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?

The courts usually interpret similar provisions in the same way, but the purposes of each treaty are taken into account; therefore, there are times when the courts have different interpretations, even if the provisions are the same.

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 courts can make a judgment on compensation for damage claims brought by the injured party based solely on the Montreal Convention and the Warsaw Convention. A compensation claim based on the Montreal Convention was filed in a decision delivered by the Tokyo District Court on 2 December 2014. However, the plaintiff’s claim was dismissed since the statute of limitations for the claim had already run.

Definition of ‘carrier’

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

A decision delivered by the Tokyo District Court on 13 October 1999 held that a ‘carrier’ under the Warsaw Convention generally means the contracting carrier that directly concluded a carrier contract with the package holder. However, in certain circumstances (eg, where an actual carrier contract that is substantially the same as the use carrier contract is concluded as an attachment), the actual carrier is considered to be the same as the contracting carrier.

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?

An ‘accident’ is understood to be an event that occurs inside the air carrier or during the operations of embarking or disembarking. Any incidents that occur in locations or periods in which passengers move under the control of the carrier is classified as an accident during the operations of embarking or disembarking.

‘Bodily injury’ is physical injury and injury of the appearance. Pure moral damage is not considered to be bodily injury.

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?

‘No-negligence’ defenceA decision by the courts is not made directly under Article 21 of the Montreal Convention, but ’no-negligence’ means to perform the normal duty of care (ie, the acts that are necessary to avoid foreseeable results).

‘All reasonable measures’ defence‘All reasonable measures’ means measures that a normal carrier will obviously take. Carriers are required to prove that they or their employees have fulfilled the duty of care of a good carrier when fulfilling their obligations under the carrier contract.

‘Wilful misconduct’ standardIn the Nagoya District Court (16 December 2003), the ‘wilful misconduct’ standard was understood to require carriers and the like to recognise the possibility of damages occurring (subjective standard). Matters which should have been recognised are understood not to be included.

 

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 are no regulations requiring advance payment. However, in practice, carriers will make a temporary advance payment. They will also obtain liability insurance that meets the value of future damage 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?

In the Supreme Court decision of 16 October 1981, a decision similar to the ‘fifth jurisdiction’ of the Montreal Convention was delivered with respect to bodily injury. Therefore, the ‘fifth jurisdiction’ is recognised.

In civil lawsuits, multiple proceedings for an identical dispute are prohibited; however, multiple proceedings for lawsuits worldwide are not regulated. A decision delivered by the Tokyo District Court on 23 June 1987 held that since the Warsaw Convention has not been interpreted to prohibit multiple proceedings for an identical dispute worldwide, a claim may be filed in the Japanese courts if there is jurisdiction under Article 28(1) of the Warsaw Convention, even if a lawsuit between the same parties is already pending in the courts of foreign countries.

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?

In general, the two-year period of limitations under Article 35 of the Montreal Convention and Article 29 of the Warsaw Convention apply. However, decisions delivered by the Tokyo District Court on 2 December 2014 and the Osaka District Court on 12 December 2012 found that it is possible for the period of limitations not to apply under exceptional circumstances, which bring unreasonable conclusions, since the balance between the protection of consumer interests in the international air transportation and development of the international air transport business has been lost.

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?

Carriage performed by individuals is interpreted to be the same as that performed by air transport carriers.

Law stated date

Correct on

Give the date on which the information above is accurate.

22 November 2019.