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 Martins
Based 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