Sarah Nilsson, JD, PhD, MAS
Sarah Nilsson, JD, PhD, MAS

Airline Liability

The Montreal Convention

 

United Airlines Customer Property Claim Form

 

eCFR Part 254 - Domestic Baggage Liability

 

The Obligations of Airlines and the Rights of Passengers

 

General Conditions of Carriage - Air France

 

International General Rules Tariff

 

American Airlines Conditions of Carriage

 

Contract of Carriage: A binding agreement (evidenced usually by an air waybill, bill of lading, or passenger ticket) which contains conditions of carriage that spell out the obligations and rights of a carrier and a shipper/passenger. The carrier undertakes to deliver goods/passengers from a named place of departure to a named destination, in consideration for freight/fare. This contract addresses issues associated specifically with what is being carried, and how the liability and compensation for damage or injury to (or loss of) the goods/passengers is assessed, apportioned, and paid. In airline, cruise ship, and other passenger-transport industries, it contains also the carrier's policy regarding baggage, bumping, cancellation and delays, claims, reservations, ticket validity, etc. 

 

contract_of_carriage_dom.pdf
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CFR-2011-title14-vol4-part254-1.pdf
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cunningham.pdf
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MC99_en.pdf
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Types of Aviation Lawsuits

 

Wrongful Death: In addition to researching all causation, fault and liability issues, aviation attorneys gather information involving financial estate matters, present and future financial losses, and other losses. Damages arising from wrongful death fall into the following categories: economic loss (lost income), non-economic loss (pain and suffering), survival damages (fear, grief, sorrow), and punitive or exemplary damages. 

 

Personal Injury: When injured due to the negligence or careless actions of others, a victim may be entitled to payment for various damages. Depending on the victim and the injury, these may include compensatory damages (property damages, medical expenses, lost earnings, "other" damages and future damages), general damages, loss of consortium, emotional damages, and punitive or exemplary damages. 

 

Product Liability: Product liability law is complex and differs from general personal injury law. Claims are usually based on state laws and brought under theories of breach of warranty, negligence or strict liability. Consulting an attorney immediately is important as there is a legally defined time frame in which you may bring a claim (statute of limitations). 

 

Class Actions: Other nations' laws sometimes permit class actions to be brought to redress mass disaster losses. Aviation attorneys have brought such class actions in several countries and have teamed with foreign co-counsel to work for their clients. 

 

Multi-national and Cross-Border Litigation: Aviation attorneys, together with foreign co-counsel, have sought justice for plaintiffs of various nationalities in many countries. With more and more U.S. airlines flying foreign-manufactured aircraft, any air crash has the potential to present multinational and multilingual litigation. Aviation attorneys have tracked defendants, evidence and assets on multiple continents and in dozens of countries, including hostile nations and terrorist states.

Airline Liability

 

highest degree of care

legal relationship between airlines and international passengers (at least from the time the international passenger begins the process of boarding the aircraft until she has reached a safe place within the terminal at her destination) 

governed by unique body of law including The Montreal Convention

Law that governs an airline's liability for injuries to passengers varies, depending upon whether the passenger is traveling on a purely domestic or an international (or partly international) ticket

 

Airline Liability to Domestic Passengers

 

Domestic passenger: airline passenger whose ticket shows an origin and destination within the US and whose planned routing does not include any stops outside the US

 

Common carrier: represents to the public, either in writing (e.g. advertising) or by its course of conduct, that it will

1. carry for hire

2. at a uniform rate available to

3. all persons applying (or cargo presented), as long as there remains unused capacity in the aircraft

Under common law, common carriers have been held to have the legal duty to exercise the highest degree of care to avoid injuring a passenger instead of the ordinary degree of care to be exercised by the hypothetical reasonably prudent person as seen in negligence discussion - Private and contract carriage is governed by that ordinary degree of care

Highest degree of care standard requires that the airline and its employees exercise the greatest degree of human care and foresight possible to ensure the passengers' safe conveyance

Jury instructions: once all the evidence has been heard, but before the jury withdraws to the secrecy of the jury room to deliberate, the judge will instruct them on the legal principles they must apply to the facts in order to reach a decision

Higher standard applies to period between the times the passenger departs a safe place within the terminal to board the aircraft until she reaches a safe place within the terminal at the conclusion of the flight

Airline owes the passenger only reasonably prudent care within the terminal

Defense of assumption of risk is NOT available to airlines as commercial airline travel is the safest means of travel

 

Air Carrier Risk-Management Tools in Domestic Operations

 

Airline can limit its liability for damage to or destruction of domestic passengers' baggage and shipped cargo, and may impose reasonable procedural prerequisites and timetables affecting litigation by passengers through its tariffs

2 areas:

1. Dollar limits on liability: typically on a per-bag or per-pound basis

2. Private statutes of limitation (SOLs): airlines are permitted to impose private SOLs through tariffs and they may be less than that applicable to public ones so long as not so short as to appear unreasonable

 

Airline Liability for International Passengers

 

International passenger: ticket shows either:

1. an origin in one country and a destination in another country OR

2. an origin and destination in one country but a planned intermediate stop in a different country (planned = printed on ticket, not emergency stop)

The Warsaw Convention

Landmark International Treaty - final version written and agreed to by US and many other nations in 1929

Accomplished the following:

1. framework of internationally uniform law was established - Jurisdiction (in what nation's courts may a lawsuit be brought) - Choice of law (what law governs the crash) - Statute of limitation (when must the suit be filed or forever barred) - within 2 years from date of conclusion of trip OR its intended conclusion

International passenger can choose between 4 possible nations in which to bring a lawsuit for injury:

- nation of domicile of the airline

- nation in which airline has its principal place of business

- nation in which the ticket was bought from the airline or from a travel agent OR

- nation that is the passenger's destination

2. Uniformity of terms and conditions, not only within airlines but also among all transportation modes

3. In an effort to promote safety, treat imposes strict liability on international airlines for passenger injury or death and substantially limits defenses 

4. To counterbalance strict liability and protect international airlines from catastrophic loss in the event of a crash - and to promote the availability of liability insurance to international airlines

$8,300: Injury or death of passenger

$16.50: per kilogram for loss or destruction of cargo

 

Association of Trial Lawyers of America (ATLA)

By 1965, US had declared its intent to withdraw from the Warsaw Convention

Airlines met with US government representatives in Montreal and entered into Montreal Agreement

where airlines agreed to increase ceiling on liability for injury or death of passenger to $75,000 for those international flights "touching" the US (originating in, terminating in, or with planned stop in US)

Liability for International Cargo: 5 defenses to cargo claims were added:

1. airline took all possible measures to prevent cargo loss: eg terrorist bomb so sophisticated as to be undetectable by state-of-the-art baggage screening equipment properly employed by the airline

2. pilot or navigational error caused the cargo damage

3. shipper's contributory negligence caused the damage to the cargo: eg shipped in a crate without sufficient internal energy-absorbing materials to prevent breakage

4. loss, damage, or destruction of cargo was caused by an Act of God, War, or State (force majeure) OR

5. nature of the goods caused the damage

 

Notice

Airline required to deliver to the passenger a physical paper ticket (air waybill for cargo) placing that customer on notice that provisions of treaty apply

Notice must be timely to allow customer opportunity to take other measures (eg by purchasing additional insurance)

Notice must be readable: 10-point type on good-quality paper with good-quality ink using excellent printing press

Delivery in a timely and proper manner: to permit passengers opportunity to read and understand warnings on ticket and take other measures like purchasing additional insurance

Consequences of Inadequate Notice: serious financial repercussions

Punitive damages under the Warsaw Convention: if the accident was caused by willful misconduct of the airline (or employees acting within scope of their employment) airline remained strictly liable for passenger's injury or death but without the dollar limit - in the case of cargo airline would not be able to avail itself of the benefit of the dollar limit or any of five defenses

Warsaw Convention was rapidly updated worldwide by the new Montreal Convention 

Representatives of 118 nations and 11 international organizations gathered in Montreal in May 1999 hosted by ICAO

Treaty would not take effect until 30 nations ratified it - US was 30th one in September 2003

Tweaked and fine-tuned the Warsaw Convention

Principal changes:

1. for personal injury, strict liability still applies but with changed limits - airline liable for first 100,000 SDRs (Special Drawing Rights) of provable compensatory damages adjusted for inflation

SDRs are valued by the International Monetary Fund (IMF) 

2. there is no artificial limit on the amount of recoverable compensatory damages in excess of 100,000 SDRs unless the airline proves itself free from any fault causing the accident - willful misconduct exception disappears

3. punitive damages  are specifically precluded

4. new documentation provisions allow the use of electronic ticketing and electronic air waybills - notice requirements disappear

5. cargo liability limitations are set at an unbreakable 17 SDRs per kg

6. the 5 Warsaw defenses are replaced by these 4 and the airline is not liable if the destruction or loss of or damage to the cargo was caused by:

- inherent defect, quality or vice of the cargo (like nature of the goods)

- defective packing of the cargo performed by someone other than the carrier, its agents or servants (contributory negligence)

- act of war or armed conflict (act of god, war or state)

- act of public authority carried out in connection with entry, exit, or transit of the cargo (eg. seizure or damage by US Customs in the course of inspection)

7. airlines are liable for delaying passengers and their baggage to limits of 4,150 SDRs per passenger for passenger delay and 1,000 SDRs per passenger for baggage delay (breakable if passenger proves delay was airline's fault)

8. for code-sharing flights, the passenger may recover from either airline operating the flight or the airline whose code appears on the ticket

9. passenger's principal and permanent nation of residence at the time of the accident is added to Warsaw's list as a 5th place where suit may be brought providing that the airline has a place of business there

10. where required by national law, the airline is obliged to make advance payments to meet the immediate economic needs of victims and their families

11. airlines are free to agree to higher limits or to waive the limits

 

September 11th Victim Compensation Fund of 2001

included in the Air Transportation Safety and System Stabilization Act of 2001

$10 billion fund for compensation of victims

$5 billion for compensation of air carriers for losses

of over 5,000 victims and families - all but 95 elected to accept compensation - of those 95 who sued all but 3 settled before trial

PDF-TheEffectofTortLitigationontheAirlin[...]
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Friends for All Children, Inc. v Lockhee[...]
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In re Air Crash at Little Rock.pdf
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IN RE AIR CRASH DISASTER NEAR CERRITOS.d[...]
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Nader v Allegheny Airlines, Inc_.docx
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PIAMBA CORTES v American Airlines Inc.do[...]
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In the event of an airplane crash, aviation attorneys are to wait 45 days prior to contacting the families of the victims - 49 USC 1136

 

Otherwise, as happened in NY, they could be in violation of the ethics rules and receive a Letter of Caution and Admonition.

 

AG-caution.pdf
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In the article below a discussion is made regarding Doe v. Etihad Airways with respect to air carrier liability under the Montreal Convention.
Prior to Etihad, courts almost universally held that a passenger who suffers bodily injury as a result of an accident is entitled to physical damages, but is only eligible for emotional damages to the extent any such damages are attributable to the bodily injury sustained.
The Sixth Circuit in Etihad, however, concluded that passengers may be able to recover for emotional damages that are completely divorced from any bodily injury sustained.
In doing so, Etihad departs from nearly a century of jurisprudence on this issue, both domestically and internationally (given the Montreal Convention's interpretation by courts in foreign signatory jurisdictions).
ASL_v031n02_Summer18_Krueger.authcheckda[...]
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Sarah Nilsson, J.D., Ph.D., MAS

 

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The information on this website is for EDUCATIONAL purposes only and DOES NOT constitute legal advice. 

While the author of this website is an attorney, she is not YOUR attorney, nor are you her client, until you enter into a written agreement with Nilsson Law, PLLC to provide legal services.

 

 

 

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