The Convention for the Unification of Certain Rules Relating to International Transportation by Air[i], (“Warsaw Convention”), creates a uniform body of law with respect to the rights and responsibilities of passengers, shippers, and air carriers in international air transportation.
The central purpose of the Warsaw Convention is to limit the liability of air carriers[ii]. The Warsaw Convention establishes[iii]:
- the liability of international air carriers for harm to passengers, baggage, or goods;
- fixes limitations on such liability; and
- achieves a degree of uniformity in documentation and in the procedures and substantive law applicable to claims arising out of international air carriage.
There are three types of claims, set out in Chapter III of the Warsaw Convention, to which liability attaches[iv]:
- those claims based on personal injuries (Article 17);
- those claims based on lost or damaged luggage (Article 18); and
- those claims based on damages due to delays in transportation (Article 19).
Article 17 of the Warsaw Convention sets forth conditions under which an international air carrier can be held liable for injuries to passengers[v]. Article 17 provides that the carrier is liable for damage sustained in the event of a death or a wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking[vi].
Thus, under Article 17, an air carrier is liable for passenger injury only when the following three conditions are satisfied[vii]:
- there has been an accident, in which
- the passenger suffered death, physical injury, or physical manifestation of injury, and
- the accident took place on board the aircraft or in the course of operations of embarking or disembarking.
Article 18 provides that a carrier will be liable for damage sustained in the event of the destruction, loss of, or of damage to any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air.
Pursuant to Article 19, a carrier will be liable for damage occasioned by delay in the transportation of passengers by air, baggage, or goods.
Pursuant to Article 25, a carrier will not be entitled to avail himself/herself of the provisions of the Warsaw Convention which exclude or limit his/her liability when it is shown that the damage suffered by the claimant was caused by the carrier’s willful misconduct, as defined by the law of the forum court[viii].
The Warsaw Convention precludes passengers from maintaining an action for damages for personal injury under local law when the claim did not satisfy the Convention’s conditions for carrier’s liability for international air transportation[ix].
Article 29 of the Warsaw Convention provides a two-year statute of limitations. Pursuant to Article 29, the right to damages will be extinguished if an action is not brought within two years from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the transportation stopped[x].
The Convention for the Unification of Certain Rules for International Carriage by Air drafted in Montreal (“Montreal Convention”) amended the Warsaw Convention[xi].
Pursuant to the Montreal Convention, a carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition 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[xii].
The Montreal Convention applies only to international carriage of persons, baggage, or cargo that originates in the territory of one of the states party to the Convention and terminates in that of another[xiii].
In comparison to the Warsaw Convention, the Montreal Convention has been described as a treaty that favors passengers rather than airlines[xiv].
The Montreal Convention provides four grounds upon which a court may base its jurisdiction. A plaintiff may bring an action in the U.S. for damages pursuant to the Montreal Convention only when the U.S. is[xv]:
- the domicile of the carrier;
- the principal place of business of the carrier;
- the place where the carrier has a place of business through which the contract has been made;
- the place of destination; or
- the principal and permanent residence of the passenger.
[i] 49 USCS § 40105 note.
[ii] Byrd v. Comair, Inc. (In re Air Crash at Lexington, Ky.), 501 F. Supp. 2d 902 (E.D. Ky. 2007).
[iii] In re Korean Air Lines Disaster, 932 F.2d 1475 (D.C. Cir. 1991).
[iv] Rogers v. Am. Airlines, Inc., 192 F. Supp. 2d 661 (N.D. Tex. 2001).
[v] Eastern Airlines v. Floyd, 499 U.S. 530 (U.S. 1991).
[vi] Ehrlich v. Am. Airlines, Inc., 360 F.3d 366 (2d Cir. N.Y. 2004).
[vii] Eastern Airlines v. Floyd, 499 U.S. 530 (U.S. 1991).
[viii] In re Korean Air Lines Disaster, 932 F.2d 1475 (D.C. Cir. 1991).
[ix] El Al Isr. Airlines v. Tsui Yuan Tseng, 525 U.S. 155 (U.S. 1999).
[x] Castro v. Hinson, 959 F. Supp. 160 (E.D.N.Y. 1997).
[xi] Byrd v. Comair, Inc. (In re Air Crash at Lexington, Ky.), 501 F. Supp. 2d 902 (E.D. Ky. 2007).
[xiii] Polanski v. KLM Royal Dutch Airlines, 378 F. Supp. 2d 1222 (S.D. Cal. 2005).
[xiv] Byrd v. Comair, Inc. (In re Air Crash at Lexington, Ky.), 501 F. Supp. 2d 902, 907 (E.D. Ky. 2007).
[xv] Baah v. Virgin Atl. Airways, 473 F. Supp. 2d 591, 593 (S.D.N.Y. 2007).