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 Phifer v Icelandair, 652 F 3d1222, 1224 n.1 (9th Circuit 2011); 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 or exclusive 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); Narayanan v British Airways, 747 F 3d 1125 (9th Cir 2014); King v American Airlines, 284 F 3d 352, 358 (2d Cir 2002); Nwokeji v Arik Air, 2017 WL 4167433 (D Mass 20 September 2017); and Booker v BWIA West Indies Airways Ltd, 2007 WL 1351927 at *2 (EDNY 8 May 2007).

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); and 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: (1) an unusual or unexpected event or happening external to the passenger; and (2) 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 American 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). 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 the mental anguish results from an accident that also causes bodily injury, even though the mental anguish might not flow from such bodily injury. See Doe v Etihad Airways, 870 F 3d 406 (6th Cir 2017), cert denied, 139 S Ct 1548 (2018). The Doe case has not been followed by other courts and has been rejected by at least one lower court. See Bandary v Delta Air Lines, Inc, 2019 WL 9244788 (CD Cal 11 October 2019).

 

‘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 the defendant’s breach. 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. US courts apply a subjective, rather than objective standard: ‘while 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 phrase 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’.

However, even if there is article 35 jurisdiction in the US under the Convention, a court may still dismiss an action for lack of personal jurisdiction or on the grounds of forum non conveniens.   

Personal jurisdiction – while treaty subject matter jurisdiction may exist in the US pursuant to article 33 of the Convention, the court must still address the issue of personal jurisdiction. See Fisher v Qantas Airways Limited, 2021 WL 733372, at 4 (D Ariz 24 February 2021) (the Court’s constitutional exercise of personal jurisdiction over an air carrier 'is a separate question not answered—let alone conferred—by the Montreal Convention'); Royal & Sun Alliance Insurance PLC v UPS Supply Chain Solutions, Inc, 2018 WL 1888483, at 3 (SDNY 5 April 2018) ('. . . courts have consistently concluded that the Montreal Convention affords subject matter jurisdiction, not personal jurisdiction'); Weinberg v Grand Circle Travel, LCC, 891 F Supp 2d 228, 237–38 (D Mass 2012) ('Even if plaintiffs establish subject matter jurisdiction under the Montreal Convention, the court still has to address the issue of personal jurisdiction'). 'Personal jurisdiction' refers to a court’s power to decide a dispute over a specific party. The Due Process Clause of the US Constitution permits courts to exercise personal jurisdiction over a non-US defendant if it has 'certain minimum contacts' with the US jurisdiction such that the maintenance of the suit is not unfair. The constitutional requirements can be satisfied by showing either:

  • general jurisdiction – a non-resident defendant’s contacts must be 'so "continuous and systematic" as to render [it] essentially at home in the forum state' (Daimler AG v Bauman, 571 US 117, 127 (2014)); or
  • specific jurisdiction – an affiliation between the forum and the underlying controversy or an occurrence that takes place in the forum State (Goodyear Dunlop Tires Operations, SA v Brown, 564 US 915, 919 (2011)).

 

Forum non conveniens (FNC) – FNC is a common law procedural doctrine that allows a US court to dismiss a case even if it has subject matter and personal jurisdiction if the US is not the most convenient forum for the litigation. The FNC doctrine as applied by most courts in the US involves a three-step analysis:

  1. What deference should be given to a plaintiff's forum choice?
  2. Is there an adequate alternative forum?
  3. Do the balance of the 'private' and 'public' interest factors weigh in favour of dismissal?

 

US courts have traditionally 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. Recently, a US court dismissed Montreal Convention claims made in connection with the disappearance of Malaysia Airlines Flight MH370 on forum non conveniens grounds even though some claims involved US plaintiffs or decedents. See In re Air Crash Over the Southern Indian Ocean, 352 F Supp 3d 19 (DDC 2018).

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 a 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). While as a result of covid-19 many states have extended civil statute of limitations, it is questionable whether such extensions can extend the article 35 period of limitation.

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 Airways 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); McCormick v Aerovias De Mexico, SA de CV, 2019 WL 1552498 (D Or 17 February 2019); and Selke v Germanwings GmbH, 261 F Supp 3d 666 (ED Va 2017).