International carriage – liability for passenger injury or death

Montreal Convention and Warsaw Convention

Do the courts in your state interpret the similar provisions of the Montreal Convention and the Warsaw Convention in the same way?

There is an established body of precedent by Turkish courts in the interpretation of the Warsaw Convention, which is no longer in effect. Similar provisions of the Montreal Convention are interpreted similarly. Precedent of court decisions do not have the power of the law, but they are an influential guideline to both judges and attorneys in arriving at conclusions on issues that require interpretation and application of laws in real-life situations.

Do the courts in your state consider the Montreal Convention and Warsaw Convention to provide the sole basis for air carrier liability for passenger injury or death?

The Montreal Convention is considered by Turkish courts to be the sole basis of air carrier liability for injury to or death of passengers.

Definition of ‘carrier’

In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?

Any person or legal entity who enters into a contract with another person to carry passengers or goods, by air, is a carrier. In addition to this, any person or entity performing a contract of carriage by air, which has been entered into by another carrier, is also a carrier. The definition of carrier is not extended to employees, ground handling agents or and other service providers. However, they are deemed agents of the carrier, and can avail themselves of the liability limits in the Montreal Convention.

Carrier liability condition

How do the courts in your state interpret the conditions for air carrier liability - ‘accident’, ‘bodily injury’, ‘in the course of any of the operations of embarking or disembarking’ - for passenger injury or death in article 17(1) of the Montreal Convention and article 17 of the Warsaw Convention?

There is no definition of an accident in legislation. Any sudden, unexpected and unintended event that results in damage to property, injury or death is deemed an accident. Damages due to bodily injury have been described in the Turkish Code of Obligations to include costs of medical treatment, loss of earnings, losses arising from a decrease in or loss of ability to work, and jeopardy to one’s economic future. There is not enough precedent on the interpretation of the term ‘in the course of any of the operations of embarking and disembarking’.

No negligence defence

How do the courts in your state interpret and apply the ‘no negligence’ defence in article 21 of the Montreal Convention, and the ‘all reasonable measures’ defence in article 20 and the ‘wilful misconduct’ standard of article 25 of the Warsaw Convention?

The ‘no negligence’ and ‘all reasonable measures’ defences find application in other areas of the law as well as aviation. Turkish courts tend to interpret these concepts very narrowly. It is in very rare cases that these defences succeed. Breaking liability limits by alleging willful misconduct has not been tested before Turkish courts. In situations that lend themselves to interpretation, it is likely that courts will give the benefit of doubt to passengers rather than carriers.

Advance payment for injury or death

Does your state require that advance payment be made to injured passengers or the family members of deceased passengers following an aircraft accident?

There is no requirement in Turkish law for an advance payment to be made to the injured passenger or to their dependents in the case of death of a passenger, following an aircraft accident.

Deciding jurisdiction

How do the courts of your state interpret each of the jurisdictions set forth in article 33 of the Montreal Convention and article 28 of the Warsaw Convention?

Jurisdiction rules set forth in article 33 of the Montreal Convention will be strictly applied by Turkish courts. There is no application of the doctrine of forum non-conveniens in Turkish law. Jurisdiction either exists, or does not exist, and this is decided according to the strict rules that are laid down in the laws of procedure. Nothing is left to the discretion of the courts when deciding on issues of jurisdiction. Provisions of article 33 of the Montreal Convention constitute rules of procedure that are applicable just as any other rule of procedure in national laws.

Period of limitation

How do the courts of your state interpret and apply the two-year period of limitations in article 35 of the Montreal Convention and article 29 of the Warsaw Convention?

The two-year limitation period in article 35 of the Montreal Convention is applicable as an absolute limit and it will not be subject to tolling.

Liability of carriage

How do the courts of your state address the liability of carriage performed by a person other than the contracting carrier under the Montreal and Warsaw Conventions?

The actual carrier who performs a contract of carriage that was concluded by another carrier is also liable under the Montreal Convention, as defined and provided for in articles 39 and 40 of the convention.