Abstract:
Article 17 of both the Warsaw Convention and
the Montreal Convention combine to hold airlines absolutely liable for any
accident in which a passenger suffers death or injury if the “accident” occurs
on board an aircraft or while the passenger is “in the course of any of the
operations of embarking or disembarking.” Both conventions however do not offer
a definition of “accident” in their respective treaties thereby leading to a
lack of uniformity by Courts in defining it. The article focused on the adopted meaning of “accident” in
both conventions by the courts globally and its consequence on airlines
liability.
Introduction:
Discussions about contracts of carriage by air
often raise questions about the issue of airlines liability for injuries
sustained by passengers during carriage by air. Article 17 of both the Warsaw
Convention[1] and the Montreal Convention[2] combine to hold airlines
absolutely liable for any accident in which a passenger suffers death or injury
if the “accident” occurs on board an aircraft or while the passenger is “in the
course of any of the operations of embarking or disembarking.” The Montreal Convention is adopted into
Nigerian law by Section 50 of the Civil Aviation Act[3] and from the date of
commencement of the Act, the Montreal Convention became the basis for
establishing an airline’s liability for both international and
non-international carriage on flights in Nigeria. The underlying
effect of the Montreal Convention is that it is preemptive of claims arising
under national laws in contracts of air transportation in Nigeria. The
implication being that an aggrieved passenger cannot go outside of the
Convention to find a cause of action in an aviation claim.[4] This
essay will thus examine the disparate meaning of “accident” in both conventions
and its consequence on airlines liability.
What is an
“Accident”?
The interpretation of the term “accident”
in Article 17 of both the Warsaw Convention and Montreal Convention has presented
some difficulties traceable to the failure of the drafters of both Conventions
to define the term in the respective treaties. The absence of definition has
led to lack of uniformity in the definition of “accident” by the Courts. However,
many Courts follow the lead of the United States’ Supreme Court in Air France
v. Saks[5] where the term “accident” was construed to refer to an “unexpected
or unusual event or happening that is external to the passenger,” and not to “the passenger’s own
internal reaction to the usual, normal, and expected operation of the aircraft.” In that case, the court explained
that “any injury is the product of a chain of causes, and we
require only that the passenger be able to prove that some link in the chain
was an unusual or unexpected event external to the passenger.” Consequently,
this has become the established and universally accepted definition of “accident”
of Article 17 and, subsequently, adopted and followed by the courts in other
state parties to the Montreal Convention.
Article
17 holds airlines only liable for “accidents”, meaning not all injuries
occurring on a flight will result in a violation of both conventions. Article
17 refers to an accident which caused the passenger's injury, and not
to an accident which is the passenger's injury. The text thus implies
that, however "accident" is defined, it is the cause of the
injury that must satisfy the definition, rather than the occurrence of the
injury alone. Furthermore, the injury must have been sustained during the normal operations of the aircraft and the
knowledge or complicity of the crew members in the events surrounding the
alleged accident that led to the injury must be established.[6] Thus the voluntary act of a person other than
the passenger which cause harm to the passenger is the critical factor in
determining whether the injury was an “accident” within the definition of
Article 17. The causation event must be external to the passenger to ground a
cause of action.[7]
An
“accident” under Article 17 must arise from “such risks that are characteristic
of air travel” thus where the putative
injuries were caused by torts committed by fellow passengers and not related to
the operation of the aircraft it will not apply. For instance, in Beverley Anne Barclay v British
Airways PLC,[8] an
injury sustained from a hot coffee spillage by a crew member – an event,
unexpected by the passenger, and arising from a source external to the Claimant,
was held to meet the definition of ‘accident’[9] while in Mansoor v. Air France KLM Airlines,[10] Plaintiff passenger sued airline after tripping and falling while
onboard the aircraft.[11] The
court held this to be an “accident” because Plaintiff “tripped and fell as a
result of a hazard in the walkway onboard the aircraft” whereas in Stone v. Continental Airlines, Inc.,[12]
the Court held that an injury caused by being punched without provocation by
another passenger is not an accident because it was not “derived from air
travel”. Also in Price v. British Airways,[13] injury caused by a
fistfight between two passengers was held not be an “accident” because “a
fracas is not a characteristic risk of air travel nor may carriers easily guard
against such a risk through the employment of protective security measures.” However,
in other instances of fisticuffs the airline has been found liable because they
served alcoholic beverages.[14] In other words, an assault by a fellow passenger would not constitute
an Article 17 accident absent some causal role of airline personnel. It must
be shown that the
crew had a “practical ability to influence” the circumstances which
brought about the injury causing event. The onus is on the passenger to
establish that the “event or happening” was clearly related to
aviation operations as non-aviation related causes are not relevant. Aviation
operations are as articulated in Fulop v. Malev Hungarian Airlines, Inc.[15] i.e.:
·
the normal operations
of the aircraft;
· the knowledge or
complicity of the crew members in the events surrounding the alleged accident;
·
the acts of fellow passengers
whether intentional or not;
·
the acts of third
persons who are not crew or passengers, e.g., hijackers and terrorists;
·
the location of the
occurrence in the continuum of the air travel;
·
the role, condition
and reaction of the complainant in connection with the occurrence at issue and;
·
the kinds of risks
inherent in air travel.
Bodily
Injury:
An
airline cannot be liable under Article 17 when an “accident has not caused the
passenger to suffer death, physical injury or manifestation of physical injury.”[16] Article 17 also precludes compensation for
psychological injuries caused by such an accident, where they are not linked to
any bodily injury. In Jack v Trans World Airlines Inc.,[17] the
Court held that the "mental injury must be
proximate and flow from the physical injury caused by the accident." Likewise,
the House of Lords in Morris v KLM,[18] while agreeing that the passengers can only recover
damages for physical injuries, held that if the mental injury causes adverse
physical symptoms such as stroke, miscarriages or peptic ulcers, then the
threshold of the requirement of physical injuries must have been satisfied.
Thus according to the House of Lord’s decision, it suggests that passengers can
only recover damages for mental or emotional injuries provided they manifest in
physical injuries.
For clarity, in order to recover
damages for injury sustained aboard an aircraft against the carrier, a
passenger must establish that:
·
an accident occurred;
·
that he suffered death or bodily injury;
·
that the accident occurred on board the aircraft
when it was in operation or in the process of embarking or disembarking; and
·
that the airline could have taken steps to avoid
the accident but was negligent or acted with reckless indifference.
These ingredients must be established before liability can be
established against a carrier in a claim for personal injury failing which a
claim must fail. In a nutshell, the modern damages format of the Montreal
Convention predicates carrier liability solely on the occurrence of an accident
within the meaning of Article 17 of the Montreal Convention.[19]
Conclusion:
Liability for injury
sustained on a flight arises for the aircraft carrier only in the circumstances
set out in Article 17 of the Montreal Convention and the presumption
of liability therein does not rest upon a mere “occurrence” of an injury;
rather, the passenger's injury must be caused by an “accident” and it must
result from a bodily injury occurring on board the aircraft when it was in operation
or in the process of embarking or disembarking. Anything short of this will not
suffice for an aviation claim. A Plaintiff will fail if it fails to establish that an
injury was not the result of anything unusual or abnormal with respect to the
operation or condition of the aircraft and if it is not a bodily injury.
[1] Convention for the
Unification of Certain Rules Relating to International Carriage by Air, Signed
at Warsaw on 12 October 1929 (Warsaw
Convention).
[2]
Convention for
the Unification of Certain Rules for International Carriage by Air (Montreal, 28 May 1999) (Montreal Convention)
[3]
Laws of the Federation of Nigeria, 2022.
[4] See: Emirate Airline v. Tochukwu Aforka & Anor. (2014) LPELR-22686(CA); Harka Air Services Ltd. v. Keazor [2011] All FWLR (Pt.591) 1402).
[5] 470 U.S. 392 (1985).
[6] Fulop v Malev Hungarian Airlines, Inc., 175 F. SUPP.
651 (SDNY 2001).
[7] See the decision of the UK
Court of Appeal in the case: In re Deep Vein Thrombosis and Air Travel Group
Litigation [2004] QB 234 where it was held that, for the accident, there must
be the external event with the adverse effect on the passenger.
[8]
[2008] EWCA Civ 1419.
[9]
A slip and fall on snow covered airline steps
in Carmelo Labbadia -v- Alitalia (Societa Aerea Italiana S.p.A) [2019] EWHC
2103 (QB) was held to constitute an accident within the meaning of Article 17
of the Montreal Convention 1999.
[10]
(S.D. Cal. 2008) 2008 WL 4748166.
[11]
In Balani
v Lufthansa German. Airlines Corp., 2010 ONSC 3003, the judge found that the carrier’s failure to provide
a wheelchair, an event that occurred on board or in the course of disembarking,
formed a link in the chain of causation of the passenger’s injuries later
sustained in the terminal, and was therefore an Article 17 accident.
[12] 905
F. Supp. 823 (D. Haw. 1995)
[13]
91 Civ. 4947 (JFK), (S.D.N.Y. Jul. 6, 1992)
[14]
Langadinos v. American Airlines, Inc. (1st Cir.
2000) 199 F.3d 68
[15]
175 F. Supp. 651 (SDNY 2001).
[16] Eastern Airlines v
Floyd 499 US 530 (1991).
[17] 854 F Supp. 654 (ND Cal. 1994).
[18]
[2000] UKHL 7.
[19]
Wallace v. Korean Air (2d Cir. 2000) 214 F.3d 293,
297.
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