Masterscriptie privaatrecht
Passenger recovery for internal injury under
Article 17 of the Montreal Convention
Julia Zoetemeijer
Student nummer: 5927439
Begeleider: Mr. H.P.D. den Teuling
2
Index
Introduction
Page 3Chapter 1: Liability system of the Montreal Convention
1.1 Passenger’s rights under the Warsaw and Montreal Convention Page 5
1.2 Applicability of the Montreal Convention Page 8
1.3 Jurisdiction and forum shopping Page 9
1.4 Exclusivity under the Convention Page 12
Chapter 2: Common law regarding ‘accident’ under Article
17 of the Convention
2.1 Article 17: entitlement to recovery in case of liability of the carrier Page 17
2.2 Uniform application of the Montreal Convention Page 18
2.3 Common law - definition of ‘accident’ under Article 17 Page 20
2.4 Olympic Airways v. Husain case 2004 - liability in case of negligence Page 24
2.5 Liability in case of DVT Page 26
2.6 Liability in case of an anaphylactic shock Page 28
2.7 Duty of care with regard to medical conditions Page 29
Chapter 3: European (civil law) case law regarding ‘accident’ under Article
17 of the Convention
3.1 European Regulation Page 34
3.2 Applicable law within the European Union Page 34
3.2 KLM case 2014 – liability in case of an anaphylactic shock Page 35
3.3 German case law – liability in case of an allergy to wet towels Page 39
3.4 French lase law - liability in case of DVT or a fall Page 40
Summary:
Page 43
Conclusion:
Page 453
Introduction
International air law has been an issue of international concern since the Wright brothers carried out the first motorized flight in 1903 with a length of 61 meters and a time frame of 12 seconds.1
This event marked a changing of times; both the first airplane and the issue of international air law took flight. At this time over three billion passengers travel by air every year, which is currently the safest form of transport.2 Statistics show that even though the number of passengers on a flight is higher than it has ever been before3, the number of fatal accidents has
been decreasing since the 1950’s.4 Nevertheless, safety on board of an airplane and
subsequent issues regarding liability provide a never-ending topic of debate.
The Montreal Convention for the unification of certain rules for international carriage by air was created in order to provide an international and uniform liability system with regard to liability in case of bodily injury and goods. The most important article with regard to liability in case of death or bodily injury is Article 17 under the Convention, which becomes relevant after it has been determined that there is an international carriage to which the convention applies. According to this article, the carrier is liable for damage sustained in case of death or bodily injury of a passenger if the accident, which caused the death or injury, took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Therefore, in order to successfully claim damages under the Montreal Convention 19995, an accident under Article 17 must have occurred. One issue arising is what types of bodily injury fall within the scope of ‘accident’ under Article 17.
With regard to the Montreal Convention internal injury relates to the passengers “own internal reaction to the usual, normal and expected operation of the aircraft”.6 The difference between external and internal injury is, however, sometimes hard to distinguish.7 A clear example of internal injury is if a passenger falls on board of an airplane after fainting. Often, in case of
1 P. Zeuner, The law of international carriage by air, Major legal instruments governing private international
air law and their liability regimes, Norderstedt: Books on demand, 2008, p. 1
2 International Air Transport Association, The Montreal Convention 1999 (MC 99):
http://www.iata.org/policy/pages/mc99.aspx
3 T. Wagemakers, M Dekker, ‘Op Schiphol is het vandaag de drukste dag van het jaar. En na de derde vliegramp
in een week rijst de vraag weer: hoe veilig is vliegen?’ NRC Handelsblad, juli 25 2014.
4 Aviation Safety Network, Fatal Airliner (14+ passengers) hull-loss accidents:
http://aviation-safety.net/statistics/period/stats.php?cat=A1
5
Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999
6
US Supreme Court, 4 March 1985, 470 U.S. 392 (Air France v. Saks) 406
7
B. F. Havel, G. S. Sanchez, The Principles and Practice of International Aviation Law, New York: Cambridge University Press, 2014, p. 284
4
internal injury, the passenger suffers from a pre-existing medical condition, such as a severe allergy or a heart condition.
The question is whether internal injury is recoverable under the Convention. An interesting issue for example is, whether a carrier is liable for the injuries suffered under Article 17 in case a passenger suffers from a heart attack during a flight. The answer to this question will most likely be answered in the negative. However, the answer to this question might be different in case the flight crew fails to deliver adequate medical assistance. It is therefore relevant whether the flight attendant crew has a responsibility for passengers with a pre-medical condition, and if so, whether this duty of care extents to actions or also includes omissions.
In this thesis, I will specifically research whether internal injury can be qualified as an accident in case of actions or negligence by the flight attendant crew. The question I will examine is: Is it possible for a passenger to recover for injury under Article 17 of the Montreal Convention in case of bodily injury that is internal to the passenger?
To answer this question I will explore the following points. First, it is important to understand the liability system of the Montreal Convention. Therefore, chapter one will provide information on the liability system, jurisdiction and exclusivity of the Convention.
Secondly, it is important to define how the term “accident” under the Convention has to be interpreted. The Montreal Convention is an international treaty, which has to be applied in a uniform manner. However, case law from the United States of America is considered to be leading with regard to the definition of accident, and the principles flowing from U.S. case law have been applied to international air law cases by numerous courts around the world.8 Additionally, the Convention was drafted in English. Common law is therefore regarded leading with regard to interpretation of the Montreal Convention.9 Therefore, in chapter two, common law with regard to the definition of ‘accident’ will be examined by discussing American, Australian and United Kingdom case law regarding Article 17 under the Convention.
Thirdly, in chapter three the interpretation of Article 17 under common law and the Montreal Convention by civil law courts, such as Dutch, German and French courts, will be discussed. Finally, chapter four will provide a summary followed by a conclusion on whether internal injury is recoverable under the Convention.
8
US Supreme Court, 4 March 1985, 470 U.S. 392 (Air France v. Saks)
9
I Koning, ‘Turkish Airlines de Primeur? Een beschouwing van de aansprakelijkheid van de luchtvervoerder naar aanleiding van de Turkish Airlines crash’, TVR 2009/02
5
Chapter 1: The liability system of the Montreal Convention
1.1 Passenger’s rights regarding liability under the Warsaw and Montreal Convention
During the second part of the nineteenth century international trade became increasingly important, which caused necessity for uniform international rules.10 While issues regarding aviation law concerned freedom of air at first, more complicated issues such as carrier liability became relevant. Prior to the Montreal Convention the Warsaw Convention 192911 created a legal framework concerning liability on international air carriage, and was adopted by numerous countries around the world.12 The main aim of the Warsaw Convention was to protect carriers from high claims in case of death or injury of a passenger. Liability for bodily injury or death under the unamended Warsaw Convention was therefore limited to a relatively low amount of 125.000 francs.13 Furthermore, the Convention was established to prevent carriers from excluding their liability regarding bodily injury or death.14 Another objective of the Convention was to regulate and protect transportation of goods in a uniform manner.15 Under the Warsaw Convention the carrier has the obligation to deliver passenger(s) and good(s) to the place of destination without damage. If the carrier fails to do so, he can liable for the damage that is caused to the passenger(s) or the good(s).
The relevant article under the Warsaw Convention regarding carrier liability in case of bodily injury or death is Article 17: “The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking”.
In order to successfully claim damages for bodily injury under the Warsaw, the deciding
judge has to determine whether an accident and bodily injury under Article 17 of the Convention did indeed occur and moreover, whether there is causation between the accident and the bodily injury. The passenger must provide proof that the requirements of the elements
10 S.E van Hall, M.L. Hendrikse, N.J. Margretson, H.P.D. den Teuling, G.J.P de Vries, Capita Internationaal
Handelsrecht, Zutphen: Uitgeverij Paris, 2013 p. 29
11 Convention for the Unification of Certain Rules relating to International Transport by Air, 12 October 1929 12 T. J. Whalen, ‘The New Warsaw Convention: The Montreal Convention’, Air and Space LAW, 2000, Vol.
XXV, no. 1.
13 G.N. Tompkins, Liability Rules Applicable to International Air Transportation As Developed By The Courts
In The United States, Alphen aan den Rijn: Kluwer Law International 2010, p. 1
14
D.P.C de Rooy, ‘A Passenger has become sick, is there a lawyer on board?’ TVR, 2013/A, Uitgeverij Paris, 2013, p. 122
15
T.A. Weigand, Accident, Exclusivity, and Passenger Dusturbance Under the Warsaw Convention, American University International Law Review, 2001 Volume 16 Issue 4
6
under Article 17 are fulfilled.16 Therefore, the passenger must prove that a 1) accident has occurred which 2) caused 3) bodily injury.17
When it has been determined by the deciding judge that an accident within the scope of Article 17 has occurred, a reversed burden of proof is applicable; 18 19 the carrier is liable under Article 17 for death or bodily injury unless he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures (force majeure).20 This fault-based liability of the carrier is capped, which means that it is only applicable up to the amount of 125.000 francs.21 The passenger can only break through the liability cap if the damage is caused by the willful misconduct of the carrier or by such default on his part as is considered to be equivalent to willful misconduct.22
Following the Warsaw Convention several private international law conventions and intercarrier agreements entered into force. The private international law conventions consisted of the The Hague Protocol 1955, The Guadalajara Convention 1961 and the Montreal
Protocol No. 4 1975. 23 24 The Warsaw Convention needed to be modernized and
consolidated.25 The objective was to: “merge the relevant texts of the six Warsaw instruments then in force into one instrument, and to include the necessary modernizing features”.26 The long awaited Montreal Convention entered into force on November 4 2003 and applies to “all international carriage of persons, luggage or goods performed by aircraft for reward”.27 Even though the elements of Article 17 under the Montreal Convention remained the same as they where under Article 17 of the Warsaw Convention, The Montreal Convention is rather
16 G.N. Tompkins, Liability Rules Applicable to International Air Transportation As Developed By The Courts
In The United States, Alphen aan den Rijn: Kluwer Law International 2010, p. 138
17 P.S. Dempsey, Accidents & Injuries In Air Law: The Clash Of The Titans, Annals Of Air & Space Law, 2009,
Vol. XXXIV
18 I Koning, Aansprakelijkheid in het luchtvervoer (dissertatie), Uitgeverij Paris: stad 2007 p. 27 19 Note: Under common and civil law the burden of proof lies with the accuser while under the Warsaw
Convention, a reversed burden of proof is applicable:
I Koning, ‘Turkish Airlines de Primeur? Een beschouwing van de aansprakelijkheid van de luchtvervoerder naar aanleiding van de Turkish Airlines crash’, TVR 2009/02
20
Article 20 of the Convention for the Unification of Certain Rules relating to International Transport by Air, 12 October 1929 (Warsaw Convention)
21
Note: the liability cap has been amended (amongst other agreements) by The Hague Protocol 1955
22
Article 25 of the Convention for the Unification of Certain Rules relating to International Transport by Air, 12 October 1929 (Warsaw Convention)
23
G.N. Tompkins, Liability Rules Applicable to International Air Transportation As Developed By The Courts
In The United States, Alphen aan den Rijn: Kluwer Law International 2010, p. 2
24 Note: because of the fact that these conventions do not affect the subject of this thesis I will not further
elaborate on these agreements.
25 Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999 26 L. Weber, ‘Recent Developments in International Air Law’, Air and Space Law, 2004, Vol.XXIX 4-5 27
Article 1 of the Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999 (Montreal Convention)
7
different from the Warsaw Convention with regard to liability system and limits in case of death and bodily injury.28
Similar to the Warsaw Convention, the passenger needs to prove that the requirements of the elements under Article 17 are fulfilled. However, unlike the Warsaw Convention, the Montreal Convention introduced a two-tiered system for recovery.29 When the deciding judge has determined that the requirements of Article 17 have been satisfied, carriers are strictly liable under the Convention. This means that carriers are liable for damages, regardless of the fault of the carrier.30 The carrier shall be entirely or partially exonerated from its liability under Article 17 if the carrier can prove however, that:
‘The damage was caused or contributed by the negligence or other wrongful act or omission of the passenger or the person claiming damages through the passenger’
The strict liability is capped, which entails that it is only applicable reaching up to the amount of 100,000 SDR.31
The carrier can liable for the amount exceeding 100.000 SDR, which cannot be limited or excluded by the carrier.32 A reversed burden of proof is applicable. The liability of the carrier is a presumptive liability, which entails that the carrier is liable unless the carrier can prove that:
“The damage was not caused by the negligence or other wrongful act; or
Such damage was due solely to the negligence or other wrongful act or omission of a third party”.33
In order to prevent liability exceeding 100.000 SDR, the carrier therefore needs to prove that the damage was not caused by negligence by proving that a) there was no duty of care applicable, b) he did not violate this duty of care, or; c) there is no causality between the
28 H. Manuel, ‘The Montreal Convention in European Context: a passengers paradise?’ Conference paper
presented at IFFTA Europe, March 2008
29 T.A. Weigand, Accident, Exclusivity, and Passenger Disturbances Under the Warsaw Convention, American
University International Law Review, 2001 Volume 16 Issue 4
30 Article 20 of the Convention for the Unification of Certain Rules for International Carriage by Air, 28 May
1999 (Montreal Convention)
31
Note: Special Drawing Rights is an international reserve asset created by the IMF. The value of SDR is determined by several financial currencies. 1 SDR is equivalent to: 1,25 euro or 1,40 dollar (15th of June 2015) Source: http://www.imf.org/external/np/fin/data/rms_five.aspx#fn2
32
Article 21 paragraph 1 of the Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999 (Montreal Convention)
33 Article 21 paragraph 2 of the of the Convention for the Unification of Certain Rules for International Carriage
8
violation of the duty of care and the damage of the passenger.34 Whether the carrier has acted in a negligent manner has to be determined by the deciding judge according to applicable domestic law.35
1.2 Applicability of the Montreal Convention
Due to the fact that the Warsaw Convention still applies alongside the Montreal Convention for an indefinite period of time, both Conventions can apply to the contracting parties in case of international carriage. Currently 152 states have adopted the Warsaw Convention, which is 80% of the total of 191 ICAO contracting states.36 In addition 111 parties (110 states and the European Union) have adopted the Montreal Convention, which consists of 58% of the total
of 191 ICAO contracting states.37 Whether the Warsaw Convention or the Montreal
Convention applies depends on whether both parties signed either the Warsaw or Montreal Convention. If both states signed the Warsaw and the Montreal Convention, the Montreal Convention must be applied to the contract of international carriage between the carrier and passenger. According to Article 55 of the Montreal Convention it will ‘prevail over any rules’ which may otherwise apply to international carriage by air between states being commonly parties to Montreal and to any of the other instruments of the Warsaw system. Therefore, if both parties signed the Montreal Convention, the Montreal Convention will prevail over the Warsaw Convention.38 39
It is, however, important to note that it is not relevant whether the Warsaw or Montreal Convention applicable when applying Article 17. There were only “stylistic alterations” made
34 I Koning, ‘Turkish Airlines de Primeur? Een beschouwing van de aansprakelijkheid van de luchtvervoerder
naar aanleiding van de Turkish Airlines crash’, TVR 2009/02
35 Nelson J in Queens Bench Division, 20 December 2002 EWHC 2825 (The Deep Vein Thrombosis & Air
Travel Group Litigation)
36 International Civil Aviation Organization, Contracting parties to the Convention for the Unification of Certain
Rules relating to International Transport by Air signed on 12 October 1929
http://www.icao.int/secretariat/legal/List%20of%20Parties/WC-HP_EN.pdf
37 International Civil Aviation Organization, Convention for the Unification of Certain Rules for International
Carriage by Air signed on 28 May 1999
http://www.icao.int/secretariat/legal/List%20of%20Parties/Mtl99_EN.pdf
38
M. Hoeks, Multimodal Transport Law: The law applicable to he Multimodal Contract for the Carriage of
goods, Kluwer Law International: The Netherlands, 2010, p. 389
39 Note: even though the Warsaw Convention still applies alongside the Montreal Convention and therefore both
Conventions can be applicable case of international carriage I will only discuss the Montreal Convention because the scope of article 17 remains the same under the Montreal Convention. Additionally, most parties that are member of the Warsaw Convention are also member of the Montreal Convention (which, as stated before prevails over the Warsaw Convention) and that it is likely that most of the non-members will become a member of the Montreal Convention in the future.
9
under the Montreal Convention, the key elements remained the same.40 Therefore, while
discussing article 17 through relevant case law, I will make no distinction between these two Conventions but will refer to ‘Article 17’ in general.
The Montreal Convention is only applicable when the requirements of Article 1 of the Convention are met. According to Article 1 the Convention applies to “all international carriage of persons, baggage or cargo performed by aircraft for reward”. International carriage means carriage between two State Parties, regardless of whether there is a break in between the carriage. Therefore the place of departure and the place of destination should be situated within a State Party. In case the air carrier is a European Carrier with whom the passenger concluded an agreement Regulation (EC) no 889/2002 applies. According to Article 3 of this Regulation the Montreal Convention applies, in order to prevent applicability of the Warsaw Convention.41
1.3 Jurisdiction and forum shopping
Choice of jurisdiction is an important issue of concern within the area of international air law.42 Even though all State Parties subject to the Montreal Convention should interpret Article 17 in the same manner, there is still a difference with regard to the possibility to receive damages and the height of damages depending on which jurisdiction the passenger claims damages.
Both the Warsaw and the Montreal Convention have rules regarding jurisdiction. Article 28 of the Warsaw and Article 33 Montreal Convention both state that a passenger can claim damages:43
“Before the court of the domicile of the carrier
Before the court of the principle place of business of the carrier
Before the place where the carrier has a place of business through which the contract has been made
40 C. Bin, Das Montrealer Ubereinkommen von 1999 uber die Beforderung im Internationalen Luftverkehr,
Zeitschrift für Luft- und Weltraumrecht, 2000/49 p. 287 - 307
41 I Koning, Turkish Airlines de Primeur? Een beschouwing van de aansprakelijkheid van de luchtvervoerder
naar aanleiding van de Turkish Airlines crash, TVR 2009/02
42 S. W. Andemaiam, ‘Does the Montreal Convention of 1999 require that a notice be given to passengers?
What is the validity of a notice of choice of forum clause under Montreal 1999?’, Journal of Air Law &
Commerce, 2006 p. 251
43
Note: the word place refers to country and not to the actual ‘place’:
G.N. Tompkins, Liability Rules Applicable to International Air Transportation As Developed By The Courts In
10
Before the court at the place of destination.”44
Additionally the Montreal Convention provides a fifth jurisdiction which enables passengers who seek recovery for bodily injury, under Article 17, the possibility to claim damages in their own permanent place of residence:
“Before the court in the State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air.” 45
The drafters to the Convention added the fifth jurisdiction in order to prevent passengers being assigned to another jurisdiction than where the passenger actually lives.46 The fifth jurisdiction is the result of the effort of the United Sates of America (U.S.A). The consequence of having several forums is that a passenger can pick a court in favor of the outcome of the proceeding. Therefore, the passenger can 'cherry pick' the forum, which will have the biggest chance of success and will generate the highest financial compensation. Numerous carriers who are not based in the U.S.A. were not in favor of adding a fifth jurisdiction due to possible high rewards awarded by juries,47 as- in general-, proceeding before court in the U.S.A. will have a more favorable outcome as opposed to most European countries. Besides the advantage of a more favorable outcome, American lawyers often provide a 'no cure no pay' deal which lowers the threshold to proceed before a court. Additionally, parties cannot exclude the right of passengers to seek recovery in all five jurisdictions before the accident has happened; Article 32 of the Warsaw Convention and Article 49 of the Montreal Convention prohibit the possibility of making other agreements or arrangements regarding jurisdiction before the accident has occurred. Such an agreement or arrangement will be considered null and void.48
Just recently, American lawyers, also referred to as ‘claim cowboys’, where trying to convince plaintiffs to claim damages under the fifth jurisdiction in order to receive higher
44 Article 33 paragraph 1 of the of the Convention for the Unification of Certain Rules for International Carriage
by Air, 28 May 1999 (Montreal Convention)
45 Article 33 paragraph 2 of the of the Convention for the Unification of Certain Rules for International Carriage
by Air, 28 May 1999 (Montreal Convention)
46 I Koning, ‘Turkish Airlines de Primeur? Een beschouwing van de aansprakelijkheid van de luchtvervoerder
naar aanleiding van de Turkish Airlines crash’, TVR 2009/02
47
D. Padrhan, ‘The fifth jurisdiction under the Montreal liability Convention: wandering American or wandering everybody’, Journal of Air Law and Commerce, 2003 p. 721
48
G.N. Tompkins, Liability Rules Applicable to International Air Transportation As Developed By The Courts
11
compensation.American lawyers approached Dutch relatives of the MH1749 crash50, which caused the death of 298 (196 Dutch) passengers51, in order to claim damages before court in the U.S.A.
The possibility to seek recovery under the fifth jurisdiction is, however, not unlimited. Several conditions have to be met:52 1) the passenger must have his or her principle and permanent residence in the fifth jurisdiction at the time of the accident, 2) the carrier must operate in the fifth jurisdiction either with its own aircraft or aircraft from another carrier pursuant to a commercial agreement 53 and 3) the carrier must conduct its business in the fifth jurisdiction from “premises leased or owned by the carrier itself or by another carrier with which it had a commercial agreement”.
Because proceedings in the U.S.A. generally provide a more favorable outcome, clever lawyers often include an American plaintiff and/or an American defendant and then file a claim before an American court. This may result in a claim brought before an American court by numerous foreign plaintiffs while only several (or one) American parties are represented. If this is the case, the defendant’s lawyers can invoke the doctrine of forum non conveniens with the possible result that the court will deny the plaintiff(s) claim so that the plaintiff(s) will have to file a claim before a court in a less favorable jurisdiction. The forum non conveniens is a common law doctrine, which provides common law courts with the opportunity to deny the claim of the plaintiff in case the court considers another jurisdiction as a more adequate jurisdiction.
The forum non conveniens doctrine was first addressed within the context of international air law in the U.S.A in the Piper Aircraft v. Reyno case. This case concerned an aviation accident in Scotland, which resulted in the death of several Scottish citizens. The aircraft was manufactured in the U.S.A by Piper Aircraft Co, which led the plaintiff to claim recovery before court in the U.S.A. in order to seek (as was admitted by the plaintiff) a generous award
49 Note: The airplane crashed on the 17th of July 2014 in Ukraine
50 Schadevergoeding na vliegramp MH17: 'Verdriet om je naasten wordt niet gecompenseerd', Omroep Brabant:
http://www.omroepbrabant.nl/?news/214565962/Schadevergoeding+na+vliegramp+MH17+Verdriet+om+je+ aasten+wordtet+gecompenseerd.aspx
51 Aantal omgekomen Nederlanders MH17 naar 196, Trouw:
http://www.trouw.nl/tr/nl/31523/Vliegtuigcrash-Oekraine/article/detail/3707036/2014/07/31/Aantal omgekomen-Nederlanders-MH17-naar-196.dhtml
52
Article 33 of the Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999 (Montreal Convention)
53
Note: According to article 33 paragraph 3 sub a ‘commercial agreement’ means an agreement, other than an agency agreement, made between carriers and relating to the provision of their joint services for carriage of passengers by air:
G.N. Tompkins, Liability Rules Applicable to International Air Transportation As Developed By The Courts
12
because of the more favorable provisions regarding liability and damages. The Supreme Court acknowledged the doctrine of forum non conveniens and therefore dismissed the case stating that the Trial Court has the discretion to apply this doctrine in case another court is available and adequate and that the ruling of the court can only be reversed in case of clear abuse of discretion.54
Even though the U.S. Supreme Court has stated in several cases that a successful appeal on the doctrine of forum non conveniens is very rare, the rate of a successful appeal before a U.S. Federal Courts is fairly high.55 The aim adding the fifth jurisdiction was to prevent passengers being assigned to another jurisdiction far from where the passenger actually lives. Ironically, however, the fifth jurisdiction provides passengers with the possibility to claim damages in countries other than their home country in order to receive higher recovery for the damage they suffered.
In summary, it may be very rewarding for passengers to claim damages before court in the U.S.A. Therefore, carriers will try to get the case dismissed under the doctrine of forum non conveniens so that the plaintiff(s) will be assigned to a less favorable jurisdiction.
1.4 Exclusivity under the Convention
Besides jurisdiction, an important issue of concern within the area of international air law is whether the Montreal Convention has to be applied exclusively under the ‘exclusivity doctrine’ with regard to carrier liability. The “exclusivity doctrine” entails that the Convention is exclusively applicable with regard to liability of carriers.56 If so, this would exclude the possibility for a passenger to receive recovery for liability as founded in contract by carriage, in tort or other legal grounds under domestic regulation. This would entail that a passenger will not be entitled to recovery if the bodily injury does not fall within the scope of Article 17 under the Convention.
However, the European Union has provided European passengers with Regulations regarding several issues including compensation for delay. One of these regulations is the Regulation 261/2004.57 The Regulation provides passengers with the possibility to recover in the event of denied boarding and of cancellation or long delay of flights. The Regulation applies to
54
U.S. Supreme Court, 8 December 1981 454 U.S. 235 (Piper Aircraft v. Reyno)
55 P. S. Dempsey, ‘All along the watchtower: conveniens in international litigation’, 2011, Annals
of Air and Space Law, Volume 36 p. 3233-375
56
I. Koning, The disabling of the EC Disability Regulation: Stott c. Thomas Cook Tour operators Ltd. in the light of the exclusivity Doctrine, (2014) European Review of Private Law, volume 22, issue 4, pp. 769–786
57
Regulation (EC) 261/2004 on establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights
13
passengers who embark or disembark in a European Union Member State. In case of flying from a Third Country and disembarking in a Member State, the passenger is not entitled to recovery if the passenger has already received recovery and assistance in that Third Country.58
One of the fundamental purposes of the Convention is to create uniformity within the area of international air law. Therefore, it is most likely that the Convention has to be applied exclusively with regard to carrier liability.59
According to Article 29 of the Convention, it should indeed be applied exclusively, by stating that damages, however founded and on whether based on the Convention or contract or otherwise, can only be brought before court subject to the conditions and limits of the Convention. Moreover, Article 29 states that punitive, exemplary or any other non-compensatory damages are not recoverable. Therefore, it can be concluded that according to the Convention has exclusivity with regard to carrier liability.
However, in the Krys v. Lufthansa German Airlines case the District Court stated otherwise by deciding that the Convention was not exclusively applicable. This case is an example of a passenger who was not entitled to recovery under Article 17 of the Convention but got awarded recovery under domestic law. During a flight from Miami to Frankfurt the passenger Krys suffered from severe pain on his chest. A doctor on board stated that an intermediate stop was not required even though the passenger “suffered the symptoms of a cardiac infarction, as described by the American Medical Association and Lufthansa's Manual”. Eventually, it appeared that the passenger had suffered from a heart attack, which had caused severe damage to his body.60
The plaintiff Krys claimed recovery under Article 17 of the Convention by arguing that the flight attendant crew should have followed the Lufthansa’s Manual instead of the advise of a doctor on board. Therefore, according to the passenger, the flight attendant crew had acted in a negligent manner, which had caused an accident under the Convention. The District Court decided otherwise and ruled that the heart attack did not fall within the scope of Article 17 of
the Warsaw Convention.61 However, Krys got awarded 2.4 million dollars for common law
negligence, a ground for liability under domestic law in America.
58 E. Giemulla, L. Weber, International and EU Aviation Law: Selected Issues, Kluwer Law International,
2011, p. 345
59 P.S. Dempsey, S.O Johansson, Montreal v. Brussels: The Conflict of Laws on the Issue of Delay in
International Air Carriage, Air & Space law, Kluwer Law International, no. 3, 2010
60 United States Court of Appeals, 25 August 1997, 119F.3d1515 (Krys v .Lufthansa German Airlines) 61
Note: in this case the Warsaw Convention was applicable, but the exclusivity doctrine applies to both the Warsaw and Montreal Convention
14
Lufthansa appealed and stated that the heart attack did indeed fall within the scope of “accident” under Article 17 of the Convention in order to have the recovery for the damage Krys suffered capped to a maximum amount of money. However, the Court of Appeal did not agree with Lufthansa and stated that the actions of the flight attendant crew did not cause an accident and that the heart attack could therefore not fall within the scope of Article 17 under the Convention.62 The District Court and the Court of Appeal considered that the Convention was not exclusively applicable and that recovery was therefore not solely possible under the Convention but also under domestic law.
Since the Krys v. Lufthansa German Airlines case several courts have ruled differently on whether the Montreal Convention has to be applied exclusively. The US Supreme Court put an end to this legal uncertainty in the now leading El Al Israel Airlines v. Tseng case by concluding that the Convention was exclusively applicable with regard to the liability of the carrier El Al Israel Airlines.63 Even though the subject of this case is not relevant with regard to liability under Article 17 of the Convention, it is nonetheless a very important case with reference to exclusivity of the Convention.
Under common law the ‘exclusivity doctrine’ is generally accepted, the question remains if this acceptance also applies to civil law courts.
The issue of exclusivity has been addressed before the European Court of Justice with regard to delay of passengers. The European Court of Justice ruled in the Sturgeon v. Condor Flugdienst case 64 about the issue of exclusivity of the Montreal Convention and the European Regulation (EC) 261/2004 regarding recovery for delay in carrier of passengers.65
The European Court of Justice decided that the Regulation was not conflicting with the
Montreal Convention provisions regarding delays and was therefore applicable.66 The
European Court of Justice therefore disregarded Article 29 of the Montreal Convention by deciding that European Regulation governing liability of carriers is applicable with regard to delay in the carrier of passengers.
The Sturgeon v. Condor Flugdienst case was remitted back to the Bundesgerichtshof (German Supreme Court). Even though Condor argued that The European Court of Justice had exceeded its competence, the Bundesgerichtshof followed the approach of the European Court of Justice. The Court ruled that the Regulation was compatible with the Convention and could
62 United States Court of Appeals, 25 August 1997, 119F.3d1515 (Krys v .Lufthansa German Airlines) 63 U.S. Supreme Court, 12 January 1999, 525US155 (El Al Israel Airlines Ltd.v.Tseng)
64 European Court of Justice, 19 November 2009, C-402/07 and C-432/07 (Sturgeon v. Condor Flugdienst) 65
Regulation (EC) 261/2004 on establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights
66 P.S. Dempsey, S.O Johansson, Montreal v. Brussels: The Conflict of Laws on the Issue of Delay in
15
therefore be applied to the contract or carriage between the passenger and the carrier, which led to recovery for the passenger under the Regulation.67
It appeared that courts within the European Union where not entirely without doubt on whether the Sturgeon judgment was compatible with the Montreal Convention. Amongst other courts, the Rechtbank Breda (Dutch District Court) asked preliminary questions before the European Court of Justice on whether recovery under Article 7 of the Regulation (EC)
261/2004 is compatible with Article 29 of the Montreal Convention 68 Additionally,
approximately 2000 courts awaited their judgment in order to obtain concrete information from the European Court of Justice regarding the ‘exclusivity doctrine’.69
However, the European Court of Justice decided to not change its previous judgment in the Sturgeon case and confirmed the right to compensation for delay in the joint cases Nelson v. Deutsche Lufthansa AG and TUI Travel v. Civil Aviation Authority.70
Numerous authors have criticized the view of opinion by the European Court of Justice.71 However, based on the confirmation of the judgment of the European Court of Justice, it will not be very likely that courts within the European Union will deny a claim under Regulation (EC) 261/2004 based on exclusivity of the Montreal Convention.
The question whether the Montreal Convention has to be applied exclusively with regard to liability for bodily injury has been addressed before the Rechtbank Amsterdam (District Court) in the Netherlands. The Court did not explicitly exclude liability under domestic law. The Court considered that, based on the argument that the flight attendant crew did not violate the standards of care, recovery under domestic law was not possible. The Court did not consider whether the claim based on domestic law was inadmissible due to exclusivity of the Montreal Convention.72
Just recently, the UK Supreme Court (common law) confirmed the exclusivity doctrine in the Convention in the Stott v. Thomas Cook case. This case regarded a handicapped passenger who invoked his rights against discrimination under The Civil Aviation Access to Air Travel for Disabled Persons and Persons with Reduced Mobility Regulations 2007, which is European law implemented by the United Kingdom. Thomas Cook, however, invoked
67 Bundesgerichtshof, 19 February 2010, Xa ZR 95/06
68 Rechtbank Breda, 27 June 2011, ECLI:NL:RBBRE:2011:BQ5967 and:
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62011CN0315
69
I. Koning, The disabling of the EC Disability Regulation: Stott c. Thomas Cook Tour operators Ltd. in the light of the exclusivity Doctrine. European Review of Private Law, 22, 2014, p. 769-786
70 C-581/10. Nelson e.a. / Deutsche Lufthansa AG en C-629/10 TUI Travel e.a. /
Civil Aviation Authority.
71
B.F. Havel, Beyond Open Skies: A New Regime for International Aviation, Kluwer Law International, 2009, p. 479
72
16
exclusivity under the Montreal Convention. 73 The issue was whether the Montreal
Convention excluded recovery for discrimination under the Regulation. The Supreme Court considered the Convention exclusively applicable. Due to the fact that recovery was solely possible under the Regulation and not under the Convention the plaintiff did not get awarded any damages.74 Therefore, it can be concluded from this case that the Montreal Convention has exclusivity with regard to liability in case of conflicting or complementing law that is derived from European Law.
Therefore, under common law The Montreal Convention is exclusively applicable regarding carrier liability. Under civil law, The Montreal Convention is not exclusively applicable with regard to delay of passengers.
Whether, according to civil law courts, The Montreal Convention is exclusively applicable with regard to bodily injury under Article 17 of the Convention remains uncertain. It is however clear, that according to text of The Montreal Convention and following common law, the Convention has to be applied exclusively.
73 Civil Aviation Access to Air Travel for Disabled Persons and Persons with Reduced Mobility Regulations
2007
17
Chapter 2: Common law regarding ‘accident’ under Article 17 of the
Convention
2.1 Article 17: entitlement to recovery in case of liability of the carrier
Under the Montreal Convention the carrier is liable for damage sustained in case of death or bodily injury of a passenger if the accident, which caused the death or injury, took place on board the aircraft or in the course of any of the operations of embarking or disembarking. The most important article with regard to liability in case of death or bodily injury is Article 17 which becomes relevant after it has been determined that there is an international carriage to which the convention applies. All though the wording of Article 17 changed under the Montreal Convention the key elements remain the same as they are under the Warsaw Convention. As stated before in paragraph 1.2, it is not relevant whether Article 17 of the Warsaw or article 17 of the Montreal Convention is applicable. Article 17 paragraph 1 of the Montreal Convention states that:
‘The carrier is liable for damage sustained in the case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking’.
When interpreting the wording of Article 17 the following relevant requirements can be determined: required is a) death or bodily injury of the passenger, b) causation between the accident and the bodily injury or death, and c) there must be an accident where the passenger must either be on board of the aircraft or in the process of embarking or disembarking. The Montreal Convention does not provide a definition of ‘accident’ and does not provide any information on how it should be interpreted. It is therefore not clear whether it is possible for a passenger to recover for injury under Article 17 of the Montreal Convention in case of an accident that is internal to the passenger. Is, for example, a carrier liable under Article 17 if a passenger suffers from a heart attack? Common sense would say that this is not very likely, but what if the heart attack happens during a flight and the flight crew fails to deliver adequate medical assistance? As stated in the introduction, internal injury means: “Any trauma that involves organs or cavities of the body”.75 Under the Montreal Convention recovery for internal injury often applies to passengers who suffer from a pre-existing medical condition,
75
The Medical Dictionary:
18
such as a severe allergy. Internal injury has to be distinguished from mental injury because internal injury only refers to physical injuries. Recovery for mental injury does not fall within the scope of the Convention. However, some courts have ruled that recovery for mental injury is possible in case the mental injury caused bodily injury (for example bodily injury caused by a trauma).76
The only thing that can be derived from Article 17 is that it requires causation between the accident and the bodily injury or death. Whether Article 17 excludes recovery for damages caused by an accident internally to the passenger cannot be clarified by reading Article 17. Therefore, whether Article 17 excludes recovery for damages caused by an accident internally to the passenger has to be interpreted through relevant case law. Common law regarding Article 17 will be discussed in paragraph 2.3 and following of this chapter and civil law case law will be discussed in the chapter thereafter, chapter three.
2.2 Uniform application of the Montreal Convention
As stated in the previous paragraph, the Montreal Convention does not provide a definition of “accident” and does not provide any information on how it should be interpreted. The term accident is very clear to most people; if you hit a tree with your car or if you fall from a roof this will be considered to be an accident. It is however, not clear what exactly falls under the scope of the definition “accident” on board of an airplane or airport. For example, will it be considered an accident if a passenger contracts deep vain thrombosis on board of an airplane which results in a seizure? The scope of “accident” within the area of international air law is complicated to define which results in the high amount of cases, and includes various interpretations of the definition of accident.77
There are several ways to interpret a treaty within international law. The Convention is a direct applicable international treaty78 and is an autonomous part of private law. Therefore, it should be interpreted in an autonomous manner according to the perspective of the drafters of the treaty.79 The deciding judge needs to be aware of the fact that the Convention fulfills an
76 B.F. Havel, G.S. Sanchez, The Principles and Practice of International Aviation Law, New York: Cambridge
University Press, 2014, p. 288
77
M. Polkowska, ‘Some observations on Civil Air Carrier Liability in International Air Carriage-
‘’Accident’’, ‘’Damage’’ and Jurisdiction’, Uniform Law Review – Revue de droit uniforme, Oxford University Press, 2010, Vol 15(1), p. 109
78
Note: by ratifying the Convention it became directly applicable due to the way it has been devised: S.E van Hall, M.L. Hendrikse, N.J. Margretson, H.P.D. den Teuling, G.J.P de Vries, Capita Internationaal
Handelsrecht, Zutphen: Uitgeverij Paris, 2013 p. 31
79
19
international function: “We should expect (and insist) that tribunals construing an international convention will appreciate that they are colleagues of a world-wide body of jurists with a common goal” 80 Therefore, the deciding judge should not resort to domestic methodology to interpret Article 17 of the Convention.81
As stated by the U.S. Supreme Court in the Floyd v. Eastern Airlines case and article 31 of
the Vienna Convention of the Law of Treaties82 different parameters can be applied to
interpret Article 17. The first parameter to be used is grammatical interpretation, specifically regarding the text and the context of the Convention.83 The original wording of the authentic text of the Warsaw Convention is in French and it is therefore clear that the French language needs to be followed when interpreting this treaty. However, the Montreal Convention has all ICAO languages as official languages (English, Arabic, Chinese, French, Russian and Spanish).84 According to the Convention all languages are authentic which implies that they are all equal. Hence, when interpreting the wording of Article 17 of the Montreal Convention all official ICAO languages can be used to interpret Article 17, which makes it difficult due to the fact that different translations can lead to different interpretations. According to Article 33 of the Vienna Convention of the Law of Treaties all authenticated languages are equal but parties can come to an agreement that a specific language will prevail in case of divergence. Some authors are of the opinion that the English text prevails over the other ICAO languages due to the fact that the Convention was solely drafted in the English language.85
If grammatical interpretation does not provide a satisfying outcome, the parameter of teleological interpretation may be applied. This may be the case when texts differ from each other. When applying teleological interpretation it is important to take the intention of the Convention into consideration. The preamble and the travaux préparatoires should be taken into consideration, as it is important to consider the objects and structure of the Convention.86 Further, the systematic of the Convention, such as the divisions and chapters may also be relevant for the interpretation of Article 17 of the Convention. According to Article 31 of the
Handelsrecht, Zutphen: Uitgeverij Paris, 2013 p. 31
80 J.O. Honnold, ‘Uniform Laws for International Trade: Early "Care and Feeding" for Uniform Growth’,
International Trade and Business Law Journal, 1995, p. 1-10
81 L.A. DiMatteo, A.U. Janssen, ‘Interpretive uncertainty: methodolical solutions for interpreting the CISG’,
NTHR, 2012, p. 57
82
The Vienna Convention of the Law of Treaties 1969
83 U.S. Supreme Court, 17 April 1991, 499 U.S. 530 1471 904 (Eastern Airlines, Inc. v. Floyd) 84
P.P.C. Haanappel, The Law and Policy of Air space and Outer Space, The Hague: Kluwer Law International, 2013, p. 77
85
I Koning, Aansprakelijkheid in het luchtvervoer (dissertatie), Uitgeverij Paris: stad 2007 p. 21
86
M.L. Hendrikse, N.H. Margretson, N.J. Margretson, Aspects of Maritime Law, Claims under bills of lading, Alphen aan de Rijn: Kluwer Law International, 2008, p. 39
20
Vienna Convention of the Law of Treaties grammatical, teleological and systematic interpretation prevail as methods of interpretation.
Finally, the background of the Convention is an important factor to be considered by the deciding judge. For instance, if a Convention originates from a common law background, this should be taken into consideration when interpreting a provision within the Convention.87 However, it is important to notice that the parameters do not guarantee a successful result; the different ways of interpreting Article 17 of the Montreal Convention can lead to a different outcome. An autonomous interpretation does therefore not always lead to a uniform interpretation. If this is the case, the teleological, background or systematic parameter will prevail over the grammatical interpretation of the Convention.88
2.3 Common law - definition of ‘accident’ under Article 17
Under Article 17 of the Montreal (and Warsaw) Convention the carrier is liable for “damage sustained in the case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking”. Two relevant cases regarding the scope of the definition of accident are the United States District Court Abramson case89 and the leading United States Supreme Court Air France vs. Saks case.90 These cases are important in order to define whether internal injury falls within the scope of Article 17 and can therefore lead to recovery for the injury suffered by the passenger.
Abrahamson v. Japan Airlines Co. case
Abrahamson and his wife were passengers on a flight from New York to Tokyo with an intermediate stop in Alaska. Abrahamson suffered from a pre-existing paraesophageal hiatal hernia but had neglected to inform the staff of Japan Airlines about his medical condition. During the flight his condition aggravated which, according to Abrahamson, could be alleviated to prevent an attack through self-help remedy by lying down and massaging his stomach. Abrahamson’s wife asked the flight attendant for a place to apply self-help remedy, but according to the stewardess there were no empty seats available, while in fact there were 9 seats available partly situated in first class. As a result from his hernia the passenger
87
Note: for example The Hague Rules which applies to maritime law has an English background
88
S.E van Hall, M.L. Hendrikse, N.J. Margretson, H.P.D. den Teuling, G.J.P de Vries, Capita Internationaal
Handelsrecht, Zutphen: Uitgeverij Paris, 2013 p. 34-41
89
U.S. Court of Appeals, 19 July 1984, 739 F.2d 130 (Abramson v JAL)
90
21
contracted pneumonia and had to return to the U.S.A. where he underwent surgery.91 The hernia of the passenger has to be considered as being an internal to the passenger because it originated from within the passenger and not from external circumstances.
The relevant question was whether the aggravation of the hernia constituted an accident under Article 17 of the Montreal Convention. The U.S. District Court referred to the DeMarines v. KLM case92 with regard to the definition of the meaning of accident: “an accident is an event, a physical circumstance, which unexpectedly takes place not according to the usual course of things. If the event on board an aeroplane is an ordinary, expected, and usual occurrence, then it cannot be termed an accident. To constitute an accident, the occurrence on board the aircraft must be unusual, or unexpected, an unusual or unexpected happening.”93
According to Abrahamson the aggravation of the injury by Japan Air Lines constituted an unusual or unexpected happening. The U.S. District Court did not agree with Abrahamson and ruled: “In the absence of proof of abnormal external factors, aggravation of a pre-existing injury during the course of a flight should not be considered an “accident” within the meaning of Article 17”.94 According to the Court the injury that Abrahamson suffered “is not a risk either associated with or inherent in aircraft operation”.95
The fact that the passenger suffered from a hernia was considered to be internal to the passenger and therefore did not constitute an accident under Article 17. According to this case aggravation of a pre-medical condition by the flight attendant crew cannot be considered an unusual or unexpected event or happening. According to this case a pre-medical condition is not an accident if injuries suffered by the passengers were not suffered by risks associated with or inherent in aircraft operation.96
Air France v. Saks case: definition of accident under Article 17
The Air France vs. Saks case is considered to be the leading case with regard to the definition of “accident”. The plaintiff Saks was on her way from Paris to Los Angeles. While the airplane was descending towards the airport of Los Angeles Saks suffered from pressure on her ears, which caused her to become permanently deaf on her left ear. She filed a suit against Air France alleging that her deafness, which is obviously an internal reaction, was caused by
91 U.S. Court of Appeals, 19 July 1984, 739 F.2d 130 (Abramson v JAL)
92 United States Court of Appeals, 17 July 1978, 580 F. 2d. (DeMarines v. KLM Royal Dutch Airlines) 93 U.S. Court of Appeals, 19 July 1984, 739 F.2d 130 (Abramson v JAL), 12
94 U.S. Court of Appeals, 19 July 1984, 739 F.2d 130 (Abramson v JAL), 15 95 U.S. Court of Appeals, 19 July 1984, 739 F.2d 130 (Abramson v JAL), 16
96 Domenica DiGiacomo , ‘The End of an Evolution: From Air France v. Saks to Olympic Airways v. Husain –
Term ‘’Accident’’ under Article 17 of the Warsaw Convention Has Come Full Circle’, Pace International Law
22
“negligent maintenance and operation of the jetliners pressurization system”.97 However, according to evidence the pressurization system of the airplane had operated in a normal manner. Common sense would easily predict the outcome of the case: Air France is not liable for the passenger’s damage. This case is, however, very relevant within the area of international air law for its definition of ‘accident’ by the Supreme Court of the United States and has been followed by numerous courts including by courts in the Netherlands.98
The District Court in the Saks v. Air France case relied on a precedent, which stated that an “accident” was to be considered “an unusual or unexpected happening” and therefore granted the summary judgment to Air France. The Court of Appeals interpreted the definition of ‘accident’ by using grammatical interpretation by interpreting the French language and through looking at the history of the Warsaw Convention “as an occurrence associated with the operations of an aircraft which takes place between the time any person boards the aircraft with the intention of flight and such persons have disembarked”.99 The bodily injury of Saks falls within the scope of this broad definition concluded by the Court of Appeals. Therefore, Saks received recovery for her injury.
Air France appealed to the Supreme Court. In order to determine the definition of “accident”, Justice O’Connor, who delivered the opinion of the majority, used grammatical interpretation by following the original wording of the Convention. Moreover, O’Connor applied the parameter of teleological interpretation by examining at the intention of the drafters of the Warsaw Convention.
First, Justice O’Connor referred to Article 17 of the Convention, which provides that the carrier can be held liable for bodily injury in case of an “accident”, while under Article 18 of the Convention the carrier is liable for the loss or destruction of baggage caused by an “occurrence”. O’Connor concluded that because of the fact that different definitions where given in Article 17 and 18 they must also mean something different. The drafters of the text clearly meant to give another meaning to the definition of “accident” than an accident being an “occurrence”.100
Secondly, Justice O’Connor referred to the causation element in Article 17: bodily injury caused by an accident. She thereby refers to the definition given by Lord Lindley in the Fenton v. J Thorley case: “the term accident is not a technical term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any
97 US Supreme Court, 4 March 1985, 470 U.S. 392 (Air France v. Saks) 98 For example: Rechtbank Amsterdam, 30 July 2014, JA 2014/105 99
U.S. Court of Appeals, 31 January 1984, 724 1383 (Saks v. Air France)
100
23
unintended or unexpected occurrence, which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word `accident' is also often used to denote both the cause and the effect 101, no attempt being made to discriminate between them”.102 Apparently there is a difference to be made between an accident that is the passengers injury and an accident that caused the passengers injury. Article 17 clearly indicates that the accident must have caused the injury.
O’Connor concluded that these two findings did not cause for a complete definition of “accident”. Therefore, O’Connor uses grammatical interpretation to interpret the wording of the original French text by comparing the French description by the dictionary of “accident” with the definition in Germany, the United States and Great Britain and concludes that the definition usually means: “a fortuitous, unexpected, unusual, or unintended event” which makes it clear that the text of the Convention means that that the injury must have been caused by an unexpected or unusual event which is consistent with the intention of the drafters.
Justice O’Connor finally provides a narrow interpretation of the definition accident: “liability under Article 17 arises only if a passenger’s injury is caused by an unusual or unexpected event that’s external to the passenger.” Moreover, according to justice O’Connor there is a requirement of an element of causation between the injury and the accident, which should be flexibly applied: “After assessment of all the circumstances surrounding the passenger’s injuries”. “Any injury is the product of a chain of causes, and we require only that the passenger be able to prove some link in the chain was an unusual or unexpected event external to the passenger”. 103
The following four elements are required to constitute an accident:
The passenger’s injury or death must be caused by an event or happening;
The event or happening must be unexpected or unusual (contrary to normal flight conditions);
The event or happening has to be external and therefore cannot be internal to the passenger;
101
Note: emphasis added by the author of this thesis
102 Note: the subject of this case was not aviation law but labour law, but was nonetheless considered as a useful
general definition of ‘accident’:
House of Lords, 1 January 1903, AC 443 (Fenton v. J Thorley)
103
24
The accident must cause the bodily injury or death.
O’Connor provides a narrow interpretation of the definition accident and a broad interpretation regarding the causality requirement. This definition of accident by O’Connor is now accepted internationally and is considered the key definition of the element “accident” under Article 17 of the Convention.
2.4 Olympic Airways v. Husain case 2004 - liability in case of negligence
After the Saks case, it appeared to be clear that recovery for injury is not possible if the bodily injury is considered to be internal to the passenger. The Husain case is an important case because it broadened the definition of “accident”, as was presented by Justice O’Connor in the Air France v. Saks case by awarding recovery for injury that was internal to the passenger. Moreover, the Court included negligence as possibility to recover for bodily injury under Article 17. The passenger Dr. Hanson suffered from a pre-existing medical condition, which led to his death during an overseas flight. His wife Mrs. Husain filed a suit against Olympic Airways due to negligence and the Supreme Court of the Unites States ruled in her favor. Dr. Hanson had requested a seat in the non-smoking section because he suffered from severe asthma, which caused him to be sensitive to second hand smoke. He was assigned a seat in the non-smoking section three rows away from the smoking section. Considering his condition this seat was not appropriate and Dr. Hanson and his wife therefore asked the flight crew several times to change his seat prior to and during the flight explaining that Dr. Hanson was ‘allergic to smoke’. Despite the fact that there were several seats available the flight attendant ignored their request. The smoke inhalation triggered a severe asthma attack, which led to dr. Hanson’s death. Dr. Hanson’s wife claimed recovery and argued that the negligence of the flight crew had caused an “accident” under Article 17 of the Convention. The question before Court was whether the omission of the flight crew of Olympic Airways constituted an accident, which would entail that Olympic Airways could be held liable under Article 17. The plaintiff had argued that the refusal of the Olympic Airways flight attendant crew to assign dr. Husain another seat together with the fact that they did not provide him with oxygen and neglected to turn on the non-smoking sign during his severe asthma attack had constituted an accident. Olympic Airways argued that the attack was aggravated solely by inhaling smoke and that the omission of the flight attendant crew could not constitute an accident. Justice O’Conner had stated before in the Saks case that: “when we interpret a
25
treaty, we accord the judgments of our sister signatories “considerable weight””.104 The England Court of Appeal105 and the High Court in Australia106 had ruled that an inaction or omission by the flight attendant crew couldn’t constitute an accident under Article 17. However, irrespective of the conclusions of the courts in the United Kingdom and Australia, the District Court, Ninth Circuit and U.S. Supreme Court stated that an omission could indeed constitute an accident.
The District Court considered the fact that the flight crew neglected to reassign Dr. Hanson another seat constituted an accident. The fact that the flight attendant refused to reseat Dr. Hanson was “unusual or unexpected in the light of the relevant industry standard or petitioners own company policy” and was therefore an unusual and unexpected event. According to the District Court the Olympic Airways flight attendant crew had violated “the recognized standards of care” by not assigning Dr. Hanson another seat. According to Court, the failure of the flight attendant crew to reassign Dr. Hanson was an event or happening that had to be considered as being external to the passenger.107
The Court of Appeals followed the reasoning of the District Court by stating that: “it was clearly external to Dr. Hanson, and it was unexpected and unusual in light of industry standards, Olympic policy, and the simple nature of Dr. Hanson’s requested
accommodation”108. The Court of Appeals applied the definition of Saks regarding the
flexible application of the causality between the accident and the injury by assessing all circumstances surrounding dr. Hanson’s injuries and considered that an accident does not have to be the sole causal factor; “the plaintiff only needs to prove that some link in the chain was an unusual or unexpected event external to the passenger”.109
Apparently the lawyers of Olympic Airways were not fully up to their game as they neglected to challenge the finding of the District Court that the flight attendant’s conduct to refuse to move Dr. Hanson was unusual or unexpected in light of the relevant industry standard or petitioner’s own company policy before the US Supreme Court. Justice Tomas J of the US Supreme Court who represented the majority of opinions concluded that: “Consequently, we need not dispositively determine whether the flight attendant’s conduct qualified as “unusual
or unexpected” under Saks, but may assume that it was for purposes of this opinion”.110
104 U.S. Supreme Court, 4 March 1985, 470 U.S. 392 (Air France v. Saks), 404 105
Court of Appeal, 3 July 2003, EWCA Civ. 1005, WL 21353471 (Deep Vein Thrombosis and Air Travel
Group Litigation)
106
High Court of Australia, 23 December 2003, VSCA 227, 17, 2003 WL 23000692 (Qantas Ltd. v. Povey)
107
U.S. District Court, 3 October 2000, 116 F. Supp. 2d 1121 (Husain v. Olympic Airways)
108
U.S. Court of Appeals, 12 December 2002, 316 F. 3d 829, 837 (Olympic Airways v. Husain) 43
109
U.S. Supreme Court, 24 February 2004, 540 U.S. 644 (Olympic Airways v. Husain) 20
110
26
Whether refusal to remove a passenger is unusual or unexpected therefore remains undecided by the US Supreme Court.
Additionally, the petitioner argued that the causation element under Article 17 requires an action that causes the injury and the fact that the flight attendant crew did not assign Dr. Hanson another seat was a mere failure to act. The question that needed to be decided by the Supreme Court was whether: “the carrier’s unusual and unexpected refusal to assist a passenger is a link in a chain of causation resulting in a passenger’s pre-existing medical condition being aggravated by exposure to a normal condition in the aircraft cabin”. Thomas J. answered this question affirmatively because of the refusal of the flight attendant crew of Olympic Airways to assign dr. Hanson to another seat. The omission of the flight crew to assign Dr. Hanson another seat was a link in the chain of causes that was considered to go beyond the negligence standard; the flight attendant was aware of the medical situation of dr. Hanson but failed to act to this matter.111
Moreover, Article 17 imposes an important duty on the carrier: “where a crew can assist a passenger suffering from a pre-existing medical condition, it must or such an omission renders the carrier liable where it could have taken reasonable steps to prevent aggravation of the condition”. Both the refusal to reseat dr. Hanson and the exposure to the second hand smoke contributed to the death of dr. Hanson. The US Supreme Court stated that the flight attendant crew had failed to undertake the ‘necessary vital step’ to move dr. Hanson. The Court hereby distances itself from what was held by the Court in the Abrahamson case. The Court had however, left the question unanswered whether the failure to act when a passenger did not request for assistance is recoverable under Article 17.
It can be concluded from this case is that mere internal injury alone is not sufficient, but internal injury aggravated by the unexpected or unusual response by the flight attendant crew can be considered an accident under the Convention.
2.5 Liability in case of not warning for the risks of developing deep vein thrombosis
A substantial issue with regard to internal injury within the area of air law was deep vein thrombosis. Every year, numerous passengers suffer from deep vein thrombosis (further: DVT) due to lack of space and leg activity. DVT, also referred to as the economy class syndrome, is developed by approximately ten percent of all passengers.112 Even though most
111
U.S. Supreme Court, 24 February 2004, 540 U.S. 644 (Olympic Airways v. Husain) 6
112
Deep vein thrombosis causing trouble, The Economist, 10th July 2003 http://www.economist.com/node/1907725
