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?

New Zealand courts have not directly commented on this point. However, New Zealand courts will generally interpret domestic legislation that incorporates international conventions (including the Conventions) in the same way as other common law jurisdictions.

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?

In Emery Air Freight Corp v Nerine Nurseries [1997] 3 NZLR 723 the New Zealand Court of Appeal expressly adopted the decision of the House of Lords in Sidhu v British Airways [1997] AC 430, which provided that the Montreal Convention and the earlier Warsaw conventions provide the sole basis for liability of an air carrier performing international carriage.

Definition of ‘carrier’

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

There is no authority in New Zealand around who considered to be a ‘carrier’ under the Conventions; however, for the reasons set out in question 2, it is likely that the courts would follow Rolls-Royce plc & Anor v Heavylift-Volga Dnepr Ltd & Anor [2000] CLC 1120 and would consider that ground handling agents and other service providers are not carriers under the Conventions.

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?

New Zealand courts have not yet interpreted or considered the meanings of ‘accident’, ‘bodily injury’ or ‘in the course of any of the operations of embarking or disembarking’ under the Conventions. However, for the reasons set out in question 2, it is likely that the New Zealand courts will interpret these words and phrases in line with the interpretations made by other common law jurisdictions.

Accordingly, New Zealand courts would likely follow the positions taken by the United Kingdom, Canada and Australia in applying the United States decision of Air France v Saks (1985) 470 US 392, where the Supreme Court held that accident means ‘an unexpected or unusual event or happening that is external to a passenger’.

‘Bodily injury’ is likely to be interpreted in accordance with the UK House of Lords decision Morris v KLM Royal Dutch Airlines [2002] UKHL 7, which clarified that ‘bodily’ means physical injury to the body and as such the only way to claim for mental injuries is where there is some physical manifestation of the injury.

It is less clear how the New Zealand courts will interpret ‘in the course of any of the operations of embarking or disembarking’, but it is likely that the general tests of activity (what the passenger is doing at the time), control and location (is the passenger in a place where they are obliged to be for the process of embarkation or disembarkation) will apply.

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?

New Zealand courts have not yet considered these standards, but would likely consider the United Kingdom line of authorities on these points extremely persuasive, including Singhal v British Airways PLC County Court (Wandsworth) 2008 WL 4820370 on the exoneration defence, Antwerp United Diamond BVBA v Air Europe [1993] All ER 469 on the application of the ‘all reasonable measures’ defence pursuant to article 20, and Horabin v British Airways [1952] 2 All ER 1016 on the interpretation of wilful misconduct.

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?

Under sections 91T(1)(a) and (b) of the Civil Aviation Act 1990, the Governor-General may order advance payments for compensation, or arrangements for making advance payments for compensation, to relatives of passengers injured or killed during international air carriage, in accordance with article 28 of the Montreal Convention. This power has not been exercised by the Governor-General to date.

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 New Zealand courts have not yet interpreted each of the jurisdictions set out in article 33 of the Montreal Convention and article 28 of the Warsaw Convention. International carriage within the meaning of the Warsaw Convention is governed by the provisions of the otherwise repealed Carriage by Air Act 1940. Pursuant to the First Schedule of the Carriage by Air Act 1940, a plaintiff has the choice to bring an action for damages relating to carriage performed by a contracting carrier in the territory of one of the high contracting parties, either before the court that has jurisdiction where the carrier is ordinarily resident, has its principal place of business, or has an establishment by which the contract has been made, or before the court that has jurisdiction at the place of destination.

New Zealand courts recognise the doctrine of forum non conveniens. There is no case law under New Zealand law where the courts have been asked to apply the doctrine to an action under the Montreal Convention or Warsaw Convention.

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 New Zealand courts have not yet considered the interpretation of the two-year period of limitations in article 35 of the Montreal Convention and article 29 of the Warsaw Convention but the Court of Appeal expressly adopted the decision of the House of Lords in Sidhu v British Airways [1997] AC 430, which provided that the Montreal Convention and the earlier Warsaw conventions provide the sole basis for liability of an air carrier performing international carriage (see question 3).

Commentators have argued that the New Zealand Court of Appeal decision Danzas AG v Hally Press Ltd [2005] 3 NZLR 146 goes against New Zealand courts strictly applying the two-year limitation period. In this case, the passenger erroneously commenced proceedings under the Warsaw Convention in the admiralty jurisdiction of the High Court; however the Court of Appeal permitted the claim to be transferred to the High Court’s civil jurisdiction.

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 New Zealand courts considered the liability of a person other than the contracting carrier in Emery Air Freight Corporation v Nerine Nurseries Ltd. The Court of Appeal held that performance in the Warsaw Convention is limited to physical and not contractual performance. As Emery was not the contracting carrier or physical carrier, it was not liable for the loss.

New Zealand courts have not yet considered the liability of carriage under code-sharing agreements.