The Montreal Convention: can passengers finally recover for mental injuries?

• Author: Cunningham, McKay

ABSTRACT

Since the 1920s, recovery for accidents suffered on international flights has been subject to the Warsaw Convention's limitation of "bodily injury." To address perceived inequities stemming from this limitation, some courts invoked a liberal interpretation of the phrase "bodily injury," and the resulting and fragmented judicial precedent threatened the treaty's goal of international uniformity. Although Warsaw's long-awaited replacement, the Montreal Convention, retains the "bodily injury" language, a close study of the treaty's history and, more importantly, the negotiations among the signatories' delegates suggests that the great majority of nations intended to broaden the allowable recovery beyond strict bodily injury and that many had in fact already interpreted the phrase to include mental injury. Furthermore, the policy informing the new treaty substantively changed from protecting the airline industry to protecting the passenger.

As a result, courts faced with claims under the Montreal Convention must undertake a materially different analysis from those courts that addressed similar claims under the Warsaw Convention.

TABLE OF CONTENTS I. INTRODUCTION II. WARSAW'S HISTORY III. FRAGMENTED CASE LAW A. Before Floyd B. Floyd C. After Floyd 1. Bending Over Backwards 2. Refusing to Bend at All 3. Bent out of Shape IV. THE MONTREAL CONVENTION A. Broader Recovery: The First Pass B. Broader Recovery: The Second Pass C. Broadsided and Passed Over D. Broader Recovery: A Passing Hope E. Broader Recovery Passed By V. CONCLUSION I. INTRODUCTION

Since 1929, recovery for accidents suffered on international flights has been limited to bodily injury. Although the 1999 Montreal Convention retained the "bodily injury" language, a close study of the treaty's history and, more importantly, the negotiations among the signatories' delegates suggests that the great majority of signatories intended to broaden the allowable recovery beyond strictly bodily injury and that many signatories had already interpreted the phrase to include mental injury. As a result, courts interpreting "bodily injury" under the new treaty should closely review the intent of the signatories before adopting the previous treaty's precedent.

Eighty years ago, when dignitaries prescribed a uniform law to govern international commercial flights, prophylactic measures were necessary to encourage growth in a nascent and dangerous field. As a result, the Convention for the Unification of Certain Rules Relating to International Carriage by Air, commonly known as the Warsaw Convention, adopted a protectionist policy designed to limit air carriers' potential liability in the event of accidents. (1) Of course, this policy did not inure to the benefit of the passenger. Even when Warsaw allowed recovery, the damages were conservatively capped. (2) Several international conventions in the past half-century strove to dilute the seemingly draconian measures that truncated recovery when a passenger suffered grievous injury on an international flight.

One such limitation on passenger recovery stemmed from Article 17, which allowed recovery for death or bodily injury. (3) In light of Warsaw's pronounced protectionist policy, (4) courts have interpreted "bodily injury" to exclude mental, emotional, and psychological injury. (5) Under this framework, an airline employee could molest a minor, hold a gun to a passenger's head, racially discriminate, defame, or slander without fear of liability. (6) If a pilot deliberately flew through a hurricane resulting in an extended near-death experience, a passenger could recover for a bruised arm, but not for Post-Traumatic Stress Disorder.

Perhaps cognizant of this apparent inequity or uncomfortable with the task of categorizing a personal injury as either bodily or mental, U.S. courts began allowing recovery for mental injury in some circumstances. Outside the plain meaning of Warsaw's text, and thus, without guidance from the treaty itself, the decisions varied widely. Some courts only allowed mental injury recovery when it flowed from, or was caused by, bodily injury. (7) Others awarded mental injury recovery when it was associated with, or occurred in close proximity to, bodily injury. (8) Still others allowed it without any concomitant bodily injury. (9)

After the Supreme Court addressed the meaning of bodily injury in Eastern Airlines, Inc. v. Floyd, (10) a majority trend emerged: recovery was permitted only for mental injury that resulted from bodily injury. However, this trend also spawned aberrant results. For example, a passenger assaulted by an airline employee could recover for a scratch on the arm but not for psychological damages stemming from molestation, unless the passenger could prove that her mental injuries derived from the scratch rather than the assault. As the Ninth Circuit Court of Appeals stated, passengers who suffered psychological injuries that did not flow from physical injuries had no recourse: "To the extent that such plaintiffs are left without a remedy, no matter how egregious the airline's conduct, that is a result of the deal struck among the signatories to the Warsaw Convention." (11)

In 1999, representatives from 121 states convened in Montreal, Canada, not to amend Warsaw, but to replace it with a new international treaty. (12) Recovery for "mental injury in the absence of accompanying physical injury" was a primary objective and was listed as a condition to the United States' participation. (13) Although a clear majority of states voiced approval for mental injury recovery, the new treaty somehow retained the 1929 Warsaw limitation of "bodily injury." (14)

Part II of this Article presents a history of the Warsaw Convention, including the international community's repeated but largely ineffective efforts to modernize the treaty. Part III examines the divergent analysis and results reached by several courts interpreting the bodily injury requirement. Part IV studies the negotiations among the delegates at Montreal and suggests that the new treaty broadened the scope of passenger recovery even though the old text remained unchanged.

2. WARSAW'S HISTORY

   In 1925, two years before Charles Lindbergh's transatlantic flight, a global system of liability governing international flights was conceived in Paris. (15) Non-military, commercial air travel was relatively rare, and the forethought implicit in aspiring to global uniformity distinguishes this early effort. In Warsaw, four years later, thirty-two nations agreed to the Warsaw Convention. (16) The United States was not a member of the League of Nations, which produced the treaty, and had neither voice nor vote, but agreed to its terms in 1934. (17)

   The Warsaw Convention sought to unify the rules governing international air transportation and provide standard documentation for international transportation of freight. (18) Notably, a primary goal was to limit air carrier liability: (19) "[I]n 1929, the parties were more concerned with protecting air carriers and fostering a new industry than providing full recovery to injured passengers...." (20) In the first half of the twentieth century, air travel was viewed as dangerous, and the developing commercial industry required legal protection to ensure growth. (21) Absent willful misconduct, if an international flight crashed, killing all on board, claims were limited under the Warsaw Convention to a maximum of $8,300 per passenger. (22) Moreover, Warsaw prohibited punitive damages. (23)

   The treaty cast a broad net. In general terms, it applied when (1) an accident (2) resulted in death or bodily injury (3) while en route, embarking, or disembarking on an international flight. (24) While judicial interpretation has vacillated somewhat, (25) Warsaw's broad reach has traditionally been coupled with exclusivity; thus, the terms of the treaty prevented passengers from bringing claims under any other law. (26) For example, if a passenger's death on an international flight fell within Warsaw's ambit, recovery was limited to $8,300 regardless of whether local law would allow further recovery or related claims.

   Spurred by World War II developments of larger, more capable aircraft, global air transportation had grown considerably by 1950. (27) Several Warsaw signatories, including the United States, moved to increase the damages cap to approximately $16,600 and to modernize the air freight documentation system. (28) But the United States never signed what became known as the 1955 Hague Protocol, (29) and it took eight years for the necessary thirty countries to sign--thereby ratifying--the Protocol.

   Additional amendments to the Warsaw Convention--seven in total--reflected the international community's repeated attempts to modernize the original agreement. In 1965, dissatisfied with the liability limits, the United States threatened to denounce Warsaw but withdrew notice of denunciation when all major foreign and U.S. carriers privately agreed that accident victims on flights to or from the United States could receive compensation of up to $75,000 per passenger. (30) Such inter-carrier agreements were facilitated through the International Air Transport Association (IATA) (31) and proved to be a useful, although piecemeal and temporary, tool in updating Warsaw.

   Another attempt to amend Warsaw, the 1971 Guatemala City Protocol, featured an amendment that would impose liability on the carrier for "an event which caused the death or injury" of a passenger. Importantly, "injury" was no longer modified by "bodily." (32) But the amendment was not ratified by the United States, as another effort to amend Warsaw--the 1975 Montreal Protocols--absorbed the Guatemala City effort. (33) The 1975 Montreal Protocols incorporated an increased liability cap that was part of the Guatemala City Protocol, replaced the gold standard with an artificial currency conversion, and updated Warsaw's cargo documentation...