Other countries severely limit the compensation that may be awarded in 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, and society."  Or for "pain and suffering."  That’s why in almost all situations the best venue for an Asiana Airlines Flight 214 victim to seek compensation will be the United States. 

US Courtroom

But any suit against the Asiana Airlines (as opposed to some other party who may have contributed to the crash) will be governed by the Montreal Convention. The Montreal Convention allows passengers or their family to sue Asiana Airlines in the United States 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; or
  3. The United States was the passenger’s "principal and permanent residence."

Unless the passenger can satisfy one of these three requirements, he cannot sue Asiana Airlines in the United States.

 

Asiana Airlines Flight 214 was an international flight between Seoul and San Francisco.  That means the airline’s obligation to compensate its passengers for their injuries is governed by an international treaty known as the Montreal Convention. Here are some of the Convention’s important points, as they apply to Flight 214:

  • The Airline must compensate its injured passengers as long as the crash was caused by an "accident." The Convention defines "accident" to include any unexpected event; from an encounter with bad weather, to poor planning on the part of the pilot, to mechanical failure. This crash certainly qualifies as an "accident."  The exact cause of the accident doesn’t matter. The passenger does not need to prove that the airline was negligent, or that the airline did anything wrong at all. The airline is automatically required to compensate any injured passenger.
  • A passenger who was physically injured is entitled to compensation for his or her emotional distress as well as for the physical injuries. However, a passenger who was not physically injured is not entitled to compensation for emotional distress, no matter how severe the emotional distress may be.
  • The cap on an Airlines’ automatic liability under the Montreal Convention is US$170,000. Asiana Airlines may avoid liability for amounts exceeding US$170,000 only if it proves that it was not in any way "negligent or at fault."  In this case, it appears that it will be impossible for Asiana to make such a showing. Therefore, there will be no artificial "cap" on Asiana Airline’s obligation to compensate the passengers who were physically injured in the accident

A flight attendant placed a cup of hot coffee on passenger Lourdes Cervantes’ tray table.  Then the passenger in the row ahead of her reclined.  That caused the coffee to spill on Cervantes lap. Cervantes suffered second degree burns.  She sued Continental

Does she have a case? 

Domestic travelers can hold the airline liable only if their injuries are caused by the Continental Coffee Suitairline’s negligence.  In other words, the airline is not responsible unless it was careless.  So if Cervantes was on a domestic flight, it’s hard to see how she could win.

But Cervantes was flying on a flight from Madrid, Spain, to Newark, New Jersey.  Because she was traveling internationally,  the Montreal Convention applies. Under the Convention, whether the airline was negligent is for the most part irrelevant.  All that matters is whether the passenger was injured by an "accident."

The U.S. Supreme Court has defined “accident” to mean “an unexpected or unusual event or happening that is external to the passenger.”  Does Cervantes’ situation meet the definition? Yes, according to a California federal court that ruled on a nearly identical case involving hot tea rather than hot coffee: 

The slide of the tea off of the tray table was unusual and unexpected. Although it may be common for an airline seat to shake when its occupant moves around, it is not common for beverages placed on the tray table behind that seat to be so jolted by the movement that they fall onto another passenger. It is the failure of the tray table to hold beverages securely despite passenger movement in the seat in front that is unexpected.

Looks like Cervantes’ case is a winner.

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.

Domestic travelers can hold the airline liable only if their injuries are caused by the airline’s negligence. But if the passenger is traveling internationally, then treaties called the Montreal and Warsaw Conventions apply. Under the Conventions, whether the airline was negligent is for the most part irrelevant. An airline is responsible only if the passenger’s injury was caused by an “accident.” So, for an international traveler, the key question is what, exactly, qualifies as an “accident.”

The U.S. Supreme Court has defined “accident” to mean “an unexpected or unusual event or happening that is external to the passenger.” Certainly, an aircraft running off the end of the runway would qualify as an accident. But there are plenty of injury-producing events which present more difficult questions.

Here’s what the courts have said:

  • Accident: A passenger is injured when a fellow passenger opens an overhead bin and liquor bottles fall out.
  • Not an Accident: A passenger slips and falls on plastic bag left in aisle (reasoning: after long flight, it would not be “unusual” to encounter trash in the aisle).
  • Accident: A passenger burned by tea when tea spilled from tray table because the passenger seated directly in front of the injured passenger caused a “jolt” that upset the tray table.
  • Not an Accident: A passenger falls while trying to walk up a broken escalator.
  • Accident: A passenger seated near the smoking section asks to be moved, the flight attendant refuses, the passenger has an asthma attack and dies.
  • Not an Accident: A passenger dies from an airline-induced blood clot.
  • Not an Accident: One passenger falls on and breaks the arm of another passenger (reasoning: the passenger decision to try to climb over his fellow passenger not related to the aircraft’s operation.)

More at Chris Cotter’s excellent article: Recent Case Law Addressing Three Contentious Issues in the Montreal Convention.

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.

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. 

A cabin suddenly fills with fumes.  Passengers get ill.  The fumes eventually clear.  But for some, the symptoms persist long after the flight is over.  Others will first develop symptoms weeks or months later, and may not even relate their symptoms to their flight.  These passengers are all the victims of what has become known as a "fume event."

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. Bleed Air Schematic According to the Wall Street Journal:

Airline companies and jet manufacturers say that fume events are rare, and that when they do occur, air quality still exceeds safety standards. But unions representing pilots and flight attendants say the chemicals entering the aircraft cabin can endanger the health of flight crews and passengers.

For years, the airlines denied that fume events occurred at all  Then, the airlines admitted the events occurred, but denied that they were dangerous.  But fume events appear to be happening with more and more frequency, and the airlines seem to be more willing to admit that there is a danger to the flying public.  Regardless, in March the US Senate approved a measure that would require the FAA to study cabin air quality generally and fume events in particular.

The increased focus on fume events is for the most part due to injuries that American Airlines flight attendant Terry Williams suffered in April 2007.  She recently filed a lawsuit against Boeing, the manufacturer of the aircraft on which she was flying.  Williams is represented by Alisa Brodkowitz, a prominent aviation lawyer in Seattle, who is perhaps the nation’s leading expert on fume events.

What about the passengers of American Airlines Flight 49, who were involved in a fume event today while travelling from Paris to Dallas-Forth Worth? 

Because the flight was international, the Montreal Convention applies.  The Convention requires the airlines to offer fair compensation to anyone injured as a result of an "accident."  An accident is an "unexpected or unusual event or happening" on board the aircraft that is "external to the passenger."  A fume event would likely qualify (though some airlines contend that fume events are "normal".)

The flight attendants will have a tougher go of obtaining compensation for any long lasting injuries they might have suffered.  They can’t sue the airlines due to workers’ compensation laws.  That means their only claim is a product defect claim against Boeing, the aircraft’s manufacturer.

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.     

The families of Michael and Anne Harris, the American couple on board Air France Flight 447, filed suit this week in Houston federal court.  It’s the first lawsuit arising from the crash. The most frequently asked questions about this suit are:

Question:  Aren’t the families jumping the gun?  The Air France Fuselage Recoveryblack boxes haven’t yet been recovered, and may never be.  For all we know, this may have been the result of a chance encounter with a thunderstorm.  The crash may have been an unavoidable accident with no one to blame.

Answer: The Montreal Convention is the international treaty that governs all claims against airlines involving international air travel.  Under the convention, Air France is responsible even if the the crash was "just an accident."  As a result, Air France must compensate the families for their loss regardless of what the cause of the crash turns out to be.

Question: Flight 447 was from Rio de Janeiro to Paris on a French airline.  Why should the families be allowed to sue in Houston, of all places?

Answer: The Montreal Convention allows the families to sue in the country of the passenger’s "principal and permanent" residence.  The families say that, though the couple was living in Brazil, the couple maintained a permanent residence in The Woodlands, a suburb of Houston.  If that’s so, the families have a good argument tha they are entitled to sue in Houston.

Question: Why did the families file suit in federal court, rather than state court?

Answer: Many aviation lawyers believe that state courts are more favorable than federal courts for family members who have suffered a loss.  So victims’ attorneys often prefer to sue in state court.  However, a fairly new federal statute requires almost all cases arising from large air disasters to be heard in federal court.

More Air France Flight 447: