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, as a general principle (Barclay v British Airways plc (2010) QB 187).

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, the UK courts have upheld the exclusivity of the Montreal and Warsaw Conventions as providing the sole basis for air carrier liability for passenger injury or death (Sidhu and others v British Airways plc; Abnett (known as Sykes) v British Airways plc (1997) AC 430).

The exclusivity of these Conventions has been eroded to a certain degree by recent Court of Justice of the European Union (CJEU) and English case law relating to Regulation (EC) No. 261/2004 on denied boarding and cancellation or long delay of flights. See, for example, R (on the application of International Air Transport Association and another) v Department for Transport, Case C-344/04; Sturgeon and others v Condor Flugdienst GmbH; Böck and another v Air France SA, Joined cases C-402/07 and C-432/07; Nelson v Deutsche Lufthansa AG; R (on the application of TUI Travel plc and others) v Civil Aviation Authority, Joined cases C-581/10 and C-629/10; and Dawson v Thomson Airways Limited (2014) 4 All ER 832.

Definition of ‘carrier’

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

The term ‘carrier’ usually means the corporate legal entity contracting the carriage; it does not extend to ground handling agents and other service providers.

Where actual carriage is undertaken by successive carriers, the UK courts consider the following characteristics to be representative of successive carriage: (i) the carriage must have been regarded by the parties as a single operation; (ii) it must have been divided into separate and successive (in terms of both time and place) stages; and (iii) the parties must have agreed that the carriage was to be performed by several successive carriers.

The English Court of Appeal held that a contract for carriage for the route Manchester-London-Los Angeles-New York-Manchester, where all flights were to be performed by British Airways apart from the Los Angeles-New York flight, which was to be performed by American Airlines, was an example of successive carriage (Collins v British Airways Board [1982] QB 734ß). Similarly, the English High Court determined there to be successive carriage in an example where a carrier’s timetables formed part of the contract for carriage and indicated that part of the journey was to be performed by another carrier (Rotterdamsche Bank NV v BOAC [1953] 1 All ER 675).

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?

The English courts follow the approach of the United States Supreme Court decision in Air France v Saks as to the meaning of ‘accident’ under the Montreal and Warsaw Conventions, namely that an accident is an unexpected or unusual event or happening that is external to that passenger (see, for example, Deep Vein Thrombosis and Air Travel Group Litigation, Re [2003] 1 All ER 935). An omission does not constitute an ‘accident’.

The then House of Lords determined that ‘bodily injury’ means a change in some part or parts of the body of a passenger which is sufficiently serious to be described as an injury (Morris v KLM Royal Dutch Airlines; King v Bristow Helicopters Limited (2002) 2 AC 628). A psychiatric illness - emotional upset such as fear, distress, grief or mental anguish - may be evidence of bodily injury or the description of a condition that includes bodily injury but does not in itself constitute bodily injury.

There are a number of English authorities on the meaning of ‘in the course of any of the operations of embarking or disembarking’. In Adatia v Air Canada (1992) PIQR P 238, the English Court of Appeal considered a passenger’s movement through the various airport procedures (including his or her physical location) to indicate whether he or she was, at the relevant time, engaged in the embarkation of the flight in question. See also Phillips v Air New Zealand Ltd (2002) 1 All ER (Comm) 801.

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?

Whether a carrier can rely on the contributory negligence of a passenger depends on the precise facts of a case. The English courts have held that contributory negligence did not feature in a case of injury as a result of turbulence where the passenger did not fasten his seat belt during a flight (Goldman v Thai Airways International Ltd (1981) 170 ER 266).

It is well established by the English courts that ‘all reasonable measures’ should be interpreted as ‘all reasonably necessary measures’; see Chisholm v British European Airways (1963) 1 Lloyd’s Rep 626 and Goldman v Thai Airways International Ltd (1981) 170 ER 266.

The English courts have applied the concept of ‘wilful misconduct’ in an aviation context as requiring either intention or subjective recklessness; see Thomas Cook v Air Malta (1997) 2 Lloyd’s Rep 399 and Rolls-Royce plc v Heavylift-Volga DNEPR Ltd (2000) 1 All ER (Comm) 796.

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?

EC Regulation 2027/97 (as amended) requires EU registered carriers to make advance payments as may be required to meet immediate economic needs on a basis proportional to the hardship suffered. The payments should not be less than 16,000 special drawing rights (SDR) (approximately £17,000) per passenger, must be made without delay and in any event within 15 days, and are made to the injured passenger or the family members of the deceased passenger as appropriate.

Advance payments may be offset against any subsequent sums paid on the basis of air carrier liability and are not returnable unless there is a finding of contributory negligence by a passenger or the individual in receipt of the advance payment was not the person entitled to compensation.

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?

English case law is suggestive that the seat of the board of directors is the most appropriate test for the ordinary residence of a corporation (Rothmans of Pall Mall (Overseas) Ltd v Saudi Arabian Airlines Corpn (1981) QB 368). There is no case law on the concept of branch offices or agencies of carriers under the Montreal Convention.

The place of departure will also be the place of destination in the case of return tickets or a round trip regarded from the outset as a single operation (Grein v Imperial Airways Ltd (1936) 2 All ER 1258).

There is no English case law on the ‘fifth jurisdiction’ created by article 33(2) of the Montreal Convention.

English law has the common law doctrine of forum non conveniens and the English courts will apply it to Montreal and Warsaw Convention claims.

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 English courts uphold the two-year period of limitation, which is absolute and not subject to tolling; see Sidhu v British Airways plc (1995) PIQR P 427 and Phillips v Air New Zealand (2002) 1 All ER (Comm) 801.

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?

There is no English case law regarding the liability of carriers in a code sharing or similar arrangement.