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Applicable treaties

Major air law treaties

To which major air law treaties related to carrier liability for passenger injury or death is your state a party?

The United States is a party to the following air law treaties, which have direct effect in the United States:

  • Warsaw Convention (1929) - Convention for the Unification of Certain Rules Relating to International Carriage by Air; US entry into force 31 July 1934;
  • Hague Protocol (1955) - Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929; US entry into force 14 December 2003;
  • Tokyo Convention (1963) - Convention on Offences and Certain Other Acts Committed on Board Aircraft; US entry into force 4 December 1969;
  • Montreal No. 4 (1975) - Montreal Protocol No. 4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929 as Amended by the Protocol done at The Hague on 28 September 1955; US entry into force 4 March 1999; and
  • Montreal Convention (1999) - Convention for the Unification of Certain Rules for International Carriage by Air; US entry into force 4 November 2003.

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?

Yes, courts interpreting the Montreal Convention look to existing Warsaw Convention case law because the Montreal Convention ‘contains provisions that embrace similar language as the Warsaw Convention’ and ‘so as not to result in a complete upheaval of the “common law” surrounding the Warsaw Convention’. See Baah v Virgin Atlantic Airways, Ltd, 473 F Supp 2d 591, 595-96 (SDNY 2007). Thus, the Warsaw Convention has persuasive value in interpreting parallel provisions of the Montreal Convention.

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?

Yes. Where the Montreal or Warsaw Convention apply, it exclusively governs all claims within its scope and pre-empts any state law claim. See El Al Israel Airlines, Ltd v Tseng, 525 US 155 (1999); Edem v Ethiopian Airlines Enterprise, 2009 WL 4639393 at *5 (EDNY 30 September 2009); Booker v BWIA West Indies Airways Ltd, 2007 WL 1351927 at *2 (EDNY 8 May 2007); King v American Airlines, 284 F 3d 352, 358 (2d Cir 2002); and Nwokeji v Arik Air, 2017 WL 4167433 (D Mass 20 September 2017).

Definition of ‘carrier’

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

US courts broadly define ‘carrier’ for purposes of the Montreal Convention to include entities performing services on behalf of a carrier that the carrier would otherwise perform itself. See Vumbaca v Terminal One Grp Ass’n LP, 859 F Supp 2d 343 (EDNY 2012) (terminal operator is carrier); Am Home Assur Co v Kuehne & Nagel (AG & Co) KG, 544 F Supp 2d 261 (SDNY 2008) (ground handler is carrier); Waxman v CIS Mexicana De Aviacion, SA De CV, 13 F Supp 2d 508, 514 (SDNY 1998) (finding an aircraft cleaning service to be acting in furtherance of the airline’s contract of carriage and therefore covered by the Warsaw Convention); In re Air Disaster at Lockerbie, Scotland on 21 December 1988, 776 F Supp 710, 714 (EDNY 1991) (stating that the Warsaw Convention covers agents that ‘perform services in furtherance of the contract of carriage, and to those agents performing services within the scope of the Convention that the airline is otherwise required by law to perform’).

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?

Accident

The leading case in the US is Air France v Saks, 470 US 392 (1985), which defined ‘accident’ under the Warsaw Convention as injury ‘caused by an unexpected or unusual event or happening that is external to the passenger’. The courts follow Saks in Montreal Convention cases. The US courts flexibly apply this definition after assessment of all the circumstances surrounding a passenger’s injuries. But 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 there is no liability under the Convention. Many recent cases involve allegations regarding the failure to warn, assist, or render adequate medical assistance following the initial injury. For example, in Husain v Olympic Airway, SA, 540 US 644 (2004), the Supreme Court, in a 6:2 decision, held that the failure to reseat an asthmatic passenger farther away from the smoking section on a smoking flight constituted an ‘accident’ within the meaning of article 17 of the Warsaw Convention.

A minority of courts, however, especially in the passenger assault context, have used a two-pronged approach requiring evidence demonstrating: (i) an unusual or unexpected event or happening external to the passenger; and (ii) the event was a ‘malfunction or abnormality in the aircraft’s operation’.

Bodily injury

In Eastern Airlines v Floyd, 499 US 530 (1991), the US Supreme Court held that under the Warsaw Convention damages for pure mental anguish injuries are not recoverable because such injuries cannot be considered a ‘bodily injury’ within the meaning of article 17. The Court, however, expressed ‘no view as to whether passengers can recover for mental injuries that are accompanied by physical injuries . . . because respondents do not allege physical injury or physical manifestation of injury’. Following Floyd, the lower courts have interpreted the ‘bodily injury’ requirement not to include physical manifestations of mental injuries and require the plaintiff to demonstrate direct, concrete, bodily injury as opposed to mere manifestation of fear or anxiety. Even when there is a bodily injury, most courts limit the mental anguish damages to those caused by or flowing from the physical injury. See Jacob v Korean Air Lines Co, 606 Fed App’x 478 (11th Cir 2015), cert denied, 136 S Ct 267 (2015); Bassam v Am Airlines, Inc, 287 Fed App’x 309 (5th Cir 2008); Ehrlich v American Airlines, Inc, 360 F 3d 366 (2d Cir 2004); and In re Air Crash at Little Rock Arkansas, on 1 June 1999 (Lloyd), 291 F 3d 503 (8th Cir 2002). However, one recent case found that mental anguish damages are recoverable so long as there is a bodily injury without regard to causation (Doe v Etihad Airways, 2017 WL 3723233 (6th Cir 2017)). In 2017, however, the Court of Appeals for the Sixth Circuit declined to follow the mainstream view and interpreted article 17(1) of the Montreal Convention to allow for the recovery of emotional or mental damages, so long as they are traceable to the ‘accident’, regardless of whether they are caused directly by the bodily injury. See Doe v Etihad Airways, 870 F 3d 406 (6th Cir 20 August 2017), cert denied, 139 S Ct 1548 (2018).

‘In the course of any of the operations of embarking or disembarking’

Courts consider several factors when determining whether a passenger is in the course of any of the operations of embarking or disembarking the aircraft, such as:

  • the passenger’s activity at the time of the injury (eg, imminence of actual boarding);
  • the passenger’s location at the time of the injury (eg, physical proximity to the gate); and
  • the degree of control being asserted over the passenger at the time of injury (eg, restrictions, if any, on the passenger’s movement).

The relevant test is flexible. In general, the courts consider the nature of the activity in which the passenger is engaged to determine if that activity can fairly be considered part of ‘the operations of embarking or disembarking’ and find that control is an integral factor in evaluating both location and activity. The proximity of the passenger to the aircraft, both physically and in terms of time, and the more controlled the passenger’s movements are by the carrier, the more likely it is that the passenger will be deemed to have been embarking or disembarking at the time of the accident.

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?

Warsaw Convention article 20 ‘all necessary measures’ defence

US courts do not literally require a carrier to take ‘all necessary measures’ because if all such measures had actually been taken, the injury would not have occurred. Rather, the clause has been construed to mean ‘all reasonable measures’.

Montreal Convention article 21 no negligence defence

US courts apply traditional negligence principles. For a defendant airline to demonstrate that it was not negligent, it can show that it had no duty to the plaintiff, that it did not breach any duty that did exist, or that the injury suffered by the plaintiff was not proximately caused by any breach made by the defendant. Most significant is that the carrier bears the burden of proof on this issue.

Wilful misconduct

The burden of proof establishing wilful misconduct is on the claimant and the standard is high. Negligence will not suffice, nor even gross negligence or recklessness judged objectively. Rather, the claimant must show that the carrier either intended to cause the damage or acted recklessly with subjective knowledge that the damage would probably result. Moreover, the US courts apply a subjective, rather than objective standard. ‘[W]hile an objective test asks whether an actor “should have known” of an obvious risk, the subjective test requires, at a minimum, showing that the actor “must have known” of the risk’ (Bayer Corp v British Airways, LLC, 210 F 3d 236, 238-39 (4th Cir 2000)).

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?

No. There is no regulation or statute requiring advance payments. But in practice, carriers do so on a case-by-case basis.

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?

The domicile and principal place of business of the carrier - an air carrier has only one domicile, which is the place of its incorporation or its headquarters. The carrier’s principal place of business also generally is the carrier’s place of incorporation, but may differ depending on the facts.

The place of business through which the contract has been made - generally, in the transportation of passengers, the relevant ‘contract of transportation’ is evidenced by the passenger ticket. The ‘place of business through which the contract has been made’ is the place where the passenger ticket was purchased or issued (eg, a travel agent authorised to issue passenger tickets on behalf of the carrier).

The place of destination - for the purposes of article 28(1) of the Warsaw Convention, and article 33(1) of the Montreal Convention, the ‘place of destination’ is determined by reference to the contract of carriage and is the place stated in the passenger ticket as the ultimate destination of the transportation. The place of origin and the place of destination are the same for round-trip transportation.

The principal and permanent residence of the passenger - article 33(3) makes clear that nationality should not be the determining factor, but may be considered as one of several factors, for determining the passenger’s ‘principal and permanent residence’. The court in Hornsby v Lufthansa German Airlines, 593 F Supp 2d 1132, 1137-38 (CD Cal 200) addressed the meaning of this phase and found that intent must also be relevant to the phrase ‘principal and permanent residence’. The court explained that the phrase ‘fixed and permanent abode’ is closer in meaning to the word ‘domicile’ than the word ‘residence,’ and that the intent of the party is relevant to determining his or her ‘fixed and permanent abode’.

Forum non conveniens - US courts traditionally have entertained forum non conveniens motions even where jurisdiction existed under article 28 of the Warsaw Convention. In Hosaka v United Airlines, Inc, 305 F 3d 989 (9th Cir 2002), however, the court held that the doctrine of forum non conveniens is not available to protect airlines from litigation in an inconvenient forum where a suit is brought in a jurisdiction permitted by article 28 of the Warsaw Convention.

The first court to address the availability of forum non conveniens dismissal under the Montreal Convention declined to follow Hosaka and dismissed an action even though article 33 jurisdiction existed in the United States. See In re West Caribbean Airways, SA, 619 F Supp 2d 1299 (SD Fla 2007), aff’d, Pierre-Louis v Newvac Corp, 584 F 3d 1052 (11th Cir 2009). The court noted that article 33(4) expressly states that questions of procedure are governed by the law of the forum and that the forum non conveniens doctrine is a procedural matter. Therefore, the court found that the text of the Convention permits application of the doctrine.

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 limitations period prescribed by article 29 of the Warsaw Convention and article 35 of the Montreal Convention is a strict condition precedent, absolutely barring any and all claims for damages arising out of ‘international carriage’ if not timely commenced. As a condition precedent, it is not subject to tolling or waiver and bars third-party actions and cross-claims not brought within two years after accrual. However, US courts have held that article 35 of the Montreal Convention does not apply to bar contribution action by one carrier against another. See Chubb Ins Co of Europe, SA v Menlo Worldwide Forwarding, Inc, 634 F 3d 1023 (9th Cir 2011).

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 Warsaw Convention was silent on this issue and some courts had found that passengers could only bring an action against the operating carrier on whose aircraft the injuries were sustained. See Shirobokova v CSA Czech Airlines, Inc, 2005 WL 1618764 (SDNY 8 July 2005) (a code-share partner could not be held liable under the Warsaw Convention for injuries sustained to a passenger on board an operating carrier’s flight). However, the liability among those carriers would then be an issue to be resolved among the carriers by contract or contribution or indemnity claims under the applicable local law.

Under the Montreal Convention, courts apply the standards set forth in articles 39 to 48. In an action arising out of the West Caribbean Airline flight 708 accident, the Eleventh Circuit court found that an entity that chartered an aircraft from an airline and thereafter entered into an agreement with a travel agent who sold the transportation on the aircraft to individual passengers qualifies as a ‘contracting carrier’ for purposes of article 39 of the Montreal Convention. See Pierre-Louis v Newvac Corp, 584 F 3d 1052 (11th Cir 2009).

Domestic carriage – liability for passenger injury or death

Governing laws

What laws in your state govern the liability of an air carrier for passenger injury or death occurring during domestic carriage?

The state law of the relevant state in the United States would govern, subject to a choice of law analysis and resolution of federal preemption issues. However, where the death occurs on the high seas, the Death on the High Seas Act (DOHSA), 46 USC sections 30301 et seq, governs. The standard for liability for domestic carriage, however, is generally accepted to be governed by federal aviation standards for matters pertaining to aircraft operation and aviation safety. For claims involving aircraft or engine manufacturing defects as well as claims related to airport security issues, the law is still developing but the standard for determining liability will either be based on federal standards and regulations or state common law and reasonable care standards.

Nature of carrier liability

What is the nature of, and conditions, for an air carrier’s liability?

This is an issue that we believe should be governed by federal safety standards, but may be governed by the applicable state law and a duty of ‘ordinary care commensurate with the existing circumstances’ albeit the older cases in some states have found that there is a heightened duty for common carriers.

Liability limits

Is there any limit of a carrier’s liability for personal injury or death?

There are no specific limits of liability applicable to domestic carriage and the general rule followed in the United States is that any such limits would not be enforceable. Damage issues are generally governed by state law. For the most part, limits for personal injury and death do not generally apply although the parties entitled to recover and the types of damages recoverable will vary from state to state and be subject to choice of law analysis to determine which state’s damage law applies.

Main defences

What are the main defences available to the air carrier?

The defences will vary based on the facts and circumstances of the case but some of the more common defences include federal pre-emption, superseding and intervening cause, no duty, contributory or comparative negligence, foreseeability causation, acts of God and sudden emergency. In addition, pre-emption of state law liability standards, compliance with federal standards, absence of duty under either federal or state law, ‘price, route and service’ pre-emption under the Airline Deregulation Act.

Damages

Is the air carrier’s liability for damages joint and several?

This varies from state to state, but most states apply some type of joint and several liability and most states make the defendants jointly and severally liable for economic losses to a certain extent.

Rule for apportioning fault

What rule do the courts in your state apply to apportioning fault when the injury or death was caused in whole or in part by the person claiming compensation or the person from whom the right is derived?

The rule varies from state to state:

  • in a pure contributory negligence state (minority rule), a plaintiff cannot recover any damages if the plaintiff is even 1 per cent at fault;
  • in a pure comparative fault state, damages will be reduced by the plaintiff’s percentage of fault;
  • in a modified comparative fault state (majority rule), each party is held responsible for damages in proportion to their own percentage of fault, unless the plaintiff’s negligence reaches a certain designated percentage (eg, 50 per cent or 51 per cent), which would then bar or limit recovery by the plaintiff for economic or non-economic damages; and
  • most states also recognise that persons under a physical or age-related disability, such as minors, are held to a standard of care commensurate with their physical or age capacity while mental disability will generally preclude contributory fault.

Statute of limitations

What is the time within which an action against an air carrier for injury or death must be filed?

The rule varies from state to state:

  • personal injury - the statute of limitations for a personal injury action can vary from one to six years (two or three years is most common; and
  • death - the statute of limitations for a death action can vary from one to six years (two or three years is most common).

Similarly, the tolling rules and discovery rules vary among the states but as a general rule a statue of limitations with respect to a minor is tolled until the age of majority. This minor tolling rule does not apply, however, in an action governed by the Warsaw or Montreal Convention. See question 9.

Third-party actions

Seeking recovery

What are the applicable procedures to seek recovery from another party for contribution or indemnity?

The rule varies from state to state. In most states, a cause for contribution can be asserted in a separate action or by cross-claim, counterclaim or third-party claim in a pending action. However, there are some states that preclude such claims if the defendant is accused of intentional or wilful misconduct. The procedure for instituting a third-party action requires jurisdiction over the third-party defendants and service of a third-party summons and complaint setting forth the grounds for contribution and indemnity.

Time limits

What time limits apply?

The rule varies from state to state but the time is generally assessed from the date of liability assessment, settlement, or judgment (typically one to three years, but can be as long as five years). Most courts (including federal courts) establish a schedule for impleader and will generally adhere to it, especially if all discovery is completed and the action is otherwise ready for trial.

Liability for ground damage

Applicable laws

What laws apply to the liability of the air carrier for injury or damage caused to persons on the ground by an aircraft accident?

The United States is not a party to the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface (1952); the Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft (2009); or the Convention on Compensation for Damage Caused by Aircraft to Third Parties (2009). Thus, the liability of air carriers is based upon the applicable local state law applying traditional negligence principles. There is debate, however, about whether federal or state law standards will apply for determining liability, but generally speaking, aircraft damage on the ground is recoverable. Most states will generally preclude recovery of emergency service costs.

Nature and conditions of liability

What is the nature of, and conditions for, an air carrier’s liability for ground damage?

While earlier cases applied strict liability principles (many based on state statutes making the carrier absolutely liable), the modern cases apply standard negligence principles and have rejected claims based on trespass and invasion of property rights. But the debate is ongoing as to this issue as well as whether state or federal liability standards will apply.

Liability limits

Is there any limit of carriers’ liability for ground damage?

No. See question 13.

Main defences

What are the main defences available to the air carrier in a claim for damage caused on the ground?

The defences will vary based on the facts and circumstances of the case but some of the more common defences include federal pre-emption of state common law and compliance with federal standards, superseding and intervening cause, foreseeability, causation, Act of war, act of God and sudden emergency.

Liability for unruly passengers and terrorist events

Applicable laws

What laws apply to the liability of the air carrier for injury or death caused by an unruly passenger or a terrorist event?

The Tokyo Convention (1963)

The Tokyo Convention is the cornerstone of the international law regarding action taken in response to the myriad threats that may arise during a flight. The Tokyo Convention sought to add an element of certainty to the powers and authority of the aircraft commander to address these threats and, therefore, broadly defines its applicability.

The Convention extends not only to ‘offences against penal law’ but also to ‘acts which, whether or not they are offences, may or do jeopardize the safety of the aircraft or of persons or property therein or which jeopardize good order and discipline on board’. See Tokyo Convention, article 1. While the definition of what constitutes an ‘offence’ is not defined by the Tokyo Convention and is left to local law, the Convention does allow the aircraft commander to act whenever the commander has ‘reasonable grounds’ to believe that an act has been or is about to be committed that is a threat to ‘safety’ or ‘good order and discipline on board the aircraft’.

The primary means by which the Tokyo Convention sought to achieve its security and safety goals was to grant the ‘aircraft commander’, who is the ultimate authority on the aircraft while in flight, broad authority to take necessary action in response to acts on board the aircraft. If the aircraft commander has reasonable grounds to believe that a passenger may or does jeopardise safety or good order and discipline on board an aircraft, the Convention immunises the aircraft commander (and crew members and, in specific circumstances, even passengers) from liability for actions taken, including restraining and disembarking the passenger, in accordance with the Convention. See Tokyo Convention, articles 6, 8, 9 and 10. In Eid v Alaska Airlines Inc, 621 F 3d 858 (9th Cir 2010), cert. denied, 131 S Ct 2874 (2011), the court rejected the argument that the captain’s exercise of authority under the Tokyo Convention is to be reviewed with great deference. Rather, the court applied a standard akin to a negligence standard to assess the actions of the captain in disembarking a passenger.

Domestic law

This is another developing area of the law, but it is generally accepted that liability for terrorism or unruly passengers is determined by compliance with federal standards for security.

The Federal Aviation Act, 49 USC section 46501(2) establishes ‘special aircraft jurisdiction’ over crimes committed aboard aircraft and is intended to implement the undertakings of the US in the various international conventions relating to acts against civil aviation.

Section 46504 has been used to criminally prosecute a passenger on board aircraft who, inter alia, had been smoking in the lavatory.

Similarly, 14 CFR section 91.11 specifically prohibits interference with crew members and states: ‘No person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember’s duties aboard an aircraft being operated.’ See also 14 CFR sections 121.580, 135.129; 49 USC section 46319.

The penalties for violation of these provisions can lead to fines or imprisonment. See 49 USC section 46302 (civil penalty of not more than US$10,000 for each violation); 49 USC v46502 (aircraft piracy); 49 USC section 46507 (criminal penalties for false information and threats).

In addition, 49 USC section 44902 addresses the situation where an air carrier must or may refuse to transport passengers and property and allows the carrier to ‘refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety’. Most courts have interpreted section 44902(b) to give the air carrier broad discretion to decide whether to refuse passage for safety reasons and immunises the carrier from liability for actions taken unless the passenger can demonstrate that under the circumstances known to the airline at the time, its decision was unreasonable, irrational, arbitrary or capricious. See, for example, Cerqueira v American Airlines, Inc, 520 F 3d 1, 15 (1st Cir 2008); Cordero v CIA Mexicana de Aviacion, SA, 681 F 2d 669, 671 (9th Cir 1982); Williams v Trans World Airlines, 509 F 2d 942, 948 (2d Cir 1975); and Al-Watan v American Airlines, Inc, 658 F Supp 2d 816, 824 (ED Mich 2009).

The relevant standards of care for liability for terrorism or unruly passengers are considered sensitive security information and are not allowed to be publicly disseminated. If, however, the incident occurs in a non-sterile area of the airport, then it is possible that state law may determine liability under common law ‘reasonable care’ standards and generally be dependent on foreseeability of this type of event being established.

Nature and conditions of liability

What is the nature of, and conditions, for an air carrier’s liability for injury or death caused by an unruly passenger or a terrorist event?

Courts apply a negligence or fault-based standard where no treaty applies. Fault-based liability is determined by compliance with federal security standards. Ground-based liability is determined by state law reasonable care or negligence standards.

Liability limits

Is there any limit of liability for injury or death caused by an unruly passenger or a terrorist event?

Domestically, foreseeability factors can limit the scope of damages recoverable but most damage claims are governed by state law and not limited for terrorist events. However, if the Department of Homeland Security has certified a security system under the Safety Act:

  • punitive damages and pre-judgment interest penalties are not allowed;
  • joint and several liability for ‘non-economic damages’ is limited to an amount directly proportional to the defendant’s responsibility;
  • damages are reduced in amounts equal to compensation received from collateral sources, such as private insurance and other government benefits; and
  • liability is capped in an amount equal to the amount of insurance the Department determines the seller will be required to obtain and maintain.

Main defences

What are the main defences available to the air carrier in a claim for injury or death caused by an unruly passenger or a terrorist event?

The various treaty, statuary and regulatory provisions outlined in question 24. Additional defences include superseding and intervening criminal acts, lack of foreseeability and no duty, and compliance with applicable legal standards or federal pre-emption (statutory and regulatory) as aviation a highly regulated area by the US government. For in-flight and sterile area incidents, pre-emption for state law and compliance with federal security standards is the main defence. For state-law-based claims, foreseeability and scope of duty are the main defences.

Consumer protection and passenger rights

Applicable legislation

Summarise aviation-related consumer-protection laws or regulations related to passengers with reduced mobility, flight delays and overbooking, tarmac delay and other relevant areas.

Pursuant to 49 USC section 41712, the US Department of Transportation (DOT) may prohibit ‘unfair or deceptive practices or an unfair method of competition in the sale of air transportation’. Under this authority, the DOT has enacted various consumer protection regulations, the violation of which may subject air carriers to monetary fines or other penalties, or both.

For example, the Air Carrier Access Act, 49 USC section 41705, prohibits discrimination based upon a passenger’s mental or physical disabilities. 14 CFR Part 382 governs air carriers’ responsibilities under this law.

14 CFR Part 259 requires that air carriers have contingency plans for lengthy tarmac delays. The regulations require that carriers covered under these rules (US carriers and foreign carriers operating to and from the United States providing passenger service with aircraft of 30 or more passenger seats) adopt and submit contingency plans ensuring that the aircraft will not remain on the tarmac for over a specified amount of time (three hours for domestic flights and four hours for international) without an opportunity for its passengers to deplane, subject to certain exceptions such as for safety and security. The plan must include providing passengers with adequate food and water, medical attention, operable lavatory facilities and notifications during a delay.

14 CFR Part 250 addresses oversales and protection to passengers denied boarding. If a flight is oversold, the carrier must ensure that the fewest passengers possible are denied boarding involuntarily. Under 14 CFR section 250.2b(a), the carrier must request volunteers to give up seats prior to denying boarding passengers. Part 250 addresses the information a carrier must provide a volunteer giving up his or her seat. If having to resort to involuntary denials, the regulations govern the boarding priority rules the carrier must follow and the compensation a carrier must provide a bumped passenger.

Other aviation consumer protection regulations include rules pertaining to lost and damaged baggage (14 CFR Part 254), refunds (14 CFR Part 374), carrier on-time performance (14 CFR Part 234), advertising and price increases (14 CFR Part 399) and code-sharing disclosures (14 CFR Part 257).

Liability of government entities providing services to carriers

Relevant laws

What laws apply to the liability of the government entities that provide services to the air carrier?

Claims against a governmental agency are governed by the Federal Tort Claims Act (FTCA). See 28 USC section 2671 et seq. The FTCA provides an exception to the sovereign immunity generally enjoyed by the US government. The FTCA authorises recovery for personal injury, death, or property damage caused by negligent federal government employees acting within the scope of their federal employment. 28 USC section 1346(b). Liability generally is assessed in the same manner as against a non-governmental defendant, however, there are exceptions to liability under the FTCA. For example, a governmental actor will not be held liable for acts that are deemed to be a ‘discretionary function’.

Claims against state or local state entities depend on the applicable law of the specific state involved.

Nature and conditions of liability

What is the nature of, and conditions for, the government’s liability?

All actions against the federal government must be brought in federal court. Under the FTCA, a claimant must present an administrative tort claim (via a notice of claim) to the appropriate government agency for adjudication before filing an action in federal court. 28 USC section 2675(a). If the claim is denied, the claimant must file a federal court complaint within six months of the denial of the claim. If no agency action has been taken, the claimant may file an action any time six months after presenting the claim. 28 USC section 2401(b). FTCA statute of limitations requires claim be presented to the appropriate government agency within two years of accrual. 28 USC section 2401(b).

Claims against state or local state entities depend on the applicable law of the specific state involved but as a condition precedent to filing an action, most states and local state entities require some type of notice of claim.

Liability limits

Are there any limitations to seeking recovery from the government entity?

See question 29. Additionally, the United States is not liable for pre-judgment interest or punitive damages and its liability is assessed by the court and not a jury.

Criminal proceedings

Responsibility for accidents

Can an air carrier be criminally responsible for an aviation accident?

Yes but this is not common in the United States and focuses on intentional conduct (falsifying records or documents) (eg, ValueJet (1996), Alaska Airlines (2000) and Platinum (2005)).

Effect of proceedings

What is the effect of criminal proceedings against the air carrier on a civil action by the passenger or their representatives?

In the United States, there is no effect. A party can pursue a civil remedy even if criminal proceedings have been commenced.

Compensation

Can claims for compensation by passengers or their representatives be made against the air carrier through the criminal proceedings?

Generally no. But there are provisions for restitution as part of a sentence in a criminal case, ordering a defendant to compensate the victim for losses suffered as a result of the crime. However, the recovery is generally sought through the civil litigation process.

Effect of carrier's conditions of carriage and tariffs

Liability

What is the legal effect of a carrier’s conditions of carriage or tariffs on the carrier’s liability?

An airline’s tariffs on file with the US DOT and conditions of carriage constitute the contract of carriage between the passenger and the carrier, govern the rights of airline passengers and have the force of law. See Pan American World Airways, Inc v Overseas Raleigh Mfg, Ltd, 51 NY 2d 960, 963 (1980); Cenci v Mall Airways, Inc, 140 Misc 2d 907, 909 (NY Sup Ct 1988); see also Edem v Ethiopian Airlines Enterprise, 2009 WL 4639393, at *8 (EDNY 30 September 2009), aff’d, 501 Fed Appx 99 (2d Cir 2012); Seisay v Compagnie Nationale Air France, 1997 WL 431084, at *3 (SDNY 30 July 1997); Factor v Mall Airways, Inc, 1991 WL 196419, at *3 (SDNY 23 September 1991). ‘A properly filed tariff is binding on a passenger, regardless of the passenger’s actual knowledge of the tariff.’ Edem, 2009 WL 4639393 at *8 (quoting Seisay, 1997 WL 431084). However, limitations set forth in a carrier’s conditions of carriage are enforceable only if the passenger has been provided with notice of those conditions.

Damages

Damage recovery

What damages are recoverable for the personal injury of a passenger?

Personal injury

As with the Warsaw Convention, the Montreal Convention does not expressly address the issues of what compensatory damages may be recovered and who are proper claimants. The Convention leaves these issues to the domestic law applicable under the forum’s choice-of-law rules. In other words, except for the recovery of pure mental anguish and punitive damages - which are not recoverable under the Montreal or Warsaw Convention - the Convention simply provides a pass-through to the applicable domestic law to determine the types of recoverable compensatory damages and the claimants thereof (Zicherman v Korean Air Lines Co, Ltd, 516 US 217, 225 (1996)).

In the United States, the issue of what damages are recoverable can vary from state to state (and there could be certain applicable federal law under certain types of cases). As a general matter, US states allow a broad array of economic and non-economic damages. Economic damages include: medical expenses, costs of living with a disability, lost wages and pre- and post-judgment interest.

Non-economic damages may be difficult to calculate and damage awards may vary significantly between victims and may include:

  • pain and suffering;
  • loss of consortium;
  • hedonic damages for the intangible impact an injury has on a plaintiff’s life; and
  • punitive damages also are non-compensatory and are intended to punish a defendant for intentional or especially egregious conduct. They are available in most states but the standard is high. In order to avoid excessive punitive damage awards, courts typically limit punitive damages to less than 10 times the amount of compensatory damages. Moreover, punitive damages are not recoverable under the Montreal or Warsaw Convention.

Standing

Generally the claim is brought by the injured party, but a spouse may have a derivative claim for loss of consortium.

What damages are recoverable for the death of a passenger?

Every state in the United States has modified the common law rule by statute to provide for some form of wrongful death recovery. At the federal level, there are various types of federal wrongful death statutes that provide a remedy in specific situations. See DOHSA. In addition, the US Supreme Court has recognised a common law based wrongful death action under principles of general maritime law. See Moragne v States Marine Lines, Inc, 398 US 375 (1970).

These state and federal wrongful death statutes create a right of action for losses personally suffered by statutorily designated beneficiaries as a result of the death and can include recovery for pecuniary losses such as lost monetary support, and for non-pecuniary losses such as loss of society. In addition, most state and federal statutes provide a ‘survival action’ for the decedent’s pre-death pain and suffering.

While the specific provisions of the state and federal death statutes vary and have been differently interpreted with respect to recoverable damages, there are certain common provisions and elements.

Standing to sue

Under most state and federal wrongful death statutes, a wrongful death action may only be brought by and in the name of the personal representative of the deceased person. The personal representative is the person designated or appointed by a court as an administrator of the estate and has the sole authority to litigate, settle and compromise a wrongful death and survival action. The personal representative, however, has a fiduciary duty to protect and bargain for the rights of all the decedent’s beneficiaries and to turn over to them the appropriate share of any proceeds. A failure to do either may give rise to a cause of action against the personal representative.

Beneficiaries

State and federal wrongful death statutes set forth a coherent and well defined class of beneficiaries who can recover damages. These statutes generally limit recovery to the decedent’s spouse, parents, children and dependent relatives or next of kin. Some state statutes, however, also specifically allow siblings, grandparents or ‘heirs’ to assert a claim. An individual outside the enumerated class of beneficiaries may not recover any damages.

Recoverable damages

Generally, the types of damages that are recoverable under state and federal wrongful death statutes can be separated into two basic categories: economic or pecuniary damages and non-economic or non-pecuniary damages.

The precise types of economic or non-economic damages that are recoverable depends on the specific statute involved. While the specific provisions of the various state death statutes vary widely, most allow a broad range of both pecuniary and non-pecuniary damages. The federal death statutes, however, can be a bit more restrictive and some limit recovery to pecuniary damages.

Economic damages

In accordance with the objective of compensating family members who suffer a pecuniary loss due to a death, almost all state and federal wrongful death statutes allow recovery of ‘pecuniary loss’ for: (i) loss of support or maintenance, (ii) loss of services, (iii) loss of parental nurture, (iv) loss of inheritance and (v) funeral or burial expenses.

Non-economic damages

Non-economic damages can form a substantial portion of a wrongful death damage award. As noted in question 35, the concept of non-economic damages, however, is abstract and such damages are difficult for juries to quantify and to assess. Although most states now allow recovery of some type of non-economic damage, the problems of assessing and supervising the reasonableness of the size of some non-pecuniary awards, especially punitive damages, has plagued the courts for years. It is for this reason some states have attempted to place caps on such damages. The following are the most common types of such damages allowed:

Loss of society - consortium, love, affection, companionship

The concept of loss of society embraces a broad range of mutual benefits each family member receives from the other’s continued existence, including love, affection, care, attention, companionship, comfort and protection. An award for loss of society damages is especially difficult to compute, for the jury must calculate the value of the lost love and affection without awarding damages for the survivor’s grief and mental anguish, even though grief is probably the most tangible expression of the survivor’s emotional loss.

Survivor’s grief

Unlike damages for loss of society, which compensate for the loss of positive benefits, a decedent would have bestowed upon family members, survivor’s grief represents an emotional response to the wrongful death. Grief is intended to compensate the survivor for the harrowing experience resulting from the death of a loved one.

Hedonic damages

In the context of some non-death personal injury suits, courts have permitted recovery for loss of the quality or enjoyment of life (ie, the intangible impact an injury has on the life of the injured person). These damages are often referred to as ‘hedonic damages’. While such damages are a rapidly developing area of law in personal injury litigation, most state and federal courts have rejected the recovery of hedonic damages in wrongful death actions.

Pre-death pain and suffering

Almost all state and federal death statutes permit recovery for conscious pain and suffering in air crash and other traumatic situations. The state and federal statutes denying such pain and suffering damages are the exception (notably California and DOHSA). When allowed, courts require affirmative proof that the decedent: (i) survived the injury causing the event; (ii) was conscious and aware after the injury; and (iii) experienced pain and suffering. Where the record is devoid of any evidence from which it can be determined that a particular decedent survived, was conscious and endured pain and suffering, recovery must be denied. Although eyewitness testimony may not be necessary to sustain an award, there must be some evidence from which to infer that the decedent was conscious and capable of suffering pain after injury.

Punitive damages

Punitive damages are typically awarded when the defendant’s conduct has been especially egregious or outrageous. Punitive damages are not intended to compensate (ie, non-compensatory damages), but are viewed as private fines used to punish a defendant’s reprehensible conduct and to deter its repetition. For this reason, punitive damages were unavailable in wrongful death actions because most wrongful death statutes allowed only economic losses which compensated the beneficiaries. Today, almost half of the states allow the recovery of punitive damages for wrongful death either expressly or by judicial interpretation. At the federal level, however, many federal death statutes have been judicially construed to prohibit punitive damages. Moreover, punitive damages are not recoverable under the Montreal (article 29) or Warsaw Convention (judicial interpretation).

Pre and post-judgment interest

This may be awarded depending on the applicable law and jurisdiction. The rate often is set by statute and can vary depending on the jurisdiction (state versus federal). See question 46.

Accident investigation and family assistance

Investigatory authority

Who is responsible in your state for investigating aviation accidents?

The National Transportation Safety Board (NTSB) is charged with determining the probable cause of transportation accidents, promoting transportation safety and assisting victims of transportation accidents and their families. See 49 USC sections 1101 et seq. The NTSB is an independent agency of the US government, and not part of the DOT. It frequently makes recommendations to the DOT and the Federal Aviation Administration following an investigation, but it does not have the power to issue mandates to them. The rules applicable to the NTSB, located at Title 49 of the CFR, contain some provisions that are applicable to operators of aircraft, such as mandatory notification requirements in the event of the loss of an aircraft or certain accidents or equipment failures, see 49 CFR sections 830.5 and 830.6, reports and statements that must be made and filed with the NTSB following such occurrences, see 49 CFR section 830.15, and requirements for the preservation of aircraft wreckage, cargo, mail and records, see 49 CFR section 830.10.

Disclosure restrictions

Set forth any restrictions on the disclosure and use of accident reports, flight data recorder information of cockpit voice recordings in litigation.

‘No part of a report of the Board, related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report.’ See 49 USC section 1154(b) and 49 CFR section 835.2.

Based on the plain meaning of the statute, the final NTSB Report would not be admissible. However, over the years, the courts have issued conflicting opinions regarding the admissibility or use of factual portions or findings in the final report. Thus, despite the language of 49 USC section 1154(b), numerous courts have held that factual portions of the NTSB report are admissible and only the probable cause finding is excluded.

With respect to the discovery of the CVR recording and CVR transcript, 49 USC section 1154(a) states that a party in a judicial proceeding may not use discovery to obtain any part of a CVR recorder transcript that the NTSB has not made available to the public and a CVR recorder recording expect under certain limited circumstances.

Relevant post-accident assistance laws

Does your state have any laws or regulations addressing the provision of assistance to passengers and their family after an aviation accident?

Yes. US and foreign air carriers are required to file with the US NTSB a plan to address the needs of family members in an aircraft accident involving a ‘major loss of life’. The plan must address 18 points such as detailing the notification to family members about an accident, the handling of manifests, the training of support personnel, the management of personal effects, and the coordination of memorials. See Aviation Disaster Family Assistance Act in 1996, 49 USC section 41113 (US air carriers); and Foreign Air Carrier Family Support Act of 1997, 49 USC section 41313 (foreign air carriers).

While these Acts apply only to aviation accidents in the United States, many carriers have voluntarily followed their plans in incidents occurring outside the United States.

 

Insurance requirements

Mandatory requirements

Are there mandatory insurance requirements for air carriers?

Yes. 49 USC section 41112 requires certain minimum insurance. 14 CFR Part 205 provides aircraft accident liability insurance requirements. US and foreign direct air carriers, including commuter air carriers but excluding air taxi operators, must maintain third-party aircraft accident liability coverage of at least US$300,000 for third-party bodily injury or death and for damage to property with at least US$20 million per involved aircraft for each occurrence. Carriers, however, need only maintain coverage of US$2 million per involved aircraft for each occurrence for aircraft with no more than 60 seats or 18,000 pounds maximum payload capacity.

Carriers providing passenger air transportation also must maintain insurance coverage for bodily injury or death of passengers at a minimum of US$300,000, and, for involved aircraft in each occurrence, US$300,000 multiplied by 75 per cent of the number of aircraft passenger seats.

14 CFR Part 205 provides different minimums for 14 CFR Part 298 US taxi operators. Such operators must maintain third-party aircraft accident liability coverage for bodily injury or death of individuals at US$75,000 per person and a total of at least US$300,000 per aircraft for each occurrence. For loss or damage to third-party property, the operator must maintain at least US$100,000 for each occurrence. If transporting passengers, the air taxi operator must have insurance coverage for bodily injury or death of aircraft passengers of at least US$75,000 per passenger and US$75,000 multiplied by 75 per cent of the number of passenger seats per involved aircraft.

Litigation procedure

Court structure

Provide a brief overview of the court structure as it relates to civil aviation liability claims and appeals.

The US Constitution is the supreme law of the land. It creates a federal system of government in which power is shared between the federal government and the state governments. Thus, under the US constitutional system, both the federal government and each of the state governments have their own court systems.

Generally, however, both the federal and state court system are composed of courts of first impression (generally known as ‘trial courts’), where lawsuits are initially filed and heard by juries and judges, and intermediate appellate courts, where judges hear appeals from the courts of first impression following a final judgment and a Supreme Court that hears appeals from the lower appellate courts only by permission granted by that court.

Allowable discovery

What is the nature and extent of allowable discovery/disclosure?

Discovery is normally governed by the rules of the state or federal court (eg, Fed R Civ P 26-36), and will proceed for a limited amount of time prior to the trial. After the discovery ‘cut-off’ date, the court will hear pretrial motions and the parties will prepare for trial. There are several methods authorised in the rules of court for obtaining discovery from an opposing party, or even from a third party.

Several different forms of discovery are permitted by the applicable rules of court. They include automatic disclosures, document requests, interrogatories, requests for admissions, depositions (live or by written questions), subpoenas for documents or other tangible things directed to a party, and subpoenas for documents or other tangible things directed to a third person.

Evidence

Does the law of your state provide for any rules regarding preservation and spoliation of evidence?

Many states recognise a cause of action in tort for spoliation. Some states distinguish between spoliation by a third party and spoliation by a party to a case, allowing a separate claim to be made against the former, but allowing only discovery sanctions against the latter. The federal courts, and some of the state courts, do not recognise a separate cause of action for spoliation, but they have the authority to impose discovery sanctions for spoliation in the case in which it has occurred. If the court or jury determine that the destruction was done in bad faith, a ‘dispositive sanction’ (ie, dismissal or judgment by default) sometimes may be imposed. In less egregious situations, the court may instruct the jury to infer that if the evidence had not been destroyed, it would have proven the point in favour of the opposing party.

Recoverability of fees and costs

Are attorneys’ fees and litigation costs recoverable?

Not as a general rule. They have been awarded as sanctions under certain limited circumstances when allowed by statute. Moreover, federal courts possess certain ‘inherent powers’ not conferred by rule or statute ‘to manage their own affairs so as to achieve the orderly and expeditious disposition of cases’. That authority includes ‘the ability to fashion an appropriate sanction for conduct which abuses the judicial process’. See Goodyear Tire & Rubber Co v Haeger, 137 S Ct 1178, 1186 (2017)

Judgments and settlement

Pre and post-judgment Interest

Does your state impose pre-judgment or post-judgment interest? What is the rate and how is it calculated?

The availability and rate of pre- and post-judgment interest varies depending upon jurisdiction in the United States. For example, in New York, the statutory rate of pre- and post-judgment interest is 9 per cent. See NY CPLR section 5004. However, pre-judgment interest is not available in a personal injury action. In cases brought in federal court pursuant to federal question jurisdiction, pre and post-judgment interest is recoverable in any civil action. See 28 USC section 1961. The federal rate is significantly lower than that in New York (at least in recent years) as it is calculated using a rate ‘equal to the weekly average one-year constant maturity Treasury yield’.

Settlements

Is court approval required for settlements?

As a general matter, settlements need not be approved by a court and are not subject to challenge if the settlement was made in good faith. However, many jurisdictions require approval of settlements involving claims brought on behalf of infants or incompetent persons. See NY CPLR section 1207. If a settlement is not approved, it could be subject to later collateral attack by the infant upon reaching the age of majority or by someone acting on behalf of an incompetent person. Parties can seek approval of a settlement even if the claim is settled pre-litigation by commencing a special proceeding.

What is the effect of a settlement on the right to seek contribution or indemnity from another person or entity? Can it still be pursued?

The effect of a settlement on the right to seek contribution or indemnity varies depending on the jurisdiction. Among the statutes that address this issue are the Uniform Contribution Among Tortfeasors Act, the Uniform or Model Joint Obligations Act and the Uniform Comparative Fault Act. Some states have enacted their own distinct statutes. These statutes govern such issues as the effect a release of one tortfeasor has on another tortfeasor; whether a settling tortfeasor can recover for contribution or indemnity against a non-settling tortfeasor; and the amount a plaintiff can recover against a non-settling tortfeasor.

Are there any financial sanctions, laws or regulations in your state that must be considered before an air carrier or its insurer may pay a judgment or settlement?

Yes. The United States Department of Treasury’s Office of Foreign Assets Control (OFAC) administers a wide variety of financial sanctions regulations. These regulations prohibit transactions with certain individuals or entities, nations or regimes. While the OFAC regulations are primarily directed to US persons, which includes entities organised under the laws of the United States, some regulations have extra-territorial reach. Thus, both US and non-US insurers and insureds must consider the OFAC regulations before paying any settlements or judgments.

Updates and Trends

Updates & Trends

Updates and trends

Unmanned aircraft/drone laws and regulations

The federal government’s right to uniformly regulate navigation is a fundamental precept of our jurisprudence that has long been held applicable to developing technologies. The current structure for regulating and controlling the navigable airspace is predicated upon a uniform and exclusively federal system that precludes any attempt at operational regulation by state or local governments. Consistent with its long-standing mandate to safely and efficiently develop the national airspace, in 2012, the US Congress directed the Federal Aviation Administration (FAA) to integrate unmanned aircraft into the national airspace. The FAA promulgated sUAS rules on 21 June 2016, permitting the flight of sUAS at altitudes below 400 feet, subject to various restrictions, such as: requiring VLOS operations; banning UAS operations over anyone not involved with the operation; allowing UAS operations only within visual line of sight; and requiring one operator per UAS. See 14 CFR Part 107.