AIR CARRIER’S LIABILITY: ACCIDENTS

The Montreal Convention 1999 (“The Convention”) – brought into force in the UK on 28 June 2004 by the Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002/263 – updates the Warsaw Convention 1929 and applies to all international carriage performed by aircraft for reward. The Convention provides an exclusive cause of action and sole remedy against air carriers per Abnett v British Airways Plc [1997] A.C. 430 and any action for damages can only be brought subject to the conditions and limits of liability therein. The Convention provides for damages in case of death or injury of passengers without fault, of up to 113,000 IMF Special Drawing Rights and unlimited carrier liability on proof of negligence. Article 17(1) provides, subject to defences, that “the carrier is liable for damage 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”. The Convention made no significant change to the Warsaw Convention (“WC”) art.17 and art.17 authorities therefore remain valid in respect of art.17(1) claims. The specific meaning attributed to “accident”, “bodily injury” and the “accident location” in the context of art.17(1) is considered below.

Accident: Accident is an autonomous concept and its ordinary meaning in national legal systems is irrelevant for Convention purposes. The Convention does not define “accident” (or “bodily injury”) but reference to “the accident which caused” the death or injury in art.17(1) indicates that accident is understood by reference to its cause and not the injury itself. Hence, Claimants must prove that an accident was the cause of the injury. In Air France v Saks (1985) 470 US 392 no liability arose where the normal pressurisation of the aircraft on landing caused the Claimant’s hearing loss. O’Connor J, US Supreme Court, found that “liability under art.17 WC arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger” (accident) and “when the injury indisputably results from the passenger’s own internal reaction to the usual, normal and expected operation of the aircraft, it has not been caused by an accident and art.17 WC cannot apply”. Lord Justice Laws in Barclay v British Airways Plc [2008] EWCA Civ 1419; [2010] Q.B. 187 affirmed that this last statement is part and parcel of O’Connor J’s accident definition. Lord Scott of Foscote in Deep Vein Thrombosis and Air Travel Group Litigation, Re [2005] UKHL 72; [2006] 1 A.C. 495 took the view that it is the injured passenger who must suffer the “accident” and it is from his, not the perpetrator or Defendant’s perspective, that the quality of the “unintended and unexpected” happening must be considered.

Lord Scott of Foscote in Deep Vein Thrombosis and Air Travel Group Litigation, Re [2005] UKHL 72; [2006] 1 A.C. 495 was critical of an approach to Convention interpretation that interprets not the Convention language but instead the language of the leading judgement interpreting the Convention, however, numerous English and foreign authority supports O’Connor J’s definition. In Chaudhari v British Airways Plc Times, May 7, 1997 where an already left side paralysed passenger fell as he tried to stand, Leggatt L.J. said that accident is not to be construed as including any injuries caused by the passenger’s particular, personal or peculiar reaction to the normal operation of the aircraft. Here, injury was not caused by an art.17 accident but by his own pre-existing infirmity, his own internal reaction to the usual, normal and expected operation of the aircraft.

Whether an omission can constitute an accident was considered in Olympic Airways v Husain (2004) 540 US 644 where H, an asthmatic allergic to cigarette smoke, was allocated seating near the smoking section. Cabin crew repeatedly refused him permission to move to vacant seats and he suffered a heart attack and died. The US Supreme Court applied the Saks accident definition and the flight attendant’s refusal to assist a passenger requesting assistance was an unexpected or unusual event or happening. Lord Phillips of Worth Matravers M.R. in Deep Vein Thrombosis and Air Travel Group Litigation, Re [2003] EWCA Civ 1005; [2004] Q.B. 234 doubted the Supreme Court’s reasoning: “I cannot see, however, how inaction itself can ever properly be described as an accident. It is not an event; it is a non-event. Inaction is the antithesis of an accident”. He opined that the refusal to move the passenger could be described as an insistence that he remain seated in the smoke exposed seats and was therefore a positive act and not an omission. However, whilst a distinction between acts and omissions is relevant in negligence, common law negligence has no place in art.17(1) and it is likely that the rejection of an explicit request for assistance would be treated as an event in a context where action would normally be expected

An accident can involve intentional conduct by the carrier or others, such as hijacking, terrorist attacks and bomb threats, e.g. Maranga v Abdulmutallab SD NY, 2012, where a passenger was injured attempting to prevent another passenger on a Delta Airlines flight, detonating a bomb concealed in his underwear. Turbulence in flight is common but severe turbulence can be unusual and unexpected and an accident, as in Weintraub v Capital International Airways Inc 16 Avi 17,911 (NY City Civ Ct, 1980) where the aircraft’s subsequent entry into a dive, caused loss of hearing, balance and speech abnormality. Contaminated food causing food poisoning, alcoholic drinks given in error to a passenger with a heart condition requesting a non-alcoholic drink, hot coffee spilled onto the passenger’s legs by turbulence, cabin crew error or the act of another passenger, have all been determined to be accidents, e.g. in Wipranik v Air Canada 32 Avi 15, 450 where coffee slipped off a tray table when the passenger in front moved. However, inexplicable coffee spills or those caused by the passenger are not accidents, e.g. Buckley v Monarch Airlines Ltd [2013] 2 Lloyd’s Rep. 235. Poor quality cabin air causing pneumonia, hypodermic needle injury, false smoke alarm and cabin crew verbally abusing a passenger have all been held to be accidents as have objects falling from overhead lockers.

In Barclay v British Airways Plc [2008] EWCA Civ 1419; [2010] Q.B. 187 a slip on a standard fitting plastic strip covering the seat fix tracking in the floor was not an accident because there was no event external to the passenger’s own reaction to the normal operation of the aircraft. The Court of Appeal found that: “Article 17 contemplates, by the term ‘Accident’ a distinct event, not being part of the usual, normal and expected operation of the aircraft, which happens independently of anything done or omitted by the passenger”. The causative event must be external to and separate from any involvement of the passenger which was not the case here, hence there is no liability under art.17(1) for simple slips trips or falls. The courts do not readily find torts or violent or abusive behaviour by other passengers unrelated to the carrier’s operation of the aircraft to be accidents. However, Lord Justice Laws in Barclay referring to Morris v KLM Royal Dutch Airlines [2001] EWCA Civ 790; [2002] Q.B. 100 where a male passenger indecently assaulted a 16-year-old girl on an overnight flight, said “the proposition that an assault can constitute an accident offers, I think, a strong example of the adoption of an autonomous meaning of a concept in the Convention…”. The accident did not have to relate to the operation of the aircraft or be a characteristic of air travel.

In Deep Vein Thrombosis and Air Travel Group Litigation, Re [2003] EWCA Civ 1005; [2004] Q.B. 234 the initial presumption was that economy class syndrome or deep vein thrombosis (“DVT”) could be caused by the circumstances of carriage by air, viz the cramped seating, and that carriers knew or ought to have known before the flight that the in flight risk of DVT was greater than the everyday risk; however, the carrier was found not liable. In the appeal from that decision, Deep Vein Thrombosis and Air Travel Group Litigation, Re [2005] UKHL 72; [2006] 1 A.C. 495, Lord Steyn in the House of Lords after citing Saks said:

” … let it be assumed that it can be shown that an event affecting a passenger adversely on an aircraft was unexpected and unusual. That is generally, however, not enough to make it an accident. It is an integral part of the test of what amounts to an accident that it must have a cause external to the passenger. In the case of DVT this factor is absent. The component parts of the event cannot therefore amount to an accident. It is closer to a passenger who suffers an asthmatic attack, congenital back pain, a hiatus hernia or simply from the wear and tear of extreme old age. Not surprisingly, such cases have in practice been treated as not amounting to accidents.

Hence, claims have subsequently been framed in terms of the carrier’s failure to warn and failure to advise of the need for precautions, but such claims have been rejected in a number of jurisdictions.

In Ford v Malaysian Airline Systems Berhad [2013] EWCA Civ 1163 the administration of an injection of diuretic to the Claimant in the course of an international commercial flight exacerbating physical discomfort caused by fluid retention due to urethral stenosis, was not an accident under the Convention. The actual act of administering an injection in the circumstances was not an unusual event from her perspective, for art.17(1) purposes. The injection was given normally, with prior consent, subsequent to crew member request, the only unusual aspect being that it was given mid-flight. There was no evidence that any of those characteristics had any causative effect in the chain of events that led to the Claimant’s bodily injury. The mid-flight injection did not endow the circumstances with the unusual characteristics required to constitute an accident under art.17(1).

Bodily Injury: Another problem arising from the art.17(1) definition concerns the meaning of “death or bodily injury”, in particular whether this includes psychiatric injury. In the majority of cases, no compensation has been awarded for psychiatric injury in the absence of physical injury. Hence, severe turbulence, thunder and lightning strikes, hijackings, threats of violent assault by cabin crew or other passengers causing psychiatric injury will not give rise to carrier liability in the absence of accompanying physical injury.

In Rosman v Trans World Airlines Inc (1974) 34 NY 2d 385, 314 NE 2d 848, terrorists hijacked an airliner flying from Tel Aviv to New York and passengers were held hostage for several days before release. The NY Court of Appeals held that there was liability for the passenger’s palpable conspicuous physical injury, (including bodily injuries caused by the trauma of a hijacking) but not mental injury or trauma where there were no observable bodily as distinct from behavioural manifestations. The Claimant must show a causal connection between the accident and the bodily injury. However, in Husserl v Swiss Air Transport Co Ltd (1975) 388 F Supp 1238 the US District Court in New York allowed the Claimant who was not injured, but who had claimed that the hijacking trauma she endured caused her mental and psychosomatic injuries, to recover for mental injury in the absence of physical injuries arguing that “the types of injuries enumerated should be construed expansively”. Husserl was followed in Palagonia v Trans World Airlines (1978) 110 Misc 2d 478, 442 NYS 2d 670, where claims were settled before judgment but the Supreme Court of New York had accepted that mental injury in the absence of physical injury, was recoverable damage within the concept of bodily injury. In Eastern Airlines v Floyd (1991) 499 US 530 all three engines failed and passengers were informed of the decision to ditch in the sea. The pilot managed to restart one engine during the descent and the aircraft landed safely with no loss of life or physical injury to passengers. The US Supreme Court held that there could be no recovery for mental injuries when the “accident has not caused a passenger to suffer death, physical injury or physical manifestation of injury”, i.e. there can be no recovery for psychiatric injury unaccompanied by physical injury.

After Floyd, psychiatric injuries caused by physical injury suffered during the accident are recoverable, but what was the position as regards post-accident physical injuries caused by the psychiatric injury suffered?

In Carey v United Airlines 255 F 3d 1044 (9th Cir 2001) it was held that the Claimant who suffered nausea, cramps, perspiration, nervousness, tension and sleeplessness caused by mental distress, had suffered no physical injury at the time of the incident, but fear and anxiety that led to a physical injury thereafter. Allowing claims for physical manifestations of emotional distress would open the floodgates of litigation and no compensation was awarded. However, in Weaver v Delta Airlines Inc 56 F Supp 2d 1190 (DC Mont, 1999) the Claimant recovered for psychiatric injury without demonstrating any bodily injury, when extreme stress caused by an emergency landing leads to chronic PTSD and physical brain damage. This case was problematic in that it allowed claims for psychiatric injury in the absence of palpable physical bodily injury.
In Re Air Crash at Little Rock, Arkansas 291 F 3d 503 (8th Cir, 2002) the court held that physical changes in the brain resulting from chronic PTSD with weight loss and sleeplessness were not compensable as being mere physical manifestations of psychiatric injury. The passenger’s accident injury was to her leg which was not the cause of her PTSD which would have occurred in any event. It was said that “allowing a physical injury, no matter how minor or unrelated, to trigger recovery of any and all post-crash mental injuries would violate both the letter and the spirit of Floyd”. There was insufficient evidence of physical changes to the brain even if such injury was acceptable as a matter of law. In Doe v United Airlines Inc (2008) 160 Cal App 4th 1500, 73 Cal Rptr 3d 541, the Claimant awoke to find that the passenger seated next to her had placed her hand on private parts of his anatomy and consequently suffered PTSD, sleep disruption and flashbacks. The court found following Floyd that recovery was limited to “direct, concrete, bodily injury” as opposed to a “mere manifestation of fear or anxiety”. No damages were awarded for her PTSD or weight loss it being a “physical manifestation of her emotional distress”. Weaver was determined to be wrongly decided.

In a Scottish case, King v Bristow Helicopters Ltd [2001] 1 Lloyd’s Rep. 95, a helicopter passenger sustained psychiatric but not physical injury subsequent to a hard forced landing on an oil production platform. His psychiatric disease led to the onset of a peptic ulcer. Lord Steyn stated that somebody who suffered no physical injury but suffered psychiatric injury has no claim under art.17 but in two circumstances liability may arise. First, where pain and suffering caused by physical injury leads to mental injury. Second, where an accident causes psychiatric injury, which in turn causes adverse physical symptoms, such as strokes, miscarriages or peptic ulcers, here the art.17 requirements are satisfied because bodily injury could be shown. If a passenger provides evidence that the psychiatric condition suffered has caused an adverse physical symptom or that it was the direct expression of physical changes to the brain’s structure caused by the accident, he has a claim under the Convention.

In an English case, Morris v KLM Royal Dutch Airlines [2001] EWCA Civ 790; [2002] Q.B. 100, a 16-year-old girl was indecently assaulted by a male passenger seated next to her on a flight from Kuala Lumpur to Amsterdam. She suffered no physical injury, but claimed clinical depression and that the latter constituted bodily injury. The House of Lords held that the natural meaning of the words “bodily injury” was an injury to the body not extending to mental injury. The purpose of the Convention was to compensate those who suffered damage in the sense of legally recognised harm, and that harm had to be interpreted in a manner consistent with the intention of the Convention. Accordingly, “bodily injury” did not extend to psychiatric illness, Eastern Airlines Inc v Floyd 499 U.S. 530 followed.

Accident Location: The accident must take place on board the aircraft or in the course of any of the operations of embarking and disembarking. This clearly includes accidents occurring whilst the passenger ascends or descends steps or walks along air bridges or ramps leading to or from the aircraft, but reference to “any of the operations” suggests wider potential liability. At what point is the passenger embarking and disembarking from the aircraft, is it from the moment they step into the departure airport until the moment they leave the destination airport? Significance has been attached to the question whether the passenger is under the carrier’s control which is often identified by his location in the airport and the stage reached in the embarkation or disembarkation procedures. In Adatia v Air Canada [1992] P.I.Q.R. P238 the key question is whether, on the wording of art.17(1), the passenger’s movement through airport procedures and his location indicate that he was embarking on or disembarking, and such operations must relate to a particular flight on a particular aircraft. In Adatia, a passenger trapped between a wheelchair and the side of a travelator and suffering injury had no claim as she was not in the course of any of the operations of disembarking. The Claimant was not in the control of the carrier and could choose her own route through the airport.

The Hong Kong Court of Appeal regarded the obligations of the carrier towards unaccompanied minors as completely separate to those related to international carriage in Ong v Malaysian Airline System Bhd (2008) HKCU 441 CA so it made no difference that the child was injured in a location (the immigration procedures queue) not normally regarded as within the operation of disembarking.

In Galvin v Aer Rianta Irish High Court (Circuit Appeal), 13 October 1993 Barr J. stated that the accident to the passenger must relate to a specific flight and occur when he is actually entering or about to enter the aircraft or, alternatively, if it happened in the terminal or on airport premises, the accident location must be a place where the passenger was obliged to be whilst in the process of embarkation. This was applied in Phillips v Air New Zealand Ltd [2002] EWHC 800 (Comm); [2002] 1 All E.R. (Comm) 801 where a wheelchair passenger was injured on an airport terminal escalator whilst being taken to the gate in response to a boarding announcement. The Claimant was held to be in the process of embarking. Cases in the United States have concentrated on passenger location. Passengers descending an escalator towards immigration or arriving in the baggage reclaim area were found not to be in the process of disembarkation, despite retaining passenger status whilst inside the terminal. This might only take a few minutes from stepping off the aircraft. However, embarkation may take much longer via the check in, departure lounge and gate area and each phase involves more control being exerted over passengers by the carrier’s ground handling agents and employees.

In Day v Trans World Airlines Inc 528 F 2d 31 (2nd Cir 1975) a tripartite test based on what the passenger’s were doing (activity), under whose direction (control) and their position at the time of the incident (location) rendered the carrier liable for injury inflicted by terrorists to passengers queuing for entry to the departure gate lounge. In Evangelinos v Trans World Airlines Inc 550 F 2d 152 (3rd Cir 1976), the “Day test” was applied, however, with limited weight attached to the control test, the reason being that strict control at check-in diminishes thereafter until it is reimposed at the departure gate. The court also took into consideration the fact that terrorism could be a “hazard of air travel”.

Examination of the United States case law, on the basis of location, indicates that once passengers are in the departure lounge and a boarding announcement calls them to the departure gate, they are then under the carrier’s control. In Fazio v Northwest Airlines Inc 30 Avi 15,101 (WD Mich 2004) disabled passengers who requested but did not receive wheelchairs and were injured passing through a transit airport, could claim under art.17(1) because they were subject to the carrier’s “direction and control”.

Article 17(1) liability will also arise where disembarking passengers are injured on the apron or on an apron transit bus but will not arise when the passengers safely reach a point in the airport terminal unless that point and the passengers are still under carrier control. Problems have arisen where an act performed at one time causes damage later. In Singh v North American Airlines 426 F Supp 2d 38 interference with a passenger’s luggage after check-in by airline employees, who used that luggage to illegally transport drugs, led to the passenger’s arrest after his exit from the destination airport. Since accident refers to the cause not the effect, the injury-causing event, viz the mislabelling of narcotics laden luggage with the passenger’s name occurred during embarkation and was within the art.17 accident definition. In Bunis v Israir GSA Inc 32 Avi 15,417 (ED NY 2007) the Claimant waited 20 minutes for a ground handling agent to deliver a requested wheelchair to the aircraft door but gave up waiting and walked to the baggage reclaim area. He subsequently suffered chest pains and was taken to hospital. The accident was the failure to bring the wheelchair to the aircraft door when the passenger was disembarking. Murillo v American Airlines Inc 34 Avi 15188 (SD Fla, 2010) illustrates a more extreme version of the same point.

Air carriers’ liability: injury to passengers

For the victims of airliner accidents, the situation they face is not only complex from a technical perspective, in terms of identifying the chain of events that caused the accident, but it is also complex from a legal perspective in that there can be multiple causes of action available (such as international conventions, product liability, common law negligence) against multiple entities (a number of entities could contribute to causing an air accident – the airline, aircraft manufacturer, sub-component manufacturer(s), maintainer, air traffic control provider and others), and in multiple jurisdictions. (i.e. there may be several jurisdictions available, such as the domicile of airline, domicile of manufacturer/ sub-component manufacturer/ other parties that contributed to the accident, domicile of passenger, place of accident, country of flight destination).

The cause of action against the carrier depends on whether the passenger’s flight is an internal domestic flight within one country or whether the flight can be classified as an international flight.

Domestic flights: For an internal domestic flight, the cause of action against the carrier will generally depend on the laws of the country in which the flight took place. Needless to say, there can be significant differences in airline liability laws between different countries, particularly in relation to the compensation available. For instance, in some countries the law may allow a domestic carrier to cap the liability in the Terms and Conditions of Carriage to a very low amount, such as a $20,000 limit per passenger -(In the Sita Air Dornier D228 (9N-AHA) crash at Kathmandu, Nepal, on 28 September 2012, the carriers Terms and Conditions of Carriage limited their liability to US$20,000 per passenger in the case of death or injury), whereas other countries laws may provide that the liability of a carrier to passengers on a domestic flight cannot be limited. (For the Dana Air MD-83 (5N-RAM) crash near Lagos, Nigeria, on 3 June 2012, the Nigerian Civil Aviation (Repeal and Re-Enactment) Act 2006, Sch.III art.21 provided that the carrier is strictly liable to US$100,000 for the death or injury of each passenger and that it can only avoid liability for damages that exceed US$100,000 if the carrier proves that “such damage was not due to the negligence ….. of the carrier…. or such damage was solely due to the negligence …….. of a third party”).

In terms of a domestic flight within a EU country, Regulation 889/2002 (amending Council Regulation 2027/97 on air carrier liability in the event of accidents), provides that flights by EU carriers (art.1.3.1.(b)) are subject to the rules and limits imposed by the Montreal Convention 1999 (art.1.4.1) (Montreal Convention).The Montreal Convention (Convention for the Unification of Certain Rules for International Carriage by Air – Montreal, 28 May 1999), which will be discussed in more detail below, is the latest international convention that sets liability rules for international flights, and for injuries and deaths there is no cap on the liability of the airline. However, the Regulation 889/2002 goes further than the Montreal Convention in relation to advance payments, in that it requires that the carrier must make an advance payment to meet immediate economic needs on a basis proportional to hardship within 15 days after the identity of the person entitled to compensation has been established (art.1.7.1). In the event of death, it provides that the advance payment shall not be less than the equivalent in Euro of 16,000 SDR (art.1.7.2).

As such, this EC Regulation provides a level of uniformity and certainty for flights by EU carriers within all EU countries. However, for domestic flights in countries outside the EU, the law of the country concerned needs to be understood. Additionally, it is important to ascertain whether the domestic flight was part of a round trip involving other flights from/ to other countries. If this is the case, the domestic carrier’s liability would be governed by the applicable international convention (see the section on successive carriage/ contracting carrier below).

International flights: The majority of international flights (International carriage is defined in art.1 of the Montreal Convention 1999), are subject to the rules established by the international legal instruments known as the Warsaw System. These date back to 1929 and, as indicated above, the latest convention is the Montreal Convention. Provided that the departure and destination country are both parties to the Montreal Convention, this is the applicable convention governing the liability of the carrier for passenger injury or death (Montreal Convention 1999 art.1(2)). As the Montreal Convention has been entered into force by more than 115 countries, this article will focus on carrier liability under this convention.

Exclusivity: The Montreal Convention is the exclusive cause of action against the airline for the death or injury of a passenger (Montreal Convention 1999 art.29. Sidhu v British Airways plc; Abnett v British Airways plc [1997] AC 430, [1997] 1 All ER 193. HL). However, as indicated above, in addition to this the passenger may also have other causes of action available against other entities who have contributed to the injury/ death, such as a product liability action against a manufacturer.

Principles of liability: For the airline to be liable under the Montreal Convention, the claimant has to prove that there was an accident that caused the death or bodily injury of a passenger (Montreal Convention 1999 art.17(1)). An accident has been defined as an unexpected or unusual event or happening that is external to the passenger. As such, there will not be an accident and the carrier will not be liable where a bodily injury is due to the passenger’s particular reaction to the normal operation and normal features of the aircraft (United States Supreme Court – Air France v Saks (1985) 1 S & B Av R VII/165, 105 S Ct 1338 (1985), 18 Avi 18, 538), Barclay v British Airways Plc [2008] EWCA Civ 1419; [2010] Q.B. 187). Bodily injury requires that the passenger suffers a physical injury. Where a passenger suffers just a psychological injury, this is not recognised as a bodily injury and is not recoverable under the Montreal Convention. However, if the psychological injury is caused by a bodily injury or causes a bodily injury, then the passenger could recover under the Montreal Convention (Eastern Airlines Inc v Floyd (1991) 1 S & B Av R VII/633, 111 S Ct 1489 (1991), 23 Avi 17, 367, King v Bristow Helicopters Ltd [2002] UKHL 7; [2002] 2 A.C. 628). The accident that causes the bodily injury has to occur on board the aircraft or in the course of any of the operations of embarking or disembarking (Montreal Convention 1999 art.17(1)).

Compensation: If the passenger can establish that there has been an accident that has caused bodily injury/death, then under art.21(1) of the Montreal Convention the airline is strictly liable for proven damage up to 113100SDR, unless it can prove that the passenger has caused or contributed to the injury/death by negligence or other wrongful act or omission, in which case the carrier shall be wholly or partly exonerated from liability (art.20).

Liability of the airline for proven damages is not limited under the Montreal Convention, unless the carrier can prove that:-

  • such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents (art.21(2)(a)); or
  • such damage was solely due to the negligence or other wrongful act or omission of a third party (art.21(2)(b)).

As the majority of air accidents are caused by a chain of events which often involve a contribution by the carrier, the burden of proving the defences by the carrier are a difficult hurdle to clear, although there have been some cases where a carrier has been able to. (Gary Wright v American Airlines Inc ET AL 4:08-CV-660-A. (N.D. Tex. Feb 08, 2010)).

Advance payments: Article 28 of the Montreal Convention deals with advance payments and states “In the case of aircraft accidents resulting in death or injury of passengers, the carrier, must, if required by its national law, make advance payments without delay to the natural person or persons who are entitled to claim compensation in order to meet immediate economic needs of such person”. As the minimum amount of the advance payment for death and payment timing is not specified, and as the term “if required by national law” is not defined, when compared to the advance payment provision in Regulation 889/2002 art.1.7.1, there is less certainty on the issue of advance payments under the Montreal Convention.

Jurisdiction: Article 33 of the Montreal Convention provides that an action for damages must be brought, at the option of the plaintiff, before one of the following:

  • The court of the domicile of the carrier.
  • The court of the carrier’s principle place of business.
  • The court where the carrier has a place of business through which the contract had been made.
  • The court at the place of destination.
  • The court where at the time of the accident the passenger had his or her principle and permanent residence and to or from which the carrier operates services for the carriage of passengers (art.33(2)).

As such, a passenger or a family of a deceased may have more than one jurisdiction in which they can bring a claim against the carrier. This is further complicated by the articles of the Montreal Convention concerning successive carriage and contracting carriers.

Successive carriage – arts 1(3), 36(1) and 36(2): Where there are a number of different flights performed by several successive carriers that are purchased as part of a round trip that involves international carriage, and this is regarded by the parties as a single operation, the liability of each carrier for an accident is governed by the Montreal Convention, even if the flight on the carrier concerned is a non-international domestic flight. It is only the carrier conducting the carriage where the accident occurred that is liable (art.36(2)), but this carrier is liable in all the jurisdictions available under the Montreal Convention.

Contracting carrier: Where a contracting carrier makes an agreement with a passenger for an international flight/ round trip but authorises the flight(s) with another carrier(s) (actual carrier(s)), the contracting carrier is liable under the Montreal Convention for any injury/death on the actual carrier(s) flight(s). In addition, the carrier on whose flight the injury/death occurred is also liable under the Montreal Convention (arts 39, 40 and 41). As such, the passenger/family of the deceased have a Montreal Convention cause of action against the contracting and actual carrier. In terms of jurisdictions available, under art.46 of the Montreal Convention, any action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before a court in which an action may be brought against the contracting carrier, as provided in art.33, or before the court having jurisdiction at the place where the actual carrier has its domicile or its principal place of business.

Although the Montreal Convention was created to provide uniform rules, in reality a major airline accident affecting a group (if not all) of the passengers can result in different jurisdictions, causes of action and different levels of damages being available to different passengers. The following is an example using three passengers fatally injured on a domestic (internal) flight in Nepal, following take-off from Kathmandu:

English Passenger 1:

Successive carriage

  • London – Kathmandu (EU carrier)
  • Kathmandu – Lukla – Kathmandu (Nepal carrier)
  • Kathmandu – London (EU carrier)

The passenger purchased the domestic Nepal flight separately when in Nepal, meaning that it was not part of a round trip/successive carriage.

This passenger can only bring a claim against the Nepalese carrier in Nepal under Nepal law, meaning the damages available are quantified and capped in accordance with the domestic laws of Nepal.

English Passenger 3:

  • A US airline is contracting carrier for entire round trip.
  • New York – Kathmandu (US carrier)
  • Kathmandu – Lukla – Kathmandu (Nepal carrier)
  • Kathmandu – Paris (EU carrier)

This passenger can bring a claim against the US contracting carrier or the Nepal actual carrier under the Montreal Convention. The jurisdictions available are the US (domicile of contracting carrier), France (final destination) and England (domicile of passenger and US carrier conducts business in/flies to that jurisdiction).

this example it can be seen that each passenger has different jurisdictions available -Nepal, France, England and the US – but passenger 2 is restricted to Nepal and its domestic laws. As such, passengers sitting next to each other on an accident flight can have very different options available when bringing a claim against a carrier. This can have a significant impact on the damages available, with the family of passenger 2 being limited to the very low damages available in Nepal compared to the family of passenger 3 potentially receiving seven figure compensation in the US.

Limitation: Under art.35 of the Montreal Convention, the limitation period is two years from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. If an action is not brought within this period the right to bring an action is extinguished. This rule has been applied by many courts in different jurisdictions, including the English courts (Sidhu v British Airways plc (27 January 1995, unreported), CA), leading to dismissal of claims. Furthermore, if the case is brought in time but there is an error, such as the correct identity of the defendant, it is likely that the court will not allow an amendment of the claim if limitation has expired. In a number of decisions the English courts have held that a claim under the Montreal Convention cannot be amended pursuant to the English rules of procedure after expiry of the two year limitation period. (Hall v Heart of England Balloons Ltd [2010] 1 Lloyd’s Rep. 373; Jeffrey v Thomas Cook Airlines Ltd (Macclesfield Cty Ct, 2 June 2010); Foster v Thomas Cook Group plc (Newcastle-upon-Tyne Cty Ct, 31 March 2011).

As such, in addition to the complexities of preparing the case and choosing the best jurisdiction, it is crucial that the claim is correctly brought against the carrier within the two year limitation period, to protect the victims’ rights.