Plaintiff was on a flight from Abu Dhabi to Chicago. She placed her hand into the seatback pocket, and was unexpectedly stuck with a hypodermic needle that lay within.
American Airlines Flight 109, traveling from London to Los Angeles, was two hours into its flight when passengers and crew members suddenly started fainting or otherwise becoming ill. The captain turned the Boeing 777 around and landed at Heathrow.
According to the Daily Telegraph in Britain, the aircraft likely experienced a problem with the aircraft’s pressurization system:
This would suggest problems with cabin pressure, although normally such problems occur during take-off and landing.
American Airlines added that the aircraft was being inspected by maintenance engineers.
Actually, what happened was likely a “fume event.” For years, the airline denied fume events existed, but now we know that they do. And we know that they are dangerous. In fact, I wrote about a fume event aboard another American Airlines Flight (Flight 49) almost five years ago.
Here’s what happens: airlines pump air into the cabin. The air is a mix of fresh air and air that has been compressed by the aircraft’s engines–known as "bleed air." But when the air distribution system malfunctions, toxic chemicals found in the aircraft’s engine oil can be heated and pumped through the airplane, creating a fume event that makes passengers sick
Sometimes the passengers recover quickly, sometimes the ill effects can linger for years, with victims suffering ongoing tremors, memory loss, and headaches.
If they are injured, passengers can recover against the responsible airline. Because American Airlines Flight 109light was international, the Montreal Convention applies. The Convention requires an airline to offer fair compensation to anyone injured as a result of an "accident." A fume event would likely qualify as an accident, even though some airlines now contend that fume events are a "normal” part of flight.
The flight attendants, however, can’t sue the airlines due to workers’ compensation laws. That means their only chance for compensation is a product defect claim against Boeing, the aircraft’s manufacturer. As it turns out, Boeing has known about the risks of fume events in its designs since the 1950’s.
It looks as though the Germanwings first officer intentionally crashed the aircraft, killing all aboard. Reporters are asking about the airline’s obligation to provide the passengers’ families monetary compensation. Here are some answers:
The airline must compensate the families for any "accident." Because Flight 9525 was an international flight, all the families’ claims are governed by a treaty called the Montreal Convention. The treaty makes the airline automatically liable to the families for any "accident." It doesn’t matter whether the airline was negligent or did anything wrong.
The crash was the result of an "accident." Even if, as it appears, the first officer intentionally crashed the plane, it was still an "accident." Most courts define "accident" for the purposes of the Montreal Convention to be any "unexpected or unusual event or happening that was external to the passenger." The pilot’s decision to crash the plane would certainly qualify.
The Montreal Convention’s limits of liability will not apply. An airline can avoid paying to the families of those lost in an accident any amount over 113,100 Special Drawing Rights (a sum equal to about US$160,000) if it can prove that it was in no way at fault for the crash. Generally, it’s very difficult for an airline to make that showing. It’s the problem of proving a negative. In this case, of course, it will be impossible for the airline to prove it was completely free of fault. So the Convention will impose no limit on the airline’s obligation to compensate the families for their loss.
The Airline is off the hook for punitive damages. Though the airline will have to compensate the families for their losses, even if it turns out that the airline knew or should have known that the first officer presented a danger, the Montreal Convention prohibits a court from awarding punitive damages, or money designed to punish the airline rather than compensate the families.
The amounts that the families will receive depends upon where they sue. The Montreal Convention leaves it to the courts of the country in which the passenger sues to decide how much money is appropriate compensation for the loss of a loved one. Every country is different. In the United States, certain families of those lost could expect payouts to exceed $10 million, depending on the circumstances. In France and Germany, the payouts would be much, much lower.
Few passengers, if any, will be able to sue in the US. The Montreal Convention allows families to sue in the United States only in certain limited circumstances. For example, a family might be able to sue in the US if the passenger happened to purchase his tickets in the US, or if he was planning to continue on after landing to a destination in the United States, or perhaps if the passenger was US resident.
US Airways Flight 735 from Philadelphia to Orlando encountered turbulence as it passed through 17,000 feet. Three passengers and two flight attendants were injured so badly that they were hospitalized when the plane returned for landing in Philadelphia.
What is the Airline’s obligation to compensate the injured? The answer varies.
Passengers who were traveling on Flight 735 as part of an international flight:
If a passenger originated outside the US, or was ticketed to continue on from Orlando to a foreign destination, the Montreal Convention applies to that particular passenger’s claim. 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.
As discussed here, the Convention also entitles the passengers who suffered a physical injury to be compensated for the emotional distress they suffered as well.
Passengers who were traveling domestically:
To obtain compensation for his injuries, the domestic passenger needs to prove that his injuries were due to the airline’s negligence. For example, the domestic passengers might need to prove that the flight crew could have reasonably avoided the turbulence but didn’t. That will be difficult — apparently nothing more than light turbulence was reported in the area.
The injured cabin crew cannot sue their employer due to workers compensation laws. They may be able to proceed against others responsible for the encounter, such as the weather reporting agency used by the airline. In appropriate circumstances, the crew members can also sue the United States government if Air Traffic Control should have advised the flight of the upcoming turbulence. Again, however, reports are that there is no reason to believe the turbulence could have been foreseen.
A passenger suffered from lung disease. The airline denied him the use of his supplemental oxygen. As a result, six months later, the passenger died.
The family sued the airline within two years of the passenger’s death. Normally, that’s within the statute of limitations. But because the flight was an international flight, the Montreal Convention applied. And the Montreal Convention requires suits to be brought within two years of the aircraft’s arrival at the destination, not two years from the injury or death. Because the family’s claim was filed two years and three months after the plane landed, the trial court dismissed the suit as being brought too late. The Ninth Circuit Court of Appeals agreed.
The Convention is rooted in a one-sided deal struck many years ago to protect a fledgling aviation industry. From the Convention’s venue restrictions, to its limitation on recovery for emotional distress, the Convention leads to results that offend any sense of basic justice or fair play.
The Convention’s time limit for bringing suit is just one more unfair provision. Let’s say that a passenger is badly injured in an accident and dies from complications three years later. It would have been impossible for the passenger’s family to bring a lawsuit within two years from the aircraft’s arrival, because the family’s claim would not have accrued by then. In that situation, even though the airline caused the death, the family would have no recourse at all.
One justice, Justice Pregerson, dissented noting the Convention was unjust.
Because of the unfair and unconscionable result in this case and perhaps others, I hope that the Montreal Convention will be revisited and revised to protect families like the Narayanans.
That won’t happen any time soon. Even if there was widespread international support for amending the Convention – and there isn’t – the process would take many, many years.
The case is Narayanan v. British Airways.
Someone changed the course of Flight MH370 and turned off the aircraft’s transponder. Turning off an aircraft’s transponder makes it more difficult for the plane to be tracked by radar. A hijacker with even minimal flight training would have known that.
But there is one wrinkle. The transponder was reportedly turned off when air traffic control was in the process of a “handoff” from Malaysian Air Traffic Control to Ho Chi Minh City Control in Vietnam. At that moment, the aircraft was in the shadows: on the outskirts of Malaysian radar coverage and just entering Vietnam radar coverage. The crew had said goodbye to Malaysian air traffic control, but hadn’t yet established contact with Ho Chi Minh City Control. If a crew wanted to disappear, that would be an ideal time to pull it off. Only the most sophisticated hijacker would know that.
Airline’s Obligation to Compensate Family Members
An airline’s obligation to compensate the families of those lost in the crash of an international airliner is governed by an international treaty known as the Montreal Convention. The Montreal Convention requires the airline to compensate the families of those lost whenever the crash was the result of an “accident.” An “accident” is defined as “an unexpected or unusual event or happening that is external to the passenger.” Whether the crash was caused by a pilot’s wilful misconduct, a hijacking, or even a terrorist attack — it doesn’t matter. The crash counts as an accident and the airline is liable.
Cap on Airline Liability
An airline is strictly liable for a family’s loss up to 113,100 “Special Drawing Rights,” an amount equal to about $175,000. The airline can avoid liability for sums exceeding that amount only if it can prove it was totally “free from fault.” That is usually an impossible task for an airline, even if the crash was caused by a terrorist. The air carrier can seldom show that there was nothing it could have done to avoid the accident. It’s the problem of proving a negative. Thus, if in fact flight 370 was lost in a crash, it’s unlikely the Convention’s “cap” on liability will come into play.
More in my interview appearing in the Malaysian press.
Asiana Flight 214’s crash landing and the events that followed were traumatic experiences for all aboard. Even some of those who suffered no physical injury will struggle with emotional injuries for months if not years to come.
Normally, a passenger would be entitled to compensation for all the emotional distress suffered, regardless of whether the passenger was physically injured. But under the Montreal Convention, Asiana is not liable for a passenger’s emotional distress, regardless of how severe, unless the passenger has also sustained a physical injury. Thus, those passengers who managed to evacuate without being physically injured will likely be left with no rights against Asiana at all.
What if, in addition to severe emotional distress, a passenger sustained a relatively minor injury, such as a cut on a leg or a twisted ankle? Can that passenger recover for her emotional distress then?
Most courts say no.
Jack v. Trans World Airlines, involved TWA Flight 843. The aircraft was headed to SFO from JFK, but aborted its takeoff and crashed. Fire destroyed the plane but everyone survived. Many passengers had minor physical injuries. The federal court in California ruled that passengers could recover damages for the emotional distress stemming from their physical injuries, but not the emotional distress caused by the experience of crashing.
The emotional distress recoverable is limited to the distress about the physical impact or manifestation, i.e., the bodily injury. Recovery is not allowed for the distress about the accident itself.”
As described here, passenger claims against Asiana Airlines are limited by the Montreal Convention. But any claims the victims’ may have against a manufacturer of the aircraft or its component parts are not.
NTSB Chairman Deborah Hersman reported that evacuation slides opened inside the passenger cabin. The slides are, of course, designed to open outside the cabin. Passengers (or crew) who were injured by the slides may be entitled to compensation for those injuries from the appropriate manufacturers, if it is proven that the slides malfunctioned because of a defect rather than an error on the part of the flight crew. Those sorts of claims would be governed by U.S. product liability law, not by the Montreal Convention.
Because Asiana Flight 214 was international, lawsuits against the responsible airline are governed by the Montreal Convention. The Montreal Convention strictly limits where a passenger may bring suit. To bring suit against an airline in a U.S. court, the injured passenger must be a U.S. resident, the passenger’s ticket must have been issued in the US, or the trip must have had a final destination in the US. As discussed here, that means that many of the tourists who were victims of Flight 214 may not qualify to sue Asiana in the US.
The Montreal Convention also permits victims to sue the responsible airline in the country in which the airline’s principal place of business is located. In this case, that doesn’t help the victims because Asiana Airlines’ principal place of business is in Korea.
But some foreign passengers may have purchased their tickets through Asiana’s code-share partner, United Airlines. The Montreal Convention allows a passenger to sue not just the “actual carrier” (Asiana), but also the “contracting” carrier (the code share partner who issued the ticket). For some passengers, the "contracting carrier" may have been United Airlines. United Airlines’ place of business is in the U.S. That means that passengers who purchased a ticket from United may sue in the U.S. regardless of whether they qualify to sue Asiana here.