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LIABILITY OF AIR CARRIERS FOR PASSENGER INJURIES EXPLORING THE PARAMETERS OF ACCIDENT UNDER INTERNATIONAL AVIATION CONVENTIONS
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LIABILITY
OF AIR CARRIERS FOR PASSENGER INJURIES: EXPLORING THE PARAMETERS OF 'ACCIDENT'
UNDER INTERNATIONAL AVIATION CONVENTIONS
AUTHORED BY
- JAYANT KASHYAP[1]
&
DIVYANSH BHATNAGAR[2]
ABSTRACT
This research paper aims to examine
the various dimensions of air carrier liability concerning passenger injuries,
with a primary focus on Article 17 of the Warsaw Convention and its
contemporary equivalent, the Montreal Convention. The international aviation
agreements serve to specify the parameters within which airlines have
responsibility for the physical harm endured by passengers during international
air travel. The concept of an “accident” plays a significant role in liability,
as it is a phrase that is not explicitly defined in these standards but is
crucial in assessing eligibility for compensation. The paper explores notable
legal cases that have influenced the understanding and application of the term
“accident” in relation to air carrier liability. This paper analyses the
significant legal case of Sethy v. Malev-Hungarian Airlines, which established
the definition of an “accident” to include unforeseen or atypical incidents that
are beyond the passenger's influence. The practical implementation of this
definition is examined by analysing several instances of passenger injuries
occurring during flight operations, thereby elucidating the intricate nature of
the concept.
Moreover, the paper examines the
pivotal stages of embarkation and disembarkation, delving into the determinants
of a passenger's legal standing during these processes. This text examines the
establishment of legal precedents in instances such as Hunter v. Lufthansa
Etihad Airlines and McCarthy v. Northwest Airlines, among others. It
demonstrates how courts ascertain whether passengers are engaged in the act of
embarking or disembarking.
The matter of liability extends
beyond air carriers and encompasses several other parties, including airport
operators, security agencies, and ground handling services. The article
explores the complex legal connections and obligations of these entities,
referencing legal cases such as Re Air Disaster at Lockerbie, Baker v. Landsell
Protective Agency, Vumbaca v. Terminal One Group Association L.P., and Johnson
v. Allied Eastern States Maintenance Corp. to clarify the boundaries of
liability.
This paper examines the dynamic
nature of health-related passenger injuries, specifically Deep Venous
Thrombosis (DVT), within the context of air travel. It delves into the analysis
of legal cases, such as Olympic Airways v. Husain and Hu v. Air China Limited,
to determine the classification of these conditions as “accidents” and the
corresponding liability of air carriers.
INTRODUCTION
According to Article 17 of the Warsaw
Convention, an air carrier can be held accountable for bodily injury resulting
from an accident that occurs during international flights. Once an individual
establishes evidence of physical harm resulting from an accident, the sole
legal recourse available to the air carrier is to assert that it undertook all
requisite precautions to prevent the occurrence of the damage, or
alternatively, that it was impracticable to implement such precautions.[3]
Therefore, it establishes the parameters under which an airline may be held
accountable for the well-being of its passengers. The aforementioned criteria
pertain to instances of physical harm resulting from accidents occurring either
during the course of air travel or during the act of boarding or disembarking
from an aircraft. Nevertheless, this norm does not provide a definitive
definition for the term 'accident'.
The Sethy v. Malev-Hungarian Airlines[4]
case involved an incident where a passenger sustained injuries as a result of
slipping and falling over a piece of luggage that obstructed the aisle during
the boarding process. The court determined that the incident in question did
not meet the criteria for classification as an “accident” due to the absence of
any unforeseen or extraordinary circumstances associated with the presence of a
suitcase in the aisle of an aircraft during the boarding process. The court
expressed its opinion that the plaintiff failed to provide any details regarding
the incident that would indicate a deviation from standard boarding procedures
or identify any actions by airline staff that could be attributed to his
injury. Additionally, the court noted that it is common for bags to be situated
in different areas within the cabin before a flight. The primary objective of
the Warsaw Convention was to provide a legal framework wherein wounded
passengers could be compensated without the burden of proving culpability, as
the sole requirement for compensation was the demonstration of the accident
itself. Any incident that is unforeseen or atypical and originates from sources
outside the control of the passenger should be classified as an accident in
accordance with the provisions outlined in Article 17.
In order for the Warsaw Convention to
be deemed applicable, it is necessary for the accident resulting in damage to
occur throughout the stages of embarkation and disembarkation. In the legal
proceedings of Hunter v. Lufthansa & Etihad Airlines,[5]
the court delineated a set of criteria to ascertain the status of a passenger
as having disembarked or not. These criteria encompassed the passengers'
actions at the time of the incident, any limitations imposed on their mobility,
the imminent nature of their boarding, and the spatial proximity to the
departure gate.
In a separate instance[6],
the court's decision underscored that the important determinant was not the
physical location of the passengers, but rather their specific activities at
the time. The court explicated that in order for the plaintiff, specifically
the passenger, to embark on the aeroplane, several conditions needed to be met.
The aforementioned procedures encompassed the following steps: presenting a
ticket, obtaining boarding passes and baggage tags, being assigned a designated
seat, undergoing customs and immigration procedures, undergoing security checks
for both personal and baggage screening, transitioning to the bus, boarding the
bus, travelling on the bus, alighting from the bus, and ultimately entering the
aircraft. Moreover, in the legal matter of McCarthy v. Northwest Airlines,[7]
the court adopts the viewpoint that assessing whether a passenger is in the
process of embarking necessitates an examination of the passenger's conduct at
the time of the incident, the actions undertaken by the passenger during the
occurrence of the injury, and the degree of authority exercised or anticipated
from the carrier during the boarding procedure.
In the legal matter of Dick v.
American Airlines,[8] the
court rendered a decision wherein it concluded that a customer who suffered
injuries on an escalator while transitioning between boarding gates was
actively involved in the act of embarking or disembarking. In the case of Ugaz
v. American Airlines[9],
the court reached a decision that classified a passenger who experienced a
slide on a non-operational escalator while transitioning from the aeroplane to
the customs area as being in a state of disembarkation.
DEFINITION
OF “ACCIDENT” & LIABILITY
ARISING
FROM IT
The term “accident” is defined in
Annex 13 of the Chicago Convention. According to this definition, an accident
refers to an event that occurs during the operation of an aircraft, starting
from the moment individuals board the aircraft with the intention of flight until
all passengers have disembarked. This event involves either fatal or serious
injuries to passengers, damage or structural failure of the aircraft, or the
aircraft being missing or completely inaccessible. Incidents, in the context of
aircraft operations, encompass many events that have the potential to impact or
compromise the safety of an aircraft. Singhal v. British Airways,[10]
involved a customer who experienced bodily damage as a result of stepping down
a distance of 6 inches during the process of disembarking from the aircraft.
However, the plaintiff was not granted compensation in this particular
instance. The court in the United Kingdom determined that the airport manual
mandated the measurement of distance, and there were no extraordinary or unforeseen
circumstances surrounding the aforementioned occurrence.
According to Article 30(1) of the
Montreal Convention, in cases where a claim is made against a servant or agent
of the carrier regarding damage covered by the Convention, the servant or agent
may assert the same conditions and limits of liability as the carrier, provided
they can demonstrate that their actions were within the scope of their
employment. However, in accordance with Article 30(3), this rule is not
applicable in cases where it is established that the damage occurred as a
result of a deliberate act or omission by the servant or agent, carried out to
cause harm or with reckless disregard and awareness that damage would likely
ensue.
The court ruling in the Lockerbie Air
Disaster case[11] determined
that a third-party contractor responsible for security, operating
independently, was considered an agent of the carrier. Consequently, this
contractor might be subject to the provisions of the Warsaw Convention.
Similarly, in the case of Baker v. Landsell Protective Service,[12]
the security service in question was contracted by the carrier, as mandated by
legal obligations, to conduct security screenings of passengers and their
carry-on baggage before boarding. The aviation security service providers may
take advantage of the constraints as they were fulfilling the responsibilities
that would otherwise be mandated for the carrier. In the legal matter of
Vumbaca v. Terminal One Group Association L.P.,[13]
the Federal District Court situated in the Eastern District of New York
rendered a decision affirming that an operator of an airport terminal acts as a
representative of the carrier in the context of ascertaining liability pursuant
to Article 30(1) of the Montreal Convention. The reason for this is that the
terminal operator was carrying out their duties in accordance with the contract
of carriage established between the passenger and the airline responsible for
her transportation. As a result, the Montreal Convention serves as the
exclusive legal recourse for the plaintiff in her grievances against the
terminal operator. The Court concurred that the Montreal Convention was
applicable in this case, as Terminal One acted as a representative of the air
carriers it served and its acts were in keeping with the airlines' contractual
obligations to transport passengers.
The aforementioned legal precedent,
Johnson v. Allied Eastern States Maintenance Corp.,[14]
involved the application of the aforementioned law to corporations providing
skycap services, specifically those responsible for assisting passengers in
boarding aircraft. On July 12, 1978, Gwendolyn and Zaccheus Johnson made
arrangements to go by air from Baltimore, Maryland, to Nassau, located in the
Bahamas, specifically on Eastern Airlines Flight 941. The individuals were
transported to Baltimore-Washington International Airport by their offspring.
Upon their arrival, Mrs. Johnson, who suffers from arthritis, was promptly
greeted by a skycap affiliated with Allied. The skycap kindly extended an offer
for a wheelchair to assist Mrs. Johnson as she disembarked from the vehicle.
The individual consented and entered the wheelchair, afterwards being escorted
by the skycap through the terminal, bypassing the check-in gate, and proceeding
onto a boarding ramp that provided access to the aircraft. At the midpoint of
the ramp, the wheelchair encountered a metal strip, resulting in its
overturning and causing Mrs. Johnson to be propelled against the wall and
subsequently onto the floor. Despite the Johnsons' persistence in their trek to
Nassau, Mrs. Johnson had significant discomfort for a prolonged period.
Subsequently, she acquired knowledge of having incurred a fracture in her foot
along with several other bodily traumas. The court determined that the primary
criterion is solely whether the specific action undertaken by the agent, which
led to harm, was in support of the transportation agreement. In this particular
scenario, the condition is readily satisfied. The act of boarding the passenger
onto the aircraft can be considered as a means of advancing the contractual
agreement for transportation. In the absence of a skycap and a service contract
between Allied and Eastern Airlines, the responsibility of assisting Mrs.
Johnson in boarding the plane would have fallen upon the airline itself. Given
that Allied was fulfilling a portion of the airline's obligations as outlined
in the contract of carriage, it possessed the same level of protection as the
airline itself would have been entitled to under the Convention, with no
additional privileges or disadvantages.
Furthermore, according to Standard
3.45 of the International Civil Aviation Organisation (ICAO) Annex 9, which is
part of the Chicago Convention on Facilitation, it is mandated that the air
carrier assumes the responsibility for the safekeeping and well-being of
passengers and crew members until they have been officially granted entry into
a state in accordance with Standards 3.42 and 3.43 of the aforementioned Annex.
Passengers possess the right to initiate legal action against the airline
beyond the scope of the Convention, through legal frameworks that do not shield
the airline through the imposition of liability limitations. Individuals who
meet certain criteria have the right to make a legal claim under the national
law, provided that their claim does not come within the scope of Article of the
Warsaw Convention. This convention serves as the exclusive foundation for
liability claims. The user's text lacks academic tone and structure. It should
be rewritten as follows: “ The resemblance between Article 17 of the Montreal
Convention and Article 17 of the Warsaw Convention is notable, albeit not
identical. This provision encompasses compensation for any harm incurred in the
event of a passenger's death, injury, or physical harm. Hence, it is imperative
that the harm incurred as a result of an unforeseen incident, whereby two
conditions must be met: (i) there must exist a causal connection between the
harm and the incident, and (ii) the occurrence leading to the harm must meet
the criteria of being classified as an accident. According to Article 17(1) of
the Montreal Convention, the carrier assumes responsibility for any harm
suffered by a passenger resulting from the death or physical injury, provided
that the incident leading to the death or injury occurred either on the
aircraft or during the process of boarding or disembarking.
LIABILITY
OF AIRPORT OPERATORS
The determination of the status and
function of the airport operator revolves around establishing whether the
operator acts as an independent contractor in relation to the passenger or as
an agent of the air carrier, responsible for fulfilling a portion of the
carrier's obligation to transport individuals or cargo between different
locations. According to three judgements[15]
rendered by the Supreme Court of Cassation in Italy, it was determined that the
Warsaw Convention does not apply to ground handling and deposit services.
Furthermore, these services cannot be regarded as ancillary to a contract of
carriage by air, and as a result, they fall under the jurisdiction of Italian
domestic law.
In contrast to Article 17(2) of the
Montreal Convention, which explicitly includes the term “carrier” to encompass
damage to baggage, Article 17(1) just use the phrase “carrier” without
reference to its servants or agents. However, it is worth noting that the term
in question can also be inferred from Article 17(1), as Article 21 specifically
addresses the issue of compensation in the event of harm or death of a passenger
and employs this particular term. Hence, the issue of compensation arising from
culpability under Article 21 can only be considered if the carrier's servant or
agent is responsible for causing death or harm to a passenger, as stipulated in
Article 17(1).
A frequently encountered concern
pertains to the party responsible for the harm caused to a facility in close
proximity to the airport as a result of an aircraft deviating slightly from its
intended trajectory due to the ingestion of birds into its engine during
takeoff or landing. Furthermore, there is a question as to whether this
incident of bird strike can be classified as an accident. In close proximity to
the airport, there was a little deviation in the flight path of an aircraft. A
bird strike refers to the occurrence of a physical impact between an avian
organism and an aircraft while the latter is engaged in flight or during the
phases of takeoff or landing.
The case of Hawaiian Airlines, Inc.
v. United States,[16]
revolves around a bird strike incident. Specifically, a Lockheed Electra L-188
aircraft experienced damage when it encountered egrets being ingested into two
of its engines during the landing process at Patrick Air Force Base in Florida.
The plaintiff argued that the government displayed negligence by allowing
circumstances that facilitated bird nesting at Patrick, particularly in close
proximity to the runways. Additionally, the plaintiff claimed that the
government failed to divert or postpone the aircraft's landing until the birds
had vacated the area. In accordance with Florida legislation, the airport
operator is legally obligated to exercise due care, caution, and diligence in
ensuring the provision and upkeep of the airfield in a condition that
reasonably ensures safety for its intended purposes and apparent design. The
district court acknowledged that the bird-control programme implemented at
Patrick Air Force Base mandated airport staff to promptly report any sightings
of birds on the airfield.
According to the court's ruling, the
defendant had an obligation to exercise a reasonable level of care in order to
ensure the airfield was maintained and operated in a reasonably safe manner.
This included the responsibility to alert aircraft of any known hazards, such
as the presence of birds on or near the runway, and to take appropriate
measures to prevent birds from occupying the runways. Upon evaluating the
bird-control programme, the Florida court determined that the government had
exhibited appropriate levels of care and diligence in the maintenance and
operation of the airfield. The complaint was subsequently dismissed by the
court. In a separate legal matter, specifically Safeco Insurance Co. v. City of
Watertown,[17] an
incident occurred involving the crash of a Saberliner jet at Watertown
Municipal Airport in South Dakota. The crash was a result of the ingestion of
gulls into both of the aircraft's engines. Among other things, the plaintiff
claimed negligence against the airport operator.
According to a court in South Dakota,
the essential components of a negligence claim consist of the existence of a
duty owed by the defendant to the plaintiff, a violation of this obligation,
and a demonstration that the breach directly caused the loss suffered by the
plaintiff. The court easily determined that the airport operator had an
obligation, separate from federal legislation, to ensure that pilots utilizing
the airport exercised reasonable caution in maintaining a hazard-free
environment or providing notice of any hazards unknown to the pilots. The key
concern revolved around the presence of avian-related challenges at the
airport, necessitating the issuance of cautionary notices. The court recognised
the inherent challenges associated with fully eradicating a bird issue and
determined that the airport operator had the option to employ a Notice to
Airmen (hence referred to as 'NOTAM') as a means to apprise pilots of the
bird-related risk. The court attributed blame to the airport operator primarily
due to their failure to issue the Notice to Airmen (NOTAM). According to the
district court's ruling, the pilot and co-pilot were deemed non-negligent due
to their adherence to standard operating protocols, implementation of
reasonable safeguards, and thorough examination of any relevant Notices to Airmen
(NOTAM) pertaining to the airport in question.
The case of Insurance Co. of North
America v. City of New Haven[18]
involves an incident at the Tweed-New Haven Airport in Connecticut, where a
Cessna Citation aircraft crashed during take-off due to the ingestion of
gulls. The Connecticut court employed
conventional negligence rules to ascertain if the operator exhibited
negligence. To substantiate their claim, the plaintiff had to demonstrate that
the airport operator owed them a duty of care, that this duty was violated, and
that the violation directly resulted in the incurred damages. The court
determined that the airport operator bears the responsibility of exerting a
reasonable level of care and control in order to safeguard its invitees from
potential hazards that can reasonably be foreseen to arise from the state of
the premises or the activities occurring therein. Given the recognised presence
of birds as a potential threat at the airport, it becomes apparent that the
responsibility falls upon the airport operator to fulfil their duty of
exercising reasonable care towards pilots utilising the airport. This duty
entails taking appropriate measures to address the existing bird hazard, or at
least, providing adequate warning to pilots who may be unaware of the potential
danger. The court conducted an evaluation of the strategies implemented by the
airport operator in order to mitigate the risk posed by birds.
The court determined that there was a
lack of evidence indicating that the airport operator had any bird attractions
in place. The amount in question is $17. Nevertheless, the court acknowledged
that the Notice to Airmen (NOTAM) has consistently been recognised as the
prevailing approach for informing pilots about the presence of avian threats.
The airport's failure to fulfil this obligation can be considered an act of
carelessness. The consensus among ICAO Member States was that the operator's
failure to issue a NOTAM resulted in their inability to reach an agreement on
the necessity of developing a convention on air traffic control (ATC)
liability. According to Article 17(1) of the Montreal Convention, the carrier
is held responsible for any damages incurred in the event of a passenger's
death or bodily injury, provided that the accident occurred on board the
aircraft or during the processes of embarking or disembarking. The
aforementioned conditions refer to physical injuries that are incurred as a
result of an accident occurring either on an aircraft or during the act of
boarding or disembarking said aircraft. Nevertheless, this norm does not
provide a definitive definition for the term 'accident'.
In the legal case of Air France v.
Saks,[19]
the United States Supreme Court ruled that an incident falling under the
purview of Article 17 is characterised by an unforeseen or atypical occurrence
or circumstance that originates from outside the passenger. In this scenario,
the court was convened to determine whether the occurrence of a passenger's
unilateral hearing loss resulting from the depressurization commonly
experienced during a routine descent might be classified as an accident. The
Court determined that the absence of an accident might be established in cases
where a passenger's internal reaction resulted from the typical, customary, and
anticipated functioning of the aircraft. Therefore, the individual travelling
in this particular instance was unable to regain their health or well-being.
The Court proceeded to assert that any form of injury is the result of a series
of interconnected causes.
RECOURSE AGAINST
THIRD PARTIES
The Montreal Convention establishes
and prescribes financial liability caps for individuals travelling
internationally who are affected by aviation accidents in which external
parties may be held responsible for the resulting harm. The airline has the
option to mitigate its obligation in accordance with article 21(2)(b) by
exempting itself from any liability above the prescribed limits stated in
Article 21(1), provided that it can demonstrate that the injury was caused by
third parties. According to the Montreal Convention, it is no longer necessary
for plaintiffs to transform acts of ordinary negligence into the equivalent of
reckless or intentional acts. Nevertheless, a crucial aspect to consider when
examining any potential international aviation passenger lawsuit is whether the
airline may be deemed liable or if it is merely a casualty of the actions
carried out by the airport authorities, notwithstanding the significant extent
of suffering, harm, and loss incurred. Potential claimants may potentially
invoke Article 21(2)(a) of the Montreal Convention as a basis for asserting
that the defendants acted negligently. The airlines in question may potentially
invoke Article 21(2)(b) of the Montreal Convention as a legal basis to contend that
the injuries were caused by a third party rather than by the airline's
operations. The concept of negligence necessitates the provision of evidence
indicating the perception of risk or hazard by a reasonable individual within a
certain cultural context.
In the legal matter of Japan Airlines
v. Port Authority of New York and New Jersey,[20]
Japan Airlines initiated a lawsuit against the Port Authority on grounds of
negligence. The objective of the lawsuit was to obtain compensation for the
damages incurred by Japan Airlines aircraft. These damages were attributed to
the alleged negligence of the Port Authority, specifically their purported
failure to adequately remove snow and ice from the airport runway and
surrounding areas. According to the Court of Appeals, the Port Authority, in
its capacity as an airport operator, is obligated to ensure that JFK is
maintained in a sufficiently safe condition for the protection and welfare of
passengers and carriers who may bring legal action against the airport. It is imperative
to guarantee that the conditions at the airport are conducive to the safe
landing and departure of aircraft and to provide appropriate notification of
any circumstances that may compromise the secure operation of an aircraft. The
Court of Appeals determined that the Port Authority bears legal responsibility
for the financial losses incurred by Japan Airlines.
According to Article 37 of the
Montreal Convention, it is specifically stated that the rules within the
convention should not affect the determination of whether a person who is
responsible for damage has the right to seek compensation from another party.
The drafters of the Montreal Convention deemed it crucial to incorporate
Article 37 in order to safeguard the air carrier's entitlement to pursue legal
action against any other accountable individual or business while upholding the
carrier's rights as outlined in the Convention.[21]
Article 37 pertains to the regulation of a matter that initially seems obvious,
specifically the entitlement of the air carrier to seek redress from third
parties responsible for or involved in causing the damage.
According to the Montreal Convention,
there exists a principle of strict liability, whereby the responsibility for
any loss incurred is placed on the air carrier. This liability extends to
losses caused or influenced by other parties, such as the carrier's employees
or representatives, as well as any other airline involved in the execution of
the flight or any other relevant third party as defined in Article 21 paragraph
2b. Furthermore, in the context of carriage involving consecutive air carriers,
as stipulated in Article 36, it is important to note that the consignor or
consignee retains the choice to hold any of the involved air carriers
accountable, irrespective of whether the specific air carrier in question was
directly responsible for the incurred loss or not.[22]
According to Article 37, the Montreal Convention does not prohibit the air
carrier from exercising any right of recourse to which it is entitled.
LIABILITY
FOR INJURIES DURING TURBULENCE
The United States Second Circuit
rendered a decision in the case of Magan v. Lufthansa
German Airlines,[23]
wherein it was established that the assessment of whether a specific instance
of turbulence qualifies as an accident necessitates a thorough examination of
the factual circumstances on a case-by-case basis. The Second Circuit's
determination that an airline can be held legally responsible for injuries
incurred during turbulence was based on the interpretation of the term
“accident” provided by the Supreme Court in the Saks case. The court reiterated
the Saks formulation, which defines the term 'accident' as a sudden or atypical
incident or occurrence that originates externally from the passenger. However,
if an injury unequivocally arises from a passenger's internal response to the
typical, normal, and anticipated functioning of the aircraft, it cannot be attributed
to the accident.
Consequently, a passenger can seek
compensation for injuries incurred during turbulence, provided that the
individuals responsible for determining the facts concur that the turbulence
was unanticipated or atypical in terms of its severity or frequency. One of the
primary objectives of the Warsaw Convention is to restrict the potential
liability of carriers for accidents sustained by passengers, to avoid the
deterrence of potential investors in the airline business.[24]
The Montreal Convention shares similar objectives as well. In the legal matter
of Quinn v. Canadian Airlines International Ltd.,[25] the Ontario Court General Division
observed that existing legal precedents support the notion that severe
turbulence has the potential to be classified as an incident falling within the
scope of Article 17 of the Warsaw Convention. The statement does not assert
that a certain level of turbulence, which is lesser, uncommon, or unforeseen,
cannot be considered an accident.
LIABILITY
FOR HEALTH-RELATED ISSUES
A further concern that may arise
pertains to the potential liability of the air carrier for any harm caused to a
passenger's well-being while onboard an aircraft. The International Civil
Aviation Organisation (ICAO) has established specific Standards and Recommended
Practises (SARPS) about the well-being of individuals travelling by air, by the
authority granted under Article 44 of the Chicago Convention.[26]
Resolution A29-15 of the International Civil Aviation Organisation (ICAO)
Assembly, which was adopted by the contracting States, called for the gradual
prohibition of smoking on all international flights by July 1996. The
aforementioned resolution has been implemented in the domestic legislation of
the United States under 49 U.S.C. section 41706 in the year 2000. Similarly, in
the United Kingdom, airlines have voluntarily adopted measures to prohibit
smoking on board.
The case of Olympic
Airways v. Husain[27]
in the United States Supreme Court involved an individual with asthma who,
because of the significant health hazards posed by ambient cigarette smoke,
requested and was provided seats for himself and his spouse in the non-smoking
area of the aeroplane. Upon entering the plane, the individual became aware
that the assigned seats were situated a mere three rows in proximity to the
designated smoking area. As a result, the individual experienced a severe
asthma attack, ultimately leading to their demise. The widow submitted a claim
in accordance with the provisions of Article 17. The matter at hand was the
determination of whether the individual's demise was a result of an incident
falling under the purview of Article 17. The court deliberated on the matter of
whether the intervention, acting as a link in the causal sequence of
interactions between the individual with asthma (or their spouse) and the
flight attendant, had any discernible impact. The Court rendered a 6-2 decision
affirming that the incidents that transpired aboard the aircraft were deemed an
accident as defined by Article 17 of the Warsaw Convention.
The Court referenced its previous
ruling in Air France v. Saks,[28]
whereby it established that any form of harm can be attributed to a series of
causative factors. It further determined that an accident is deemed to have
transpired when one of these factors, occurring externally to the passenger, is
deemed to be an atypical or unforeseen event. The court dismissed Olympic
Airway's contention that solely the presence of cigarette smoke was pertinent
and that no incident transpired due to the flight attendant's lack of action.
The refusal of the flight attendant to reseat Husain on three separate
occasions can be identified as a contributing factor in the sequence of events
that ultimately resulted in his death. Furthermore, the attendant's denial of
the deceased's plea for aid can be classified as a discrete incident within
this chain of causality.
Deep Venous Thrombosis, a health
condition also known as DVT, is a potential concern that can arise over
prolonged periods of sitting. Deep vein thrombosis (DVT) refers to the
formation of a blood clot within the deep veins of the lower extremities. The
blood clot does not exhibit migratory behaviour. Deep vein thrombosis (DVT)
typically manifests in the distal lower extremity, specifically the calf,
however, it can occasionally manifest in the proximal regions such as the thigh
and pelvic area. Deep vein thrombosis (DVT) occurring in the calf muscle of the
lower extremity hinders the venous return to the heart as a result of the
formation of a blood clot within the affected vein. In the event that the clot
becomes dislodged, it has the potential to ascend and infiltrate the pulmonary
vasculature, thereby obstructing oxygen delivery and inducing a pulmonary
embolism, which, in certain instances, may result in fatality. The potential
threat of a clot that may have developed during an extended journey may not
manifest until several weeks have elapsed. At this juncture, the individual
would have likely encountered pronounced muscular contractions and discomfort
in the lower extremities, prompting the inclination to pursue medical
intervention.
In instances when deep vein
thrombosis (DVT) occurs after an extended air travel, it is advisable to
promptly seek medical intervention upon the manifestation of symptoms. This is
due to the comparatively straightforward and efficacious medical procedures
available for expeditious and successful clot treatment.[29]
In the event that the bodily injury or death of a passenger does not result
from an incident falling within the scope of an Article 17 accident as defined
by the Montreal Convention, there exists no grounds for the imposition of legal
responsibility upon the air carrier in accordance with the provisions of the
Convention. Instances of physical diseases experienced by passengers during or
after a flight, including heart attacks, asthma attacks, and diabetic shock, do
not fall within the scope of Article 17 accidents as defined by the Warsaw
Convention. Consequently, air carriers are not held accountable for damages
under the provisions of the Warsaw Convention about such situations.[30]
In the legal matter of Hu v. Air China Limited,[31]
it was observed that a passenger experienced a sudden collapse and subsequent
demise while in the process of queuing at the immigration/passport checkpoint
at Malpensa Airport. This unfortunate incident occurred after the completion of
a direct flight originating from Shanghai, China and concluding in Milan,
Italy. The postmortem examination determined that the individual's demise was
attributed to a significant occurrence of pulmonary thrombosis embolism. The
family endeavoured to prove Air China's liability by asserting that deep vein
thrombosis (DVT) qualifies as an article 17 accident and that the airline's
failure to provide enough warning about the risks associated with DVT might be
subject to legal action, either as an Article 17 accident or in accordance with
local legislation. The court in this particular case dismissed the assertion,
asserting that the Montreal Convention is the sole governing authority and
supersedes any local legislation. Furthermore, the court determined that
neither deep vein thrombosis (DVT) nor the failure to provide a warning about
the risk of DVT qualifies as an Article 17 accident.
CONCLUSION
The central notion of “accident”
within these standards has undergone careful examination, with courts
frequently highlighting its unforeseen or exceptional character, originating
from external events that impact passengers. The significance of this interpretation
is crucial in differentiating between ordinary operating occurrences and
accidents that meet the criteria for responsibility.
The commitment to passenger
protection is underscored by the elucidation of the scope of liability in the
Warsaw and Montreal Conventions. The treaties stipulate that to get
compensation, passengers must demonstrate that physical harm has occurred as a
direct consequence of an accident during any stage of an international flight.
This provision provides a more efficient process for compensating passengers
since it eliminates the need to establish negligence.
The examination of liability cases
has shed light on the complex function fulfilled by airport operators,
emphasising the importance of establishing their classification as either
independent contractors or agents of air carriers. The differentiation between
these two concepts can have a substantial influence on the resolution of legal
issues about culpability. Furthermore, the paper examines instances of avian
collisions and atmospheric disturbances, elucidating the parameters used to
classify these occurrences as accidents. The crucial considerations in making
such assessments are the unforeseen or exceptional characteristics of these
events and their significant impact on passengers.
The investigation has also
encompassed health-related concerns, including the effects of smoking on board
and the occurrence of deep vein thrombosis (DVT). The research highlights the
requirement for an incident to meet specific criteria to be classified as an
accident. Specifically, it must originate from an external source rather than
being caused by an internal reaction of a passenger to a pre-existing ailment.
Moreover, the paper examines the crucial elements of recourse and limitation of
liability, which are key constituents of these agreements. These mechanisms
enable air carriers to pursue legal recourse against third parties who may have
played a role in causing damages, while also setting limits on responsibility
to safeguard the long-term viability of the airline business.
Based on the aforementioned
discoveries, it is apparent that international aviation law, which is regulated
by the Warsaw and Montreal Conventions, aims to establish a complete structure
for handling matters of liability in the realm of air transportation. The
aforementioned accords aim to achieve a delicate equilibrium by both protecting
the rights of passengers and ensuring the sustainability of the aviation
sector. Nevertheless, it is crucial for stakeholders in the aviation industry,
such as passengers, carriers, and regulatory entities, to consistently observe
and adjust to the ever-changing difficulties and legal interpretations.
Additionally, it is necessary to conduct additional research and analyse legal
precedents to effectively tackle new concerns, such as those about advancing
technologies and shifting passenger demands. By adopting a flexible approach
and adhering to the principles of equity and responsibility, the global
aviation community can guarantee the continued efficacy of these conventions as
effective mechanisms for managing liability issues within a continuously
changing worldwide sector.
[3] Article 20 of the Warsaw
Convention.
[4] Sethy v. Malev-Hungarian Airlines,
2000 US Dist. Lexis 12606 (S.D.N.Y., 2000).
[5] Hunter v. Lufthansa & Etihad
Airlines, 09 CV 3166 (RJD) (JMA) (E.D.N.Y. Feb. 26, 2013).
[6] Day v. Trans World Airlines, 393
F. Supp. 217 (S.D.N.Y. 1975).
[7] McCarthy v. Northwest Airlines,
862 F. Supp. 17 (1994).
[8] Dick v. American Airlines, 476 F.
Supp. 2d 61 (D. Mass. 2007).
[9] Ugaz v. American Airlines, 576 F.
Supp. 2d 1354 (S.D. Fla. 2008).
[10] Decision rendered by the Uxbridge
County Court in England on November 2, 2006 (Unpublished).
[11] Re Air Disaster at Lockerbie, 776
F. Supp. 710 (D.C.N.Y., 1991).
[12] Baker v. Landsell Protective
Service, 590 F. Supp. 165 (S.D.N.Y. 1984).
[13] Vumbaca v. Terminal One Group
Association L.P., 859 F. Supp. 2d 343 (E.D.N.Y. 2012).
[14] Johnson v. Allied Eastern States
Maintenance, 488 A.2d 1341 (D.C. 1985).
[18] Insurance Company of North America
v. City of New York, 71 N.Y.2d 983, 529 N.Y.S.2d 70, 524 N.E.2d 424 (N.Y.
1988).
[22] Montreal
Convention, Elmar Maria Giemulla, Ronald Schmid et al., eds, Montreal
Convention, looseleaf (Alphen aan den Rijn, the Netherlands: Kluwer Law
International, 2006).
[26] Usha Balasubramaniam, “Air
Passenger Health and Consumer Protection,” Journal of Air Law and Commerce,
vol. 73(675): 2008, p. 678.
[29] George N.
Tompkins, Jr., “Deep vein Throbosis (DVT) and Air Carrier Legal Liability – The
Myth and the Law,” Air and Space Law, vol. 26(4-5): September 2001.
[30] Krys v.
Lufthansa German Airlines, 119 F.3d 1515, 1520 (11th Cir. 1997);
Rajcooar v. Air India, 89 F. Supp. 2d 324 (E.D.N.Y., 2000)
[31] Hu v. Air China Limited, Judgment
No. 399/2009 of January 7, 2009, Tribunal of Busto Arsizio (Varse) in Case No.
1118 of 2007.
Article Information
LIABILITY OF AIR CARRIERS FOR PASSENGER INJURIES EXPLORING THE PARAMETERS OF ACCIDENT UNDER INTERNATIONAL AVIATION CONVENTIONS
Authors: JAYANT KASHYAP, DIVYANSH BHATNAGAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/25
- Issue 7
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International Journal for Legal Research and Analysis
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