenger to recover damages for emotional and mental injuries and has left the issue to the courts to resolve. The courts have taken the position that, as for mental and psychological injuries, they are recoverable only where they are caused by the bodily injury the passenger sustained. Damages for emotional distress and mental and psychological injuries that merely accompany the bodily injury, but are not caused by the bodily injury, are not recoverable.
In cases of aircraft accidents, the Montreal Convention of 1999 requires the airline to provide, without delay, advance payments to assist designated persons in meeting immediate economic needs. The amount of this initial payment will be subject to national law and will be deductible from the final settlement award. The Montreal Convention of 1999 also increases the air carrier’s liability limits in the event of delay, and in the event of damage caused to baggage (delay, damage, or loss).
Under the Warsaw Convention, an injured passenger or the next-of-kin of a deceased passenger could traditionally file suit in one of four possible places (“venues”): (1) the country where the passenger bought the ticket, (2) the country of the passenger’s final destination, (3) the country where the airline is incorporated, or (4) the country where the airline maintains its principal place of business. The Montreal Convention of 1999 added another site where the injured passenger or next-of-kin of a deceased passenger can bring suit: in the state where the passenger had his or her principal and permanent residence (his or her “domicile”). Domicile has been defined as the place where a person has his or her true fixed home and principal establishment, and to which, whenever he or she is absent, he or she has the intention of returning
Note that the Montreal Convention and its predecessors (the Warsaw Convention, Prague Protocol, Montreal Agreement, and other agreements) apply only to the airlines. It does not apply to others who may have caused the victim’s injuries or death, such as the manufacturer of the airliner or the maker of component parts or systems installed in the aircraft. Airports, private maintenance companies, or other service providers cannot reap the benefits of the Warsaw Convention unless they are found to be performing the airline’s functions under the Warsaw Convention. The United States government can be held liable for the carelessness (“negligence”) of its Air Traffic Controllers, so long as the ATC is involved in non-policymaking and non-discretionary functions.
If a plane does down in the “territorial waters” of the United States, the deceased victim’s next of kin are entitled to be compensated for all of their losses. The territorial waters of the United States extend for 12 miles from land. For international flights that crash into the ocean beyond the 12-mile limit (the “high seas”), the law that is applied is that of the Death on the High Seas Act (DOHSA). Before 2000, the DOHSA permitted the designated persons to recover damages only for their “pecuniary” or “economic” losses, such as lost wages and support of the deceased victim. Since 2000, however, the victim’s heirs have been able to recover damages for “non-pecuniary” or “non-economic” losses, such as loss of care, comfort, and society. However, the United States Supreme Court has ruled that the relatives of a decedent killed in an aircraft accident on the high seas may not bring a survival action to compensate the deceased passenger for pre-death pain and suffering.
If you have been injured or a loved one killed in an accident involving an international commercial aircraft, you should contact an experienced personal injury law firm as soon as possible. Although the National Traffic Safety Board (NTSB) usually conducts a thorough investigation of an aircraft accident for aircraft accidents in the United States, it may take many months—sometimes as much as a year or more—for the NTSB to release its findings, conclusions, and recommendations. The law firm may want to send its own investigator to the scene of the accident to inspect and take pictures of the accident site and any dangerous condition that caused or contributed to the accident, especially before the airliner changes the condition. The attorney or his or her investigator will also want to talk to any witnesses to the accident while the facts are still fresh in their minds.
When an international commercial aircraft crashes, causing a loss of life or serious injuries, the airliner and its insurance company will usually contact the next of kin immediately and provide immediate grief support. The airliner will often pay for the hotel costs of a deceased passenger’s next of kin and help make and pay for funeral arrangements. The airliner or its insurance company will frequently tell the survivors that there is no need for them to obtain a lawyer to represent them, as they will do right by them. The insurance company may offer to pay what appears to the uninitiated and inexperienced family to be a fair settlement. Do not accept any settlement offer from an insurance company without the advice of a skilled and experience aviation accident lawyer.
Before you sign any document given to you by the airline company, read it carefully before signing and if you have any questions about what it means, take it to an experienced personal injury lawyer. The grieving family is susceptible to accepting a much lower offer than an experienced aviation lawyer can get for them. Although the airliner or its insurance company will try to dissuade you from getting a lawyer saying that a lawyer’s fee will come out of your share, the truth is that studies consistently show that victims of accidents end up with more money in their pockets even after paying the lawyer his or her fee.
An experienced personal injury law firm can also help with seeing to it that you obtain appropriate and thorough medical care for your physical, emotional, and psychological injuries suffered as a result of the accident. They can also do everything possible to ensure that you obtain full compensation for your medical expenses, pain and suffering, mental anguish, property damage, lost wages, psychological injuries, loss of society and comfort (“loss of consortium”), and all of your other injuries and damages.
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