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.
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.
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
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)
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
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
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
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
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.
Case 18: Saenz v. Roe, 526 U.S. 489 (1999)
1. What are the elements of the right to travel as expressed in Saenz v. Roe, and which is at issue in the case?
2. How are the rights to travel and citizenship related under Saenz v. Roe?
3. In what provision of the Constitution are citizens guaranteed a right to travel by the Court?
4. What does the Saenz v. Roe case establish as the standard of review?
5. Articulate the main point of the dissenting opinion.
Case 19: Kent v. Dulles, 357 U.S. 116 (1958)
1. Identify the parties and their respective claims and defenses.
2. Detail the different personal and social value the court associates with the “freedom of movement.”
3. The court notes that cases involving the refusal of passports generally fell into two categories. Explain.
4. The court refers extensively to concepts of liberty and Due Process arising out of the Fifth Amendment of the Constitution. Yet, Kent v. Dulles is not about the constitutionality of the right to travel. What is the issue, then? And, what is the holding of the case?
5. What, according to the dissenting opinion, are “travel-control” statutes, and how does that justify denial of a passport in Kent v. Dulles?
1. What is the departure point for the Lees? What is their destination? Why is this important from a legal perspective?
2. The plaintiffs assert three different arguments about the constitutionality of the Warsaw Convention. Identify each.
3. Explain how the court treated interstate travel and international travel differently as a matter of law.
4. Do the liability and jurisdictional limitations in the Warsaw Convention impermissibly impede the right to travel? Explain.
5. Does the result reached in Lee v. China Airlines, Ltd. afford the plaintiffs due process of the law? Why or why not?
1. A number of important procedural issues present in Beydoun v. Sessions. To understand their application, define the following terms using a legal dictionary:
(a) declaratory relief; and (b) injunctive relief.
2. What is the “No Fly List”?
3. What is the Terrorist Screening Database? How does it operate and by whom?
4. According to the court, what is the minimum type of government action necessary to implicate a fundamental right? Explain.
5. Are the plaintiffs’ claims based on procedural or substantive due process, according to the court? What is the difference?
1. Describe the intent and objective of Congress in enacting the Airline Deregulation Act of 1978.
2. What does Section 2.5 of the National Association of Attorneys General Task Force on the Air Travel Industry, Revised Guidelines, state?
3. What state action does Section 1305(a)(1) of the Airline Deregulation Act “preempt”? Explain what “preemption” means in this context.
4. Explain what Justice Scalia may mean when stating that “state restrictions on fare advertising have the forbidden significant effect upon fares.”
5. Summarize the dissenting opinion’s discussion of the “relating to” language in the Airline Deregulation Act.
1. Describe the motivation for and terms of the New York State Passenger Bill of Rights.
2. Explain how the Air Transport Association has no right to sue for a violation of 49 U.S.C. § 41713(b)(1) and yet is able to pursue a preemption challenge through the Supremacy clause?
3. What is the holding of the case? Does it matter if the New York State Passenger Bill of Rights at issue is classified as a health and safety regulation or a matter of basic human necessities? Explain.
4. Can the New York State Passenger Bill of Rights evade federal preemption on the basis that it is intended to prescribe standards of airline safety? Explain why or why not.
5. To what branch of government (legislative, executive, or judicial) of which governmental authority (state or federal) must passengers turn to after Air Transport Ass’n of America v. Cuomo for relief?
1. What does en banc mean? What does this signify in terms of the ease with which the Airline Deregulation Act can be interpreted by judges?
2. What are the three ways in which federal law might preempt state law and what the key to construing preemption?
3. How are “services” defined under Section 1305(a)(1) of the Airline Deregulation Act? How does the court define the term? Does it include the “operation and maintenance of an aircraft”?
4. Did Congress intend the Airline Deregulation Act to preempt all state claims for personal injury? To what evidence does the court point to in resolving this question?
5. Detail the concern expressed in the concurring opinion? How would the dissenting judges have decided this case using the definition of “operation of aircraft” under 49 U.S.C. § 1301(31)?
1. Define the following procedural terms used in the Witty v. Delta Air Lines, Inc. case: (a) diversity jurisdiction; (b) interlocutory appeal; and (c) de novo.
2. What is Deep Vein Thrombosis (“DVT”)?
3. Explain the procedural history of the case prior to reaching the Fifth Circuit.
4. How does the court rule on: (i) the plaintiff’s negligent failure to provide adequate leg room claim; and (ii) the plaintiff’s failure to warn claim? Explain the court’s rationale.
5. Does Witty v. Delta Air Lines, Inc. fall under the heading of express or implied preemption? Explain.
1. How does the Charas v. Trans World Airlines, Inc. court define “service” under the Airline Deregulation Act?
2. Summarize the different approaches the Ninth Circuit has taken when addressing the scope of preemption under the Airline Deregulation Act.
3. How does the court regard the “operations-versus-services” approach of Hodges v. Delta Airlines, Inc.? What example does the court provide to make its point.
4. How does the court define “service” and “rate”? On the basis of those definitions, what does the court hold?
5. Is the definition of “service” in Charas v. Trans World Airlines, Inc. broader or narrower than that of Hodges v. Delta Airlines, Inc.? Why might that matter?
Case 29: Stone v. Continental Airlines, 804 N.Y.S.2 652 (N.Y.C. Civ. Ct. 2005)
DOT: Bumping & Oversales
1. Delta Air Lines, Inc. is identified as the defendant in the caption of the case. What is ASA, then?
2. What is a contract of carriage? How can an airline passenger obtain a copy?
3. What decision did the Alabama Supreme Court reach in Ex parte Delta Air Lines, Inc., 785 So. 2d 327 (Ala. 2000), and how was it applied to this case?
4. Explain the provisions of 14 C.F.R. §§ 254.5, 253.4.
5. Discuss how the conversion and breach-of-contract claim were decided. Is this result fair? What should an airline passenger do to insure against the loss of or damage to baggage exceeding the limitation of liability?
1. Inventory the various fees at issue in this litigation and explain the plaintiffs’ complaint in connection with them.
2. Explain the requirements of 14 C.F.R. § 253.4 and § 253.7.
3. What is a private right of action? Are they created by statute or regulation? What is the difference?
4. What is an implied private right of action?
5. How does a contract-based claim, under the precedent of American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995), save (or not) plaintiffs’ claim?
1. Detail the activity of the plaintiffs that gave the flight crew and other passengers cause for concern?
2. The Airline Deregulation Act prohibits discrimination in air transportation. Explain the provision of 49 U.S.C. § 40101 et seq.
3. Explain the authority of the pilot in command (“PIC”) under 49 U.S.C. § 44902(b) and 14 C.F.R. § 91.3. Was this authority exercised properly in this case, according to the court?
4. Define “arbitrary” and “capricious.” Did the court find the airline’s conduct to be arbitrary or capricious in the circumstances of this case? Explain and, as part of your response, state the holdings of Williams v. Trans World Airlines, Cerqueira v. American Airlines, Inc., and Dasrath v. Continental Airlines, Inc., as stated by the court.
5. Why did the plaintiffs claim under Section 1983 fail?
1. What does the Air Carrier Access Act (“ACAA”) prohibit?
2. What is (or is not) discriminatory under the ACAA? Do the regulations - 14 C.F.R. § 382.7 - offer more detail? Explain.
3. How did the court dispose of the plaintiff’s second claim arising from alleged humiliating and derogatory conduct?
4. Describe the Compliance Procedures under 14 C.F.R. § 382.65.
5. According to the court, did Congress intend that a qualified handicapped person who was subjected to discrimination could bring suit in the federal courts for some sort of relief? Explain the court’s reasoning.
1. This case involves two different proceedings, i.e., Mr. Sturgeon and his family, and Mr. Bock and Ms. Lepuschitz. Explain the factual basis and legal issues for each of their respective cases.
2. How is each term below defined by the court under Regulation No. 261/2004? (a) flight; (b) flight delay; (c) flight cancellation; (d) cancelled; (e) extraordinary circumstances.
3. How does the tribunal resolve the issue of whether a flight delay is a flight cancellation under applicable regulations where the delay is long?
4. Are passengers of cancelled flights compensated differently than passengers of delayed flights? Explain.
5. What are the goals of Regulation 261/2004 as expressed in its Recitals 1 to 4 of its preamble? How should the regulations be interpreted?
1. Detail how the actual arrival and departure time of the flight at issue differed from the ticketed arrival and departure time.
2. Describe the competing arguments of the passenger and carrier respecting the actual arrival time and explain how the first-instance court ruled.
3. How does Regulation No. 261/2004 define “arrival time”?
4. How does the court interpret “actual arrival time?” Is this consistent with the definition of other European regulations and certain International Air Transport Association (“IATA”) documents? Explain.
5. How does the court ultimately rule?
1. Why was Ms. McDonagh’s flight cancelled?
2. Describe the damages claim of Ms. McDonagh and the airline’s initial defense.
3. How does Regulation No. 261/2004 define “extraordinary circumstances”? Did the facts of this case constitute “extraordinary circumstances”?
4. Explain what the court means by “principle of proportionality.”
5. How does the court ultimately rule with respect to the passenger’s claim for damages?
1. Summarize what Articles 17, 18, 19, 20, and 22, and 24 of the Warsaw Convention provide.
2. Detail each party’s view of Article 24 of the Warsaw Convention and explain which view prevailed in the court’s view.
3. Identify the main purposes of the Warsaw Convention. Is it more carrier- or passenger-friendly?
4. Explain how the court resolved the exclusivity and preemption questions. In practical terms, what does this mean for plaintiffs?
5. What does the dissent argue? See, e.g., In re Air Disaster at Lockerbie, Scotland on Dec. 21, 1998, 37 F.3d 804 (2d Cir. 1994) for an extraordinary opinion detailing the limitation of liability under the Warsaw Convention in connection with the bombing of Pan Am 103 over Lockerbie, Scotland a few days before Christmas Day in 1988.
Sarah Nilsson, J.D., Ph.D., MAS
602 561 8665
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