Chapter § 2A.01 OVERVIEW OF THE WARSAW AND MONTREAL CONVENTIONS

• Jurisdiction: United States
• Publication year: 2021

§ 2A.01 Overview of the Warsaw and Montreal Conventions

There is not much difference between the kinds of complaints against airlines brought by passengers in international travel and those in domestic travel.¹ The cases involving physical injuries run the spectrum from death² and ruptured eardrums³ to food poisoning,⁴ injuries from falling overhead baggage,⁵ hot coffee, tea or soup spills⁶ intrusive security searches,⁷ air turbulence,⁸ a plunge of 10,000 feet,⁹ exposure to biomedical waste,¹⁰ exposure to second hand smoke,¹¹ assaults from other passengers,¹² heart attacks,¹³ medical aid claims,¹⁴ mistreatment by airline employees,¹⁵ assaults by local governmental officials,¹⁶ terrorist gunfire,¹⁷ assaults by airline's employees,¹⁸ malfunctioning airport escalators,¹⁹ injuries sustained subduing a terrorist threat,²⁰ a 'bleeding head injury,"²¹ struck in eye by fellow passenger's shopping bag,²² detention and deprivation of food and medical care,²³ trampled on the tarmac by other pas- sengers,²⁴ emergency landings and evacuations,²⁵ crashing into a seawall,²⁶ sounding of a lavatory smoke alarm,²⁷ sexual assaults,²⁸ failing to properly assist handicapped passengers,²⁹ scalding injuries,³⁰ concealed hypodermic needles,³¹ passenger inadvertently injuring another passenger,³² falling on another passenger,³³ transmitting contagious diseases,³⁴ anaphylactic shock,³⁵ negligently prepared flight meals,³⁶ mistaken drink substitution,³⁷ thermal burns from dry ice,³⁸ mismanagement of boarding process,³⁹ air crashes,⁴⁰ fall from a mobile lounge vehicle,⁴¹ drownings,⁴² failing to adequately serve the needs of an ailing passenger,⁴³ bags in the aisle,⁴⁴ refusal to let passenger off the aircraft,⁴⁵ fall down a ramp stand,⁴⁶ runaway drink cart,⁴⁷ bomb hoaxes,⁴⁸ forcible removal from aircraft,⁴⁹ disputes with flight personnel over seating,⁵⁰ cramped seating,⁵¹ protruding seats,⁵² reclining seats,⁵³ failure to provide exit row or "legspace" seats,⁵⁴ allergic reactions to food,⁵⁵ taking of passenger photographs,⁵⁶ being dropped in a wheelchair while being carried down air stairs,⁵⁷ deep vein thrombosis,⁵⁸ failure to warn,⁵⁹ nose gear failure and crash landing,⁶⁰ misplaced baggage,⁶¹ lost baggage medicine and medical equipment,⁶² overshooting the runway,⁶³ refusal to allow passenger to have two carry on bags,⁶⁴ flight delays,⁶⁵ exposure to insecticide sprayed in aircraft cabin,⁶⁶ refusal to feed passengers,⁶⁷ falling ceiling fixtures,⁶⁸ aircraft engines catching on fire,⁶⁹ and slips, trips and falls.⁷⁰

Similarly, complaints for nonphysical injuries are equally as common in international air travel. Canceled flights,⁷¹ overbooking or "bumping,"⁷² ejectment and detention⁷³ protracted time on board aircraft,⁷⁴ refusals to board,⁷⁵ irresponsible scheduling of connecting flights,⁷⁶ mechanical failures,⁷⁷ international parental kidnapping,⁷⁸ strikes,⁷⁹ misinformation about the need for a visa,⁸⁰ taping a defiled sex toy to the outside of checked baggage,⁸¹ misdirecting flight to Granada to Grenada,⁸² failure to deliver in-flight internet service,⁸³ downgrading a ticket,⁸⁴ and failure to assist a passenger,⁸⁵ are sources of passenger ire, as are missed flight connections⁸⁶ and even bad weather⁸⁷ misrepresented legroom,⁸⁸ negligently designed seating configuration,⁸⁹ and discrimination, including racial and ethnic profiling.⁹⁰ Not to be forgotten are the problems caused by deceased animals,⁹¹ lost,⁹² confiscated,⁹³ stolen,⁹⁴ looted,⁹⁵ missing,⁹⁶ or damaged⁹⁷ baggage or cargo delayed in delivery,⁹⁸ including transport of livestock resulting in death,⁹⁹ being hit by falling overhead baggage,¹⁰⁰ overcharging for baggage,¹⁰¹ mishandling of baggage,¹⁰² mislabeling of baggage,¹⁰³ excessive baggage fees,¹⁰⁴ unlawful and unfair claims procedures,¹⁰⁵ or passengers delayed in arriving at their destinations.¹⁰⁶

The major difference between the rights and remedies of domestic airline passengers¹⁰⁷ and international passengers is that the rights of U.S. passengers traveling on international flights were governed from July 31, 1934¹⁰⁸ until recently by an international treaty known popularly as the Warsaw Convention, and most countries with domestic airlines became signatories to this international treaty.¹⁰⁹ On May 28, 1999, the Montreal Convention was promulgated,¹¹⁰ becoming effective in the United States on November 4, 2003.¹¹¹ The Montreal Convention expands upon the Warsaw Convention without overruling much of the jurisprudence developed over the years interpreting the Warsaw Convention¹¹² and includes some aspects of numerous modifications to the Warsaw Convention instituted during the period 1955 through 1999.¹¹³

The Warsaw and Montreal Conventions provide a flowchart of rights and remedies for passengers suffering injury to person or property at the hands of international air carriers, and for air carrier defenses. The Warsaw and Montreal Conventions seek to balance the interests of passengers and air carriers. As stated by the U.S. Supreme Court in El Al Israel Airlines, Ltd. v. Tseng:¹¹⁴

"Articles 17, 22 and 24 of the Convention are also designed as a compromise between the interests of passengers seeking recovery for personal injuries, and the interests of air carriers seeking to limit potential liability. . . . In Article 17, carriers are denied the contractual prerogative to exclude or limit liability for personal injury. In Articles 22 and 24, passengers are limited in the amount of damages that may recover, and are restricted in the claims they may pursue by the Convention's conditions and limits."

Once it is established that the Warsaw or Montreal Conventions apply to a given case¹¹⁵ (for example, the Death on the High Seas Act (DOHSA) may control)¹¹⁶ and that venue and jurisdiction are proper,¹¹⁷ the resolution of all relevant issues may be accomplished by following a three step analysis.

(1) What is the scope of the air carrier's liability to its passengers?¹¹⁸

(2) Assuming liability, to what extent may the air carrier (a) exclude or exonerate itself from all liability, (b) limit its liability, or (c) limit the recoverable damages to which passengers are entitled? ¹¹⁹

(3) Assuming the applicability of liability exclusions or limitations, and/or damage limitations, to what extent is the air carrier precluded from asserting such exclusions or limitations? ¹²⁰

Notes:

^[1] See Chapter 2 supra.

^[2] See, e.g.:

Supreme Court: Olympic Airways v. Husain, 540 U.S. 644, 124 S. Ct. 1221, 157 L. Ed. 2d 1146 (2004) (flight attendant's unexpected and unusual conduct in refusing on three occasions to move asthmatic passenger to non-smoking section contributed to his death and constitutes an accident under Article 17 of the Warsaw Convention); Dooley v. Korean Air Lines Co., Ltd., 524 U.S. 116, 118 S. Ct. 1890, 141 L. Ed. 2d 102 (1998) (Soviets shot down KAL Flight KE 007).

Second Circuit: In re Terrorist Attacks On September 11, 2001, 538 F.3d 71 (2d Cir. 2008) ("The complaints . . . share a core allegation: the defendants played a critical role in the September 11 attacks by funding Muslim charities that, in turn, funded al Queda. Since 'there would not be a trigger to pull or a bomb to blow up without the resources to acquire such tools of terrorism and to bankroll the persons who actually commit the violence,' plaintiffs argue that the defendants should be held liable for the consequences of their material support for al Queda"); In re September 11 Litigation, 2009 WL 105685 (S.D.N.Y. 2009) (World Trade Center Properties, LLC (WTCP) "makes essentially two arguments to support its complaint: American's and Globe's negligence with respect to American Airlines Flight 11 set in motion the series of events that led to the four September 11 hijackings; and American's negligence in waiting twenty-two minutes before notifying federal authorities that its Flight 11 had been hijacked deprived the [FAA] and United Air Lines of vital information that could have been used either to prevent the hijacking of United Air Lines Flight 175 or its crash into Tower Two, I hold that American and Globe, having played no part in the screening of transporting of passengers with respect to United Airlines Flight 175 had no duty to United's passengers or other victims of the United crash"); In re September 11th Litigation, 500 F. Supp. 2d 356 (S.D.N.Y. 2007) ("On September 11, 2001, five terrorists hijacked American Airlines Flight 77 en route from Washington Dulles International Airport . . . and crashed it into the Pentagon, killing themselves, 53 passengers and the six-person crew"; facts issued as to whether air carriers took all necessary measures to avoid hijacking); In re Air Crash Near Nantucket Island, 392 F. Supp. 2d 461 (E.D.N.Y. 2005) (217 individual passengers died in the crash of EgyptAir Flight 900 into the Atlantic Ocean); In re Air Crash Near Nantucket Island, 340 F. Supp. 2d 240 (S.D.N.Y. 2004) (EgyptAir aircraft crashes); In re Air Crash at Belle Harbor, 2003 WL 124677 (S.D.N.Y. 2003) (American Flight 587 crashes after take-off); In re Air Crash at Belle Harbor, 2003 WL 21032034 (S.D.N.Y. 2003) (Warsaw Convention preempts all state common law claims arising from air crash); In re Air Crash Off Long Island, New York, on July 17, 1996, 65 F. Supp. 2d 207 (S.D.N.Y. 1999); Lam v. Aeroflot Russian International Airlines, 999 F. Supp. 728 (S.D.N.Y. 1998) (passenger killed on flight from Hong Kong to Russia); Dias v. Transbrazil Airlines, Inc., 26 Aviation Cases 16,048 (S.D.N.Y. 1998) (passenger dies from poor quality cabin air in aircraft).

Sixth Circuit: Bickel v. Korean Air Lines Co., Ltd., 1996 WL 490375 (6th Cir. 1996) (Soviets shot down KAL Flight KE 007).

Seventh Circuit: In re Aircrash Disaster Near Roselawn, Indiana, 1997 WL 183984 (N.D. Ill. 1997); 1997 WL 52109 (N.D. Ill. 1997).

Ninth Circuit: Martinez v. Aero Caribbean, 764 F.3d 1062 (9th Cir. 2014) (French designed airplane crashes in Cuba killing all aboard; no personal jurisdiction...