Chapter § 2A.05 LIMITATIONS ON AIR CARRIER LIABILITY
| Jurisdiction | United States |
| Publication year | 2021 |
§ 2A.05 Limitations on Air Carrier Liability
The advantage of the Warsaw and Montreal Conventions to air carriers is that liability417 and damages can be limited. Establishing which convention applies is a burden to be carried by the airline.418
[1] All Necessary Measures
One provision of the Warsaw and Montreal Conventions that generally limits air carrier liability is known as the "all necessary measures":
The Warsaw Convention provides:
"The carrier shall not be liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures." 419
The Montreal Convention provides:
"The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo . . . the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures." 420
For the provision to be effective, the carrier bears the burden of proving that it took "all necessary measures to avoid the damage" or that the damage could not possibly have been avoided.421
[2] Limiting Liability for Physical Injuries
The general provision of the Warsaw Convention relieving air carriers from liability for physical injuries under the "all necessary measures" standard422 does not apply to carriers of nations, including the United States, that have signed the Montreal Agreement. The Montreal Agreement provides that claims "arising out of the death, wounding, or other bodily injury of a passenger" are not subject to a defense of the carrier taking all necessary measures, or finding it impossible to take such measures.423
The Montreal Convention does not allow the air carrier to use the defense of all necessary measures except for flight delays.424
[3] Limiting Liability for Baggage Claims
The Warsaw Convention provision limiting air carrier liability on proof that the carrier has taken all necessary measures to avoid damage, or found it impossible to take such measures,425 is applicable to claims for lost, stolen or damaged baggage.
The Warsaw Convention also provides:
"In the transportation of good and baggage the carrier shall not be liable if he proves that the damage was occasioned by an error in piloting, in the handling of the aircraft, or in navigation, and that, in all other respects, he and his agents have taken all necessary measures to avoid the damage." 426
Aside from repetition of the "all necessary measures" clause,427 this provision allows the carrier to escape liability if it can prove that damage to baggage was the result of "an error in piloting, in the handling of the aircraft, or in navigation."428 This defense, if proven by the carrier, has the effect of totally exonerating the carrier from damaged baggage claims.
In addition, the Warsaw and Montreal Conventions set forth procedural rules with respect to claims for lost, stolen and damaged baggage. Failure of the claimant to adhere to these procedures can have the effect of limiting or nullifying the carrier's liability. The Warsaw Convention provides:
"(1) Receipt by the person entitled to delivery of baggage or goods without complaint shall be prima facie evidence that the same have been delivered in good condition and in accordance with the document of transportation.
"(2) In case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within 3 days from the date of receipt in the case of baggage and 7 days from the date of receipt in the case of goods. In the case of delay, the complaint must be made at the latest within 14 days from the date on which baggage or goods have been placed at his disposal.
"(3) Every complaint must be made in writing upon the document of transportation or by separate notice in writing dispatched within the times aforesaid.
"(4) Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part." 429
The Montreal Convention provides:
"1. Receipt by the person entitled to delivery of checked baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage or with the record preserved by the other means . . .
"2. In case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of the receipt in the case of checked baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his or her disposal." 430
The courts have been fairly strict in interpreting these provisions, holding that in the absence of a timely written complaint, the air carrier may be exonerated from liability for lost, stolen or damaged baggage431 unless fraud can be shown.432
[4] Limiting Liability for Flight Delays
Flight delays, whether of passengers or baggage, are subject to the Warsaw and Montreal Conventions' provisions allowing a carrier to escape liability if it has taken "all necessary measures" to avoid the damage.433 If, for example, a carrier provides alternate air transportation after it has cancelled a flight, it may have taken "all necessary measures" within the meaning of the Convention.434 Similarly, if a carrier cancels a flight to repair a mechanical malfunction that is required for passenger safety, it may be within the meaning of the clause exonerating the carrier from liability.435 In addition, an air carrier, both domestic and international, may be immune from liability for refusing to provide air transportation if "inimical to safety."436
It should be noted, if the complaint is for delay in the delivery of baggage, under the Warsaw Convention, the passenger has a maximum of fourteen days from the date on which the baggage was placed at the carrier's disposal to file a written notice of complaint with the carrier,437 and twenty-one days under the Montreal Convention.438
[5] Contributory and Comparative Negligence
The Warsaw Convention provides:
"If the carrier proves that damage was caused by or contributed to by the negligence of the person, the court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability." 439
The Montreal Convention provides:
"If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation . . . the carrier shall wholly or partly exonerated from its liability to the claimant . . ." 440
The carrier bears the burden of proving as a defense that the passenger's injuries were "caused by" or "contributed to" by some action or inaction of the passenger that may be described as negligent. Whether the defense involves contributory negligence,441 comparative negligence, or even assumption of the risk, is a matter to be left to local law. In New York, for example, if the carrier demonstrates negligence on the part of the passenger, it would be up to the trier of fact to determine the degree of comparative negligence between the carrier and the passenger in deciding the carrier's liability.442 At the least, a defense of comparative negligence443 can have the effect of limiting the carrier's liability, but in a jurisdiction in which the law provides for a total defense of contributory negligence or assumption of the risk, the effect may be the exoneration of the carrier from all liability.444
[6] Statute of Limitations
The Warsaw Convention provides:
"The right to damages shall be extinguished if an action is not brought within 2 years, reckoned from the date on which the aircraft ought to have arrived, or from the date on which transportation stopped.
"(2) The method of calculating the period of limitation shall be determined by the law of the court to which the case is submitted." 445
The Montreal Convention provides:
"1. The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned 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 carriage stopped.
"2. The method calculating that period shall be determined by the law of the court seized of the case." 446
This statute of limitations, as set forth in the Convention, is a relatively simple provision that leaves any difference in the matter of days in which the action may be brought up to local law.447 In general, the courts have been fairly literal in enforcing the two year limitation period.448 Class action tolling does not apply to claims brought under he Montreal Convention,449 nor does the commencement of another action in a different jurisdiction toll the time limitation of two years,450 and the automatic stay in a bankruptcy action may not toll the Montreal Convention statute of limitations.451 The relation back doctrine does apply to an amended complaint if the original complaint was timely.452
Strictly speaking, a statute of limitations is not a limitation on liability, but a defense that must be pleaded and proved. This means that actions or omissions by the carrier bearing on the question of liability do not affect the two year limitation imposed by the Convention. For example, the failure to deliver a ticket to a passenger giving proper notice of the applicability of the Conventions would affect the carrier's ability to limit its liability under the Conventions, but it would not affect the two year limitation period in which the plaintiff must institute the action.453
[7] Limitations on Damages
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