Montreal Convention Does Not Apply To Crew Members

The Montreal Convention requires airlines to compensate international travelers who are injured as a result of an “accident.”  If the passenger is killed, the Montreal Convention requires the airline to compensate the family members. But the Convention considers neither an airliner's pilots nor its flight attendants to be “passengers.”  Thus, crew members' claims (or the claims of their familiesCrew Cap in the event of a fatal accident), are usually governed by by local law, not the Convention. In the US, that means that any lawsuit the crew member might bring against the airline would likely be barred by the applicable workers compensation statutes, which typically prevent any employee from suing his or her employer for work-related injuries.

Of course, crew members or their families are free to pursue claims against those other than the airline who might be responsible for an accident. Often that’s an aviation manufacturer. But unlike passengers, crew members generally cannot sue the airline.

There is one exception. A crew member may be considered a “passenger” if she was “deadheading.” That is, if the crew member was off-duty, but the airline had her on the aircraft simply to transport her from Point A to Point B, then the Convention would apply to her claims.

Airline's Liability for Injuries Caused by Falling Baggage

It's the passenger in the aisle seat who is most often injured by baggage falling from an overhead bin. The injuries can be serious and can include mild traumatic brain injury.Overhead bin

If the baggage falls and injures a passenger who is travelling internationally, then the Montreal Convention or Warsaw Conventions apply.  The conventions are international treaties that make the airlines automatically liable for any injury to the passenger that resulted from an "accident."  An "accident" is defined as an unusual or unexpected event that is external to the passenger.  Under certain circumstances, being injured by falling baggage may well qualify. 

The conventions apply even if the flight was entirely domestic, as long as the passenger had an international destination somewhere on his itinerary.

What if the flight on which the injury occurred was domestic and there was no international travel involved?  Then it's trickier.  The passenger must prove that the airline was negligent before the airline can be held liable.  For example, the passenger must prove that a flight attendant was careless in opening a baggage compartment and allowing the object to fall out.  Or, the passenger must prove that the bag fell out when a fellow passenger opened the compartment because a flight attendant stowed the bag improperly.

United Flight 935: Airline's Obligation to Compensate Passengers Injured by Turbulence

At least 10 people aboard United Flight 935 were hurt when the aircraft encountered severe turbulence.  Is the airline responsible for compensating its injured passengers?

Continental 767 CabinBecause Flight 935 was an international flight, a treaty known as the Montreal Convention governs the passengers' claims.  The Montreal Convention makes the airline liable for any injuries suffered on board the aircraft due to an "accident."  The definition of "accident" includes an encounter with severe turbulence.  The passenger need not prove that the airline was at fault for the accident.  Under the Convention, the airline is automatically liable.

Some courts have ruled that while an airline is automatically liable for any "accident" on an international flight, its obligation to compensate an injured passenger may be reduced if the passenger himself contributed to his injury.  One issue that typically arises in turbulence cases is whether the injured passenger should have been wearing his seat belt.  In this case, it appears the seat belt sign was off and the turbulence competely unexpected, so that should not be an issue.

As discussed here, the Convention entitles the passengers to be compensated for the emotional distress they have suffered, but only if they also suffered some sort of physical injury as well.

Finally, as discussed here, the passengers are entitled to sue the airline for compensation in the United States, and in particular in California (Los Angeles or San Francisco), regardless of their citizenship or final destination. 

Suing the Foreign Air Carrier in the United States

Other countries severely limit compensation that may be awarded in wrongful death lawsuits arising from airline accidents.  For example, many other countries do not allow families to be compensated for loss of a loved one's "care, comfort, or society."  As a result, in almost all situations, the best venue for a family's lawsuit against an airline is the United States.International Flags

If the airline passenger's trip included an international stop, then the proper venue for any lawsuit against the airline is controlled entirely by international treaties known as the Warsaw and Montreal Conventions.  The Warsaw Convention permits the passenger (or the passenger's family) to sue the airline in the United States, even though the accident happened on foreign soil, if and only if:

  1. The passenger's ticket was issued in the United States;
  2. The passenger's journey was a round trip that started in the United States or was a one-way trip that ended in the United States; 
  3. The airline is incorporated in the United States; or
  4. The airline's principal place of business is in the United States.

The Montreal Convention has replaced the Warsaw Convention in most situations. The Montreal Convention adds to the list what has been called a "fifth jurisdiction." Regardless of where the accident occurred, or where the passenger began or ended his trip, the international traveler or his family may sue the foreign airline in the United States if the United States was the passenger's "principal and permanent residence."  For this fifth option to be available, however, the airline must maintain some sort of presence in the United States.     

Statutes of Limitation in Aviation Accident Cases

The victim of an airplane or helicopter accident must act on his rights or lose them forever.  That means the victim must file a lawsuit by the appropriate deadline.  In some cases, the victim must first file a special claim form with the right governmental agency.  If he fails to do so on time, or files it with the wrong agency, he willl not be permitted to later sue the government agency that is responsible for his injuries.

The deadlines vary according to the type of claim as well as other factors. A victim should consult an aviation lawyer to determine which deadline applies.  Some of the more common deadlines that may apply in California cases:

  • Cases involving International Air Travel (Warsaw and Montreal Conventions)  - Lawsuit must be filed within 2 years of the aircraft's arrival (or expected arrival) at the destination.
  • Cases against California Governmental Entities (such as those involving municipal airports) - Victim must file a special governmental Claim Form (pdf) within 6 months of accident or no lawsuit is thereafter allowed; lawsuit must be filed no later than 6 months after the governmental agency rejects the claim.
  • Cases alleging negligence or products liability (including design defect)  - Lawsuit must be filed within 2 years of accident.
  • Cases against the Federal Government (such as those involving weather reporting or air traffic control errors) - Victim must file a special Federal Tort Claims Act Claim Form (pdf)  within 2 years of accident or injury; suit must be filed no later than 6 months after government rejects the claim.
  • Cases against EMS Helicopter/Air Ambulance Operators, if MICRA applies - Lawuit must be filed within 3 years of accident; other pre-filing requirements may apply.  Otherwise, lawsuit must be filed within 2 years of accident.
  • Claims against the estate of someone who caused the accident but who has since died are often subject to shorter statutes of limitations than set forth above.  Some deadlines are as short as 6 months.

Additional deadline:

  • Cases against aircraft manufacturer - (including those alleging design defect) -  No lawsuit allowed if accident occurred more than 18 years after date of manufacturer of aircraft of part causing the injury, subject to certain exceptions set forth in the General Aviation Revitalization Act

Some deadlines are extended under special circumstances, such as when the victim is a child.  On the other hand, some deadlines, like the 2- year Warsaw Convention deadline, are not extended for any reason.

British Air Passengers' Baggage: Going, going, gone . . .

The Washington Times recently reported that British Airways passengers may proceed with their lawsuit for compensation for lost baggage.  British Airways loses 23 bags per 1,000 passengers carried, a rate more than 60 percent higher than the industry's average, according to the Air Transport Users Council. 

The Warsaw Convention limits to $9.07 per pound what a passenger can recover against an airline for lost luggage, up to a maximum of  $1500 per bag. The frustrated passengers' class action lawsuit (pdf) seeks to recover the full value of items lost, even if it exceeds the Warsaw Convention's monetary limit, because British Airways prematurely auctions personal items that inspectors remove from baggage-- such as iPods, digital cameras, computer laptops, and mobile phones-- instead of giving the passengers a reasonable chance to reclaim them. The passengers say that the airline auctions off items which have only been 'missing' for a few weeks.

British Airways says the suit overreaches. Nonetheless, federal judge Nicholas G. Garaufis has permitted the lawsuit to continue (pdf). The passengers may have found an ally in Judge Garaufis.  But proving willful misconduct -- required before the passengers can bust the Warsaw limits -- will be difficult.   My prediction: the passengers' lawsuit, like their baggage, will ultimately be lost. 

US Airways Flight 1549: What Claims Do The Passengers Have?

Some Flight 1549 passengers have reportedly "lawyered-up."  What legal claims do they have?Flight 1549  Putting aside the question of whether pursuing the claims is the right thing to do -- some say they should simply count their blessings -- do the passengers have any claims to begin with?

Well, it depends on the law that applies.  For example, under California law, a passenger would first have to show that the accident was caused by the airline's negligence.  From what is known so far, that seems unlikely. If, however, the passenger succeeds in proving negligence, he would be entitled to compensation for any physical injuries he sustained as well as compensation for the emotional distress he suffered. 

What if the passenger suffered just emotional distress and no physical injuries? Again using  California law as an example, if the airline was negligent, the passenger could recover for the emotional distress, as long as that the emotional distress was "serious."  (Not much question about that.)

What if the passenger had a foreign destination listed someplace on his itinerary?  That would change everything. Even though the flight was domestic, the Montreal Convention, an international treaty governing airline liability, would trump state law.  The passenger would not need to prove the airline was negligent to recover.  It is enough that a passenger's injuries were the result of an "accident."  The airline would be automatically liable. But under the Convention, the passenger would not be entitled to compensation for mental injuries, regardless of how "serious", unless he also suffered at least some physical injury.

Warsaw and Montreal Conventions

An airline's liability for a passenger's injury or death is most often determined by state law. But if the passenger's trip includes a stop in a foreign country, then the airline's liability is controlled entirely by international treaties.  The treaties are known as the Warsaw Convention and the Montreal Convention

The treaties also govern a passenger's claims for injuries occurring on a domestic flight, as long as a foreign destination was on the passenger's itinerary.  That means that state law may govern the claims of one victim of an airline disaster, while a treaty may govern the claims of his friend in the very next seat.  Because different law applies, one victim (or his family) might be entitled to compensation from the airline, and the other not.

Which is more favorable for the victim -- state law or the treaties? It depends on the circumstances of the case. For example, if state law applies, to successfully sue an airline, the passenger must prove that the injury occurred because the airline was "negligent" or, in other words, "careless".  But if a treaty applies, the passenger need not prove the airline was negligent at all. If a treaty applies, the passenger need only prove that his injuries were the result of an "accident." 

What if a flight attendant accidently pours hot coffee on you and you are seriously burned?  Under state law, you could recover from the airline, if you prove the flight attendant was careless.  Of course, if the flight attendant splashed you on purpose, you would be entitled to compensation as well.  But what  if the treaties apply? Can the flight attendant's intentional act be considered an "accident"?  Courts have struggled with this sort of question, and offer no clear-cut answer. 

Texts of Warsaw and Montreal Conventions

Text of Warsaw Convention here. (pdf)

Text of Montreal Convention here. (pdf)

List of countries which have signed on to Montreal Convention here. (pdf)  [updated December 2009]