We are sometimes asked about the application of the Montreal Convention to personal injury cases involving air travel, particularly with our air carrier clients. This article is a short primer on the Convention and a checklist of considerations for our aviation clients. Please note, this article does not include all the nuances of the Convention and does not address issues with baggage.
The Montreal Convention is a Treaty that provides an Exclusive Remedy:
The U.S. Senate ratified the Convention for the Unification of Certain Rules for International Carriage by Air (a/k/a “Montreal Convention”) on July 31, 2003. A ratified treaty in the U.S. becomes the “supreme law of the land.” Therefore, in each case, the Court must determine whether a plaintiff’s claims fall within the scope of the Montreal Convention, and if so, whether the plaintiff’s claims are timely to provide any remedy.
Importantly, the Montreal Convention provides, “[i]n the carriage of passengers…any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention…” Montreal Convention, Art. 29 (emphasis added).
Thus, the Montreal Convention is the exclusive means for recovery of damages suffered by a plaintiff in the course of international air travel and preempts all state law claims. In the El Al Israel Airlines, Ltd. case, the court explained specifically that recovery for personal injury suffered on board an aircraft or in the course of embarking or disembarking, “if not allowed under the Montreal Convention, is not available at all.” Also importantly, the Montreal Convention does not allow recovery for punitive, exemplary or other non-compensatory damages and has caps on certain damages recoverable.
The Montreal Convention applies to International Carriage:
“International carriage” generally means air travel where the place of departure and the place of destination (regardless of lay-over locations), are situated within the territories of two States-Parties. It specifically applies to round-trip tickets where the originating State is a signatory to the Montreal Convention, even if the location where the passenger stopped was not a signatory: In other words, the Convention would apply to a round-trip from Charlotte, N.C. (the U.S. is a signatory State) to St. Lucia (a non-signatory State) and back. However, the Convention would not apply to only domestic air travel within the U.S.
Montreal Convention Article 17 – Death and Injury to Passengers
Under the Montreal Convention, the air carrier is liable for damages sustained in case of death or bodily injury of a passenger only where an “accident” “caused” the death or injury that took place “on board the aircraft” or in the course of any of the operations of “embarking or disembarking.”
An “accident” is defined as an unexpected or unusual event or happening that is external to the passenger. The language is specific to exclude events that occur in the usual course of air travel as well as idiopathic internal conditions that might ail a passenger. For example, an injury caused by an “inoperable escalator” was not an unusual or unexpected condition and did not constitute an accident. However, being pricked by a hypodermic needle in a seatback pocket was sufficiently unexpected and unusual to constitute an accident. Proximate cause between the “accident” and the bodily injury or death must also be proven.
Additionally, the accident must have taken place onboard the aircraft or in the course of embarking or disembarking the aircraft. To determine applicability to embarking the aircraft, the courts take into consideration factors such as: (1) the activity of the passenger at the time of the accident; (2) the restrictions, if any, on the passengers’ movement (for example, in the terminal); (3) the imminence of actual boarding; and (4) the physical proximity of the passenger to the gate. As for disembarking, the Courts look at similar factors such as: (1) the passenger’s activity at the time of the injury; (2) where the passenger was located; and (3) the extent to which the carrier was exercising control over the passenger at the moment of injury.
The Convention has a two-year Statute of Limitations
Any claim to which the Montreal Convention applies is subject to the its two-year statute of limitations. Montreal Convention, Art. 35, § 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.”
As this statute of limitations varies from some actions brought in state courts for personal injury or death, this can be a significant issue in evaluating whether a plaintiff’s claim is recoverable.
Montreal Convention Checklist:
- Was the flight intended to be International Carriage?
- Was there a defined “Accident” to the passenger?
- Did such accident “proximately cause” the bodily injury or death claimed?
- Was the passenger on the aircraft or in the process of embarking or disembarking?
- Was the action filed within two-years from the date the claimant arrived at the destination, when the passenger should have arrived, or when was the carriage stopped?
 See 149 Cong. Rec. 20, 813 (2003); U.S. Const. Art. VI, Cl. 2.
 Smith-Ligpn v. British Airways Worldwide, 2012 WL 1382468, at *2 (E.D. Pa. Apr. 20, 2012).
 El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 161, 119 S. Ct. 662, 664 (1999).
 Article 29, Montreal Convention.
 In re Air Crash at Lexington, KY, August 27, 2006, 501 F. Supp. 2d 902 (E.D. Ky. 2007).
 Doe v. Etihad Airways, P.J.S.C., 870 F.3d 406 (6th Cir. 2017), cert. denied, 138 S. Ct. 1548, 200 L. Ed. 2d 741 (2018).
 Ugaz v. Am. Airlines, Inc., 576 F. Supp. 2d 1354, 1361 (S.D. Fla. 2008).
 Doe v. Etihad Airways, P.J.S.C., 870 F.3d 406 (6th Cir. 2017).
 Day v. Trans World Airlines, Inc., 528 F.2d 31, 33–34 (2d Cir. 1975).
 Fedelich v. American Airlines, 724 F. Supp. 2d 274 (D.P.R. 2010).