CASE ANALYSIS 4
Tomm.
Aviation_Law_Ch_82020_.pptChapter Eight
Airline Liability
Chapter Eight
Airline Liability
- General levels of liability and risk management apply to domestic airline service
- A higher duty of care (highest degree of care) is imposed upon air carriers
- Legal relationship between air carriers and international passengers is governed by
Unique body of law
Montreal Convention
Airline Liability
- Liability for passenger injury varies
Depending upon whether a passenger is traveling
On a purely domestic ticket, or
An international ticket, or
Partly international ticket
Airline Liability
to Domestic Passengers
- Domestic passenger
Origin/destination within the same sovereign state
Planned route does not include any foreign stops
- Common carriage must be determined in cases of liability
Holding out to the public to:
Carry for hire
Charge a uniform rate
All persons (or cargo)
- Tariff, total agreement between airline and passenger/cargo shipper
Airline Liability
to Domestic Passengers
- Common carriage
Was the price paid a standard price
Demands airlines exercise “highest degree of care”
Greatest degree of care and foresight possible, to
Ensure passengers’ safe conveyance
- From the time a passenger
Begins the process of boarding
Until arriving at a safe place within the terminal
Airline Liability
to Domestic Passengers
- Was the price negotiated?
Contract carriage
Charter
Ordinary degree of care (negligence)
A duty to be reasonably careful
A failure to be reasonably careful
The proximate cause of
Injury to another person or property
Airline Liability
to Domestic Passengers
- Assumption of Risk
Not available to air carriers
Courts have determined that
Statistical evidence suggests air travel is the safest means of travel
Passengers have not accepted some additional “known risks” associated with air transportation
Airline Liability
to Domestic Passengers
- Risk Management Tool-Tariffs
Air carriers may limit their liability
Impose reasonable prerequisites and timetables
Affecting passenger litigation
Terms and conditions of the contract to transport
Includes the price charged
Airline Liability
to Domestic Passengers
- Risk Management Tool-Tariff
Limits on Liability
Loss or destruction of baggage or shipped cargo
Prohibited from placing a dollar value on death or injury
Airline Liability
to Domestic Passengers
- Risk Management Tool-Tariff
Private Statues of Limitation
Time limits established for passengers or shippers
To notify the airline in writing and file suit
Tariffs may impose different criteria than is otherwise provided
Courts typically support Tariff criteria
Airline Liability
to International Passengers
- Passenger ticket shows:
Origin in one country and destination in another
Origin and destination in one country, but
Planned intermediate stop in a different country
- Planned route establishes whether the travel is domestic or international
Airline Liability
to International Passengers
Warsaw Convention
- Initial legal relationship between airlines and international passengers
- The Convention for the Unification of Certain Rules Relating to International Transportation by Air
- Final version was agreed to in 1929 at a time when:
International air travel needed aide and protection
Not safe and not comfortable
Airline Liability
to International Passengers
Warsaw Convention
- Protecting and promoting infant international air transport
Protect against catastrophic loss due to an accident
Promote airline safety
Promote availability of liability insurance
Provide uniform T&C between all transportation means
Provide framework of uniform law
Airline Liability
to International Passengers
Warsaw Convention-final version
Framework for international uniform law
Jurisdiction, passenger may choose: national domicile of the airline, airline’s principal place of business, nation where the ticket was purchased, nation of destination
Choice of law, where the case is tried
Statue of Limitation, 2-years from actual or intended date of conclusion of the trip
Airline Liability
to International Passengers
Warsaw Convention-final version
Uniform T&C
Passenger ticket and cargo waybill
Similar to other means of transportation
Promote Safety-strict liability for injury or death
Promote availability of liability insurance
Limit liability for injury or death to $8,000
Limit liability for loss/destruction of cargo to $16.5/Kg
Airline Liability
to International Passengers
Warsaw Convention-final version
- Controversy over limit of liability continued from 1929 until Montreal Agreement (1965)
International flights “touching” the US
Airlines were strictly liable for injury or death
Up to $75,000 per passenger
Airline Liability
to International Passengers
Liability for International Cargo
- Five defenses to cargo claims
All possible measures, due diligence can be proven
Pilot/Navigational error, protects airlines from liability
Shipper’s Contributory Negligence, poor packaging
Act of God (tornado), War (shot down), or State (seized)
Nature of the Goods, spoilage of perishable goods
Airline Liability
to International Passengers
Notice
- Ticket/air waybill delivered in a reasonable time
- Provisions of the treaty applied to the flight
Notice Must Be Readable: 10-point font, quality paper and ink, excellent printing press
Delivery in a Timely and Proper Manner, reschedule travel
Consequences of Inadequate Notice, no limits and five defenses would not apply
Airline Liability
to International Passengers
Punitive Damages under the Warsaw Convention
- Willful misconduct of the airline established strict liability, without artificial limits
- Cargo claims were not limited to $16.5/Kg
- Five defenses did not apply
- As amended by Montreal Agreement, airlines were liable in the event of hijacking or terrorist attacks
Airline Liability
to International Passengers
Other Liabilities under the Warsaw Convention
- From/To airline responsibility
Leaving a safe place within the terminal of origin
Reaching a safe place within the terminal of destination
- Governs only responsibility of an airline to its international passengers
- Flights with a mixture of domestic and international flights have different responsibilities, respectively
Airline Liability
to International Passengers
The Montreal Convention of 1999-Modernizing Warsaw
Personal injury through strict liability 100,000 Special Drawing Rights (SDR) ($138,000) varies
No limit on compensatory damages, willful misconduct goes away
Punitive damages are precluded
Airline Liability
to International Passengers
The Montreal Convention of 1999-Modernizing Warsaw
Electronic ticketing/air waybills, notice requirements go away
Cargo liability 17 SDR/Kg
Airlines liable for delaying passengers/baggage
For code sharing flights, passenger may recover from either carrier
Airline Liability
to International Passengers
The Montreal Convention of 1999-Modernizing Warsaw
Five defenses go away, replaced by:
Inherent defect (nature of the goods)
Defective packaging by someone other than air carrier
Act of war or armed conflict
Act of public authority (damage as a result of inspection)
Airline Liability
to International Passengers
The Montreal Convention of 1999-Modernizing Warsaw
Passenger’s principal nation of residence where suit may be brought
Airlines must make advanced payments to meet economic needs of victims/families
Airlines may agree to higher limits
Airline Liability
to International Passengers
The Montreal Convention of 1999-Modernizing Warsaw-as forecasted
- Minimal litigation over loss, damage, destruction of cargo
- Minimal litigation to recover full compensatory damages for injury or death
- Airlines meet their compensatory obligations
- Suits are brought predominantly in-home countries
