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 acknowledge that, historically and schematically, the Montreal Convention system was designed and established as an upgrade to the prior existing Warsaw Convention system. In determining the meaning of the Montreal Convention terms, concepts, and doctrines, the courts, then, gain inspiration from the application practice of the Warsaw Convention (articles 31 and 32 of the Vienna Convention on the Law on Treaties (1969)).

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. Courts tend to rely on articles 29 and 49 of the Montreal Convention (1999), as well as articles 24 and 32 of the Warsaw Convention (1929), as amended by the Hague Protocol (1955), to reach such conclusion.

To be fair, however, one must avoid an absolute treatment of the exclusivity. Courts will be keen to note that article 24 of the Warsaw Convention maintains the exclusivity of air carrier liability with regard to damages claims out of actual air carriage only, implying the possibility of other contractual or tort claims that are governed by the conditions and limits as stemming from the otherwise applicable rules of private international law. As an example, one may imagine a claim for breach of duty of care (and the resulting injury or death) in an instance where an airline, by virtue of its marketed shuttle service, picks up a passenger from the hotel to deliver the passenger to the airport. However, article 29 of the Montreal Convention is explicit in defining the exclusivity with reference to ‘[i]n the carriage of passengers’; this, combined with ‘according to the agreement between the parties’ (article 1(2)) ensures an absolute reading with regard to damages claims in respect of passengers under this Convention.

Definition of ‘carrier’

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

Courts will recourse to the identical wording of articles 1(1) and 1(2) in the Warsaw Convention and in the Montreal Convention to construe the term ‘carrier’ as denoting a person or entity that undertakes to procure the relevant air carriage by virtue of its inherent commercial activities or by a specific arrangement. Various ground handling agents (whether offering passenger handling, ramp service, catering, fuelling, and so on) and other service providers (for example, maintenance and repair organisations carrying out inspection or repair works on an aircraft or its equipment) will definitely fall outside the scope.

Yet, this is without prejudice to whether, in light of the relevant circumstances and applicable private international law rules, the particular ground handling agents and other service providers (for example, repair and maintenance organisations) fall under the concept of ‘servants and agents’ – see article 25(A) of the Warsaw Convention and article 30 of the Montreal Convention.

As to the determination of the existence of ‘successive carriers’ in particular instances (article 1(3) in both treaties), courts will analyse judicial practice in other major jurisdictions, as well as be guided by scholarly writings or practice compilations. In light of the predominant practice nowadays for international air carriage to be organised along the lines of ‘contractual’ and ‘actual’ carriers, courts will be reluctant to treat chains of multiple airlines under the auspices of one booking as successive carriage, unless it can be clearly demonstrated that the airlines offered the service as a joint project. One such instance could be, for example, the ‘round-the-world tickets’ offered by global airline alliances.

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?

Courts tend to follow the practice of other major foreign jurisdictions. As such, ‘accident’ means any untypical (of a sensible and ordinary air travel experience) occasion (both active action and omission of action), as a result of which the passenger sustains the death or bodily injury. ‘Bodily injury’ means a physical damage or non-physical damage, if the latter is a direct consequence of the sustained physical damage. Purely emotional distress, moral suffering and the like are not cause for reimbursement under the damages claims. However, nervous breakdowns and suchlike fall under ‘bodily injury’, because of directly affecting human body and its systems. ‘In the course of the operations of embarking or disembarking’ encompasses, roughly put, the whole plethora of operations starting from the moment the airline’s representatives invite the passengers to board and ending with the passengers leaving the jet bridge into the terminal area.

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?

Courts are guided by judicial practice in major foreign jurisdictions. Consequently, exoneration from strict liability, as well as limitations on recoverable damages amounts (articles 20, 21 and 25 of the Warsaw Convention and articles 20 and 21(2) of the Montreal Convention) will be construed, first, in light of the objective criterion – what would be a normal course of events and reasonably required standard of care to be exercised by a prudent and diligent air carrier in the particular circumstances and the current best practice in the industry. As a further step, to determine if wilful misconduct exists on the part of the air carrier (article 25 of the Warsaw Convention as well as within the confines of article 21(2) of the Montreal Convention), the court will assess, to the maximum extent practicable and possible, the motives, intention and attitude of the carrier towards the relevant accident.

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?

Yes. Through direct effect and applicability in Latvia of the 9 October 1997 Regulation (EC) No. 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, a Community air carrier is obliged to advance, within 15 days after identifying the natural person entitled to compensation, the compensation for meeting the claimant’s immediate needs in proportion to the harm suffered. In the case of death, such advance amount must be no less than the euro equivalent of 16,000 special drawing rights for each of the deceased. EU law also clarifies that any advance payment so made is not recoverable subsequently by the air carrier, unless article 20 of the Montreal Convention is found applicable or it transpires that the advance has been paid to the person not entitled to compensation at all (see article 5 of the Regulation).

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?

Once again, the courts will follow the practice of other major foreign jurisdictions. Latvian courts will be guided by principles enshrined in articles 62 and 63 of the 12 December 2012 Regulation No. 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Courts will note that the first two jurisdiction aspects (‘ordinarily resident’ in the Warsaw Convention or ‘domicile’ in the Montreal Convention and ‘principal place of business’ in both treaties) encompass the modern private international law notion of the legal person’s domicile. The first aspect (‘ordinarily resident’) equals the sub-notion of the statutory seat (or the place of the carrier’s incorporation or registration). The second aspect – ‘principal place of business’ – is a distinct sub-notion under private international law and, for airlines in the European Union setting, will, roughly, mean ‘head office or registered office . . . within which the principal financial functions and operational control’ (according to item 97, Annex I of the Commission Regulation (EU) No. 965/2012 of 5 October 2012 that lays down technical requirements and administrative procedures related to air operations pursuant to Regulation (EC) No. 216/2008 of the European Parliament and of the Council) are undertaken.

The term ‘establishment by which the contract has been made’ (according to the Warsaw Convention) or ‘place of business through which the contract has been made’ (according to the Montreal Convention) is construed broadly to cover any physical or online business ticket sales office operated either by the carrier itself or its agent or representative (including travel agencies and operators, as well as online booking services such as Travelocity.com). In its turn, ‘place of destination’ is understood to mean the destination airport under the agreement with the passenger (even if the flight did not end there because of the accident).

The fifth jurisdiction (article 33(2) of the Montreal Convention) is understood to mean the passenger’s domicile (primary or habitual residence; article 62 of the 12 December 2012 Regulation No. 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) on the condition that the air carrier also has its physical establishment for conducting any portion of its business (not only the ticket sales), as well as is offering actual flights to or from there. It must be ascertained that the air carrier conducts any portion of its business and provides actual flights either directly (by itself) or through a code-share, interline, or similar partner.

The Latvian Civil Procedure Code does not leave room for recognition of the doctrine of forum non conveniens. Under the broad construction of article 1 of the Civil Procedure Code, Latvian courts will entertain any civil or commercial claim even between or among foreign nationals or corporations, unless the jurisdiction of the Latvian courts is precluded by rules of the European Union law (in particular, the 12 December 2012 Regulation No. 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) or of a treaty to which Latvia is party and that contains provisions on allocation of jurisdiction.

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?

Under Latvian law, the two-year period of limitation is treated as an issue of substance rather than procedure. However, owing to article 29(1) of the Warsaw Convention and article 35(1) of the Montreal Convention defining the major aspects pertaining to the two-year period – namely, the extinguishment of the right to claim as such upon expiry of the said period, as well as the requirement to file an actual claim within the relevant period of time – leaves, on major terms, only the tolling issue under the practical scope of national law.

With regard to personal injury or death of a passenger, the relevant provision is article 1898(2) of the Latvian Civil Code. It provides that tolling occurs upon the claimant being declared, either by law or a judicial decree, under legal guardianship or custodianship. One may imagine two examples here:

  • the deceased passenger has left a child, now an orphan, who, under the law, does not possess an independent legal capacity to sue and is being appointed a legal guardian; or
  • the injured passenger, because of the accident, is left mentally disabled and, by virtue of a judicial decree, has been declared under the legal custodianship of its supervisor.

 

While the airlines will, typically, attempt to settle the issues on an expedite basis, formally, the period of limitation is extended for the whole duration of the relevant guardianship or custodianship.

The action is deemed to be filed in a timely fashion with submission of the claim to a court (that is, with filing rather than service).

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?

Courts are apt to recognise that both treaties provide for the concepts of a contractual and actual carrier. While, for the Warsaw Convention, this (in a progressive and modern interpretation) stems implicitly from article 25A (actual carrier is deemed to be the contractual carrier’s servant or agent), the Montreal Convention clearly provides a solution on this (Chapter V).

Law stated date

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The law stated, cited, or referred to above is correct as of 18 September 2020.