June 8, 2010
Not every passenger on an airline flight is treated equally, regardless of what fare was paid. This is not about first class vs. coach. We’re talking about how passengers or their heirs are treated in the event of an airline crash.
Many of us think that everyone involved in an airline crash gets well compensated by whatever airline is responsible. This is not always the case. Most people are surprised to learn that passengers on international tickets (even if a segment of the flight is strictly domestic) are not treated exactly the same as those on purely domestic itineraries.
Take the crash of Continental Connection dba Colgan Air Flight 3407, which crashed on February 12, 2009 at Clarence Center, New York. Some passengers on this flight were coming home from other countries. These passengers had transferred from international flights at Newark, connecting to Colgan Air’s Flight 3407 to Buffalo. The families of these international passengers have the same choice of law available to them as the families of the passengers taking Flight 3407 as their only flight or connecting from another flight from a location within the United States, with some important exceptions.
If a flight goes out of control, climbs, dives and rocks wildly from side to side all due to pilot negligence, domestic passengers can recover for the full extent of their emotional distress injuries. These injuries often are more severe, debilitating and lasting than a broken bone or laceration. Yet, in defiance of medical/scientific knowledge and common sense, passengers on a domestic flight with an international leg to their itinerary are discriminated against and denied equal justice unless they can prove that some physical injury was the source of their emotional/mental suffering.
Another recent tragedy was that of American Airlines Flight 331, which crashed as it attempted to land at Norman Manley International Airport in Kingston, Jamaica, during a torrential downpour on the night of December 22, 2009, carrying 154 people. The Boeing 737 800 skidded on the slippery runway and slammed into a sandy embankment a mere 15 feet from the Caribbean Sea. The impact literally tore the airplane apart.
Of the 154 people on board, over 40 were hurt, at least four of them critically, but all survived to tell the harrowing story. Survivors described the panic that ensued after the aircraft overshot the runway with some being struck by overhead luggage that fell around them. Witnesses said the air around the wreckage was thick with the smell of smoke and burning jet fuel.
Since American Airlines Flight 331 was an international flight between Miami and Jamaica, the rights of all the passengers on this flight will be governed by an international treaty known as the Montreal Convention.
For those passengers aboard Colgan Air Flight 3407 on this domestic last leg of their itinerary which also had an international segment, the rights of their heirs are also being governed by the Montreal Convention.
The Montreal Convention
The Convention for the Unification of Certain Rules for International Carriage by Air, commonly known as the Montreal Convention, is an international treaty that regulates liability for international travel. The Montreal Convention was promulgated in 1999 by the International Civil Aviation Organization (ICAO), a specialized agency of the United Nations that controls international air navigation and transport. The Montreal Convention superseded the provisions of the Warsaw Convention, which had governed most international air accident personal injury claims since 1929 when the airline industry was still in its infancy.
The Convention has over 100 member states, including the United States and Jamaica. The United States adopted the Montreal Convention in 2003, becoming the 30th member state to ratify the new treaty.
The Montreal Convention Defined: The Montreal Convention applies to the international carriage of persons, baggage or cargo by aircraft, where international carriage means any flight between points in each of two state parties or any flight between points within the same state party, as long as the flight also stops in a point in another foreign state.
For any flight covered by the Convention, the air carrier is liable for passenger injury or death from an accident on board, or during embarking or disembarking.
Changes from the Warsaw Convention to the Montreal Convention
The Montreal Convention revised the Warsaw Convention in three significant ways:
Two-tier liability system
The Montreal Convention increased liability limits, based upon the significance of the damages. Under this new system, as of 2009, air carriers are strictly liable for proven damages up to 113,100 Special Drawing Rights, or SDRs, which equals $179,829.
(SDRs are a mix of currency values established by the International Monetary Fund. Tying the value of damages to SDR units allows the available damages to rise with inflation. Currently 100,000 SDRs can be converted into roughly $150,000, although this value fluctuates daily).
If damages exceed 113,100 SDRs, the carrier will be liable without limit unless it can prove that it was not negligent, or that a third party was solely responsible for the accident.
Amended jurisdictional provisions
Under the Warsaw Convention, injured people were limited to pursuit of their legal claims in courts where the carrier was domiciled or had its principal place of business, where the carrier had a place of business where the contract was made, i.e., where the ticket was purchased, or where the flight was scheduled to terminate. Under the Montreal Convention victims and their families are now allowed to sue foreign carriers in their place of permanent residence.
The Montreal Convention now requires that all international carriers have liability insurance, a mandate that was not present during the Warsaw Convention.
These changes reflected a shift from an approach that benefitted airlines to an approach that is friendlier to consumers, and although the Montreal Convention is a clear improvement over the Warsaw Convention, is not consistently just.
Better for Consumers, but Not Always Ideal
The Montreal Convention is certainly an improvement over the Warsaw Convention for injured people, but the terms may still be less favorable than the general negligence laws of domestic jurisdiction.
Under the Montreal Convention, an injured party has two years to bring a claim, a time limit that is less than many domestic states. Also, under the Montreal Convention, an injured person can only recover compensatory, not punitive, damages.
Compensatory damages will be governed by the law that would otherwise apply to damages in the absence of the application of the Montreal Convention, but, in no event will the Montreal Convention include compensation for pure emotional distress without physical injury. Survivors of the Jamaica crash who did not suffer physical injuries, but who are suffering from debilitating conditions like post traumatic stress disorder (PTSD), will have a legal hurdle in their way in order to be fully compensated under the Montreal Convention.
Although PTSD does cause physical injury to the brain, the majority rule is that any physical injury to the brain is caused by the terror and emotional distress, as opposed to direct physical injury caused by the event itself. In other words, under this analysis, the emotional distress is the cause of the injury, instead of the injury causing the emotional distress, and therefore not recoverable. This makes as much sense as saying that luggage falling on one during the airplane’s erratic flight, not the pilot’s negligence, was the cause of that passenger’s injury.
Consequently, air carriers usually contend that, for instance, PTSD, standing alone, may not currently be compensable under the Montreal Convention.
We believe the better analysis is to deem a physical injury as a threshold matter, where once the physical injury is established, all emotional distress from both the horror of the event and from the physical injury is compensable, just as it would be under most state laws applicable to domestic flights with international stops. We are working tirelessly to make this the applicable universal standard under the Convention.
In the Supreme Court case controlling this issue, an Eastern Airlines aircraft lost power in all engines over the ocean on May 5, 1983. The aircraft, on a flight between Miami and the Bahamas, almost hit the water before the flight crew restarted one of the engines. The plane limped back to the airport. No one suffered physical injury, however, but lawsuits were filed claiming the emotional distress (anxiety) of not knowing whether the aircraft would make it back to the airport. The Court held that, under the Convention, emotional distress in the absence of physical injury is not compensable.
Rules like this are actually relics of a past era before science and medicine taught us about emotional injuries, and stem from judges’ mistrust and belief that such injuries are easily faked. We now know better, and this judge-made rule must, and can be, changed.
Seek Legal Counsel
Survivors of those killed or passengers injured in international aviation accidents like the American Airlines Jamaican incident should consult experienced aviation lawyers to determine whether the Montreal Convention applies to their potential claims, or whether other international or domestic law might come into play. Aviation law is complicated and it is advisable to seek the advice of skilled and knowledgeable attorneys with experience handling aviation disaster cases.