Should carriers be liable under the Warsaw/Montreal regimes when the “accident” was due to an event or occurrence unrelated to aviation operations?

Presented by:

Carlos MartinsBased on materials prepared by

Tory A. Weigand – Morrison Mahoney LLP

Article 17 of Montreal Convention“The carrier is liable for damage sustained in the case of bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

• no significant change from Warsaw Convention

Arguments that no connection to aviation operations is necessary

Policy

• A presumptive liability regime should be presumptive

• Air travel is a tightly-controlled environment• Carriers have control over environment,

including who may board, under what conditions

“Aviation operations” not specified in Article 17

• Courts begin interpretation with the plain text of treaties – not the role to “read in” elements not included by drafters

• The only required causal relationship is between the accident and the injury

• Neither Warsaw nor Montreal Convention qualify “accident”

Article 17 in Context• Conduct of carrier only explicitly a factor as a

defence (Warsaw only) or to get beyond limit of liability• Article 21 Montreal imposes strict liability to SDR

limit and presumptive liability beyond• Negligence of carrier (in its operations) relevant only

beyond SDR limit• “Accident” therefore not related to aviation

operations/carrier conduct

Saks definition of “accident”• In Saks routine depressurization on landing

caused passenger’s loss of hearing• Liability only where the accident consists of an

unexpected or unusual event or happening that is external to the passenger

• No tie to aviation operations articulated – merely that it not be internal reaction of passenger

Arguments that connection to aviation operations is necessary

Broad policy• The Warsaw/ Montreal Conventions should not be

viewed as “all risks” insurance policies for pax• Goal is a proper balance of interests between

passengers and carriers• Conventions intended to limit liability of carriers• Presumed liability regime necessitates some restraint

in interpreting its ambit

Interpretation revisited

• Interpretation of text must be done in context and in light of the treaty’s overall object and purpose

• Conventions’ concern is the operation of aircraft/aviation operations – “accident” means “aviation accident”

• Omission of qualifying language an indication that it was obvious

Historical considerations• Delegate at 1929 convention noted accident to mean: (1) errors in

piloting; (2) defect in functioning of the aircraft; or (3) acts of God• 1949 ICAO Subcommittee noted that a passenger “attack” would be

caught by “occurrence” but not by “accident”• Opposition to changing “accident” to “occurrence” noted by ICAO

legal committees in 1950s• Guatemala City Protocol (1971) substituted “event” for “accident” –

opponents to change cited need to make clear that liability tied to aviation operations

• Well short of the number of ratifications necessary to bring into force

Case law – Saks revisited

• The “event or happening” was clearly related to aviation operations (depressurization)

• So no need to consider non-aviation related causes (they are not relevant to that case)

Considerations• As articulated in Fulop v Malev Hungarian Airlines, Inc.,

175 F. Supp. 651 (SDNY 2001):

(1) the normal operations of the aircraft; (2) the knowledge or complicity of the crew members in the events surrounding the alleged accident; (3) the acts of fellow passengers whether intentional or not; (4) he acts of third persons who are not crew or passengers, e.g., hijackers and terrorists; (5) the location of he occurrence in the continuum of the air travel; (6) the role, condition and reaction of the complainant in connection with the occurrence at issue and; (7) the kinds of risks inherent in air travel

Expansion of “aviation operations”

Montreal vs Warsaw Conventions• Article 17 unchanged – but:

• Broad “taken all necessary measures”/due diligence exoneration in Warsaw (art 20) excluded from Montreal

• Warsaw preamble makes no mention of passengers – Montreal preamble includes:• RECOGNIZING the importance of ensuring protection of the

interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution

Article 17 in Context (Montreal)

• Article 20 only allows for reduction or elimination of liability where carrier proves negligence of claimant

• Montreal Convention allows carrier to pursue action against third party (unruly passenger)

What are Aviation Operations?

• Has expanded beyond piloting, mechanical defects and acts of God

• Now likely includes smoking, groping, drinking, pax fights, dietary concerns, medical diversions, etc.

• Look to Industry standards and carrier policies and procedures (eg blacklisting)

Unruly passenger procedures• Passenger sexual assaults on rise?• Association of Flight Attendants – CWA

advocating for training re on-board assaults

• Guidance on Unruly Passenger Prevention and Management – IATA

Thank you.

Bersenas Jacobsen Chouest Thomson Blackburn LLP

Toronto, Canada

www.lexcanada.com