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Global Overview

Andrew J Harakas, Jeff Ellis, Chris Carlsen and Kevin Sutherland

Clyde & Co LLP

Tuesday 03 December 2019


Since the beginning of passenger air travel, states have recognised the need for uniform international rules with respect to liability. In light of this, treaties addressing various aspects of potential carrier liability to its passengers as well as ground victims have been drafted and adopted by states.

While some of these treaties have been widely accepted (eg, the Warsaw or Montreal Conventions), others have not (eg, the Rome Convention). In fact, there has been a recent trend questioning the need for some treaties given that aviation law has developed locally to include universally recognised basic legal principles and rights, arguably eliminating the need for precise uniformity. Even for areas of law governed by treaty, uniform application and interpretation by the courts of some states is not necessarily guaranteed.

Of course, not all areas of the law lend themselves to uniform treatment. Areas such as recoverable damages, who can sue, the litigation process and procedural law remain dependent on law. Thus, any discussion of carrier liability also needs to consider the domestic laws of each relevant state.

The articles contained herein serve as a useful guide in highlighting where the law is uniform and where differences exist among the various states considered.

The Warsaw and Montreal Conventions

The first treaty to address the rights and liabilities of the passengers and carriers was the Warsaw Convention of 1929, which had two primary goals: to establish worldwide uniform laws for claims arising out of international aviation accidents and to limit the liability of the air carrier in order to protect the then fledgling airline industry from the devastating effects of unlimited liability for air disasters. With 152 parties to the Warsaw Convention, it is one of the most widely adhered to and litigated treaties in the world.

The primary articles relating to carrier liability for passenger injury or death under the Warsaw Convention are articles 1, 17, 20, 21, 22, 24, 25, 28 and 29:

  • article 1 sets forth the applicability and scope of the Warsaw Convention;
  • article 17 creates a cause of action and the liability conditions for passenger death or bodily injury;
  • article 20 provides that the carrier shall not be liable if it proves that it has taken ‘all necessary measures’ to avoid the damage;
  • article 21 contains a defence based on the contributory or comparative negligence of the passenger;
  • article 22(1) limits the liability of a carrier for passenger injury or death to US$8,300 unless the injury or death was proximately caused by the ‘wilful misconduct’ of the air carrier or its employees within the meaning of article 25 of the Convention;
  • article 24 renders the Warsaw Convention exclusive and refers the determination of damages to local law;
  • article 28 sets forth four places where an action for damages must be brought; and
  • article 29 sets forth a two-year period of limitations for the commencement of actions.

The Warsaw Convention, however, has been subject to a patchwork of amendments and supplemental ‘private’ agreements among air carriers (this patchwork often is referred to as the Warsaw System of liability) with varying degrees of acceptance by the states. The primary reason for these amendments was the dissatisfaction with the low limits of liability for passenger injury and death (US$8,300). This patchwork resulted in disunity in the rules applicable to passengers even on the same flight.

Thus, in May 1999, the International Civil Aviation Organization (ICAO) adopted the Montreal Convention, which was intended to modernise and replace the Warsaw System of liability. The Montreal Convention contains few ‘new’ principles and essentially consolidates the existing Warsaw System into a single treaty revising various articles in accordance with modern realities and concerns.

The most significant changes relate to the goals of the Convention and the extent of the carrier’s liability. While uniformity was a goal of both treaties, the purpose of the Warsaw Convention also was to protect the fledgling aviation industry, whereas one of the goals of the Montreal Convention is to provide passengers full recovery for their compensatory damages. Thus, unlike the Warsaw Convention, the Montreal Convention:

  • removes all limits on recovery for passenger death or injury (article 21(1));
  • imposes almost strict liability on carriers for the first 113,100 special drawing rights (SDR) of proven damages in the event of passenger death or injury and for damages. In excess of 113,100 SDR, the carrier can exclude its liability only it if proves that the damages were not caused by the carrier or caused solely by the fault of a third party (article 21(2)); and
  • expands the bases for jurisdiction for claims relating to passenger death or injury to permit suits in the passenger’s principal or permanent residence if certain conditions are met (article 33(2)).

To date, there are 136 states party to the Montreal Convention.

Consistent with the goal of uniformity, many courts interpreting the Montreal Convention often look to existing Warsaw Convention case law, which the Montreal Convention drafters intended to preserve by adopting similar language in the text of the treaty (eg, the article 17(1) conditions for liability – ‘accident’ and ‘bodily injury’, embarking or disembarking). Most states will also consider leading cases from other states when interpreting the Conventions. However, notable differences remain, often based on the nature of the legal system (eg, civil law v common law) or the Convention’s relationship with existing local law principles. For example, not all states:

  • apply the doctrine of forum non conveniens;
  • consider the Convention to be exclusive of local law; or
  • interpret the Convention’s time limitation in the same manner.

Damages and liability limits

Neither the Warsaw Convention nor the Montreal Convention set forth a uniform rule with respect to the types of recoverable compensatory damages, who can sue or who can recover. In fact, the drafters of the Warsaw Convention sought to address this issue but were unable to arrive at a consensus as they are uniquely grounded in local law (Warsaw Convention, article 24; Montreal Convention, article 29). These issues were left to be resolved by the applicable local law (often after a choice of law analysis).

On the issue of punitive damages, these are not allowed in many states. The Warsaw Convention, by judicial interpretation, and the Montreal Convention, expressly in article 29, prohibits the recovery of punitive, exemplary or non-compensatory damages. Outside the Convention context, many states do not recognise them.

Liability for ground damage

In 1933, shortly after the Warsaw Convention was adopted, states adopted the Convention for the Unification of Certain Rules Relating to Damage Caused by Foreign Aircraft to Third Parties on the Surface to address damage caused to third parties on the surface during the flight of aircraft. The purpose of this Convention was to ensure adequate compensation for persons who suffer damage caused on the surface by foreign aircraft.

However, only 20 states signed this Convention. This Convention was amended in 1952 by Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface (commonly known as the Rome Convention). The Rome Convention never received widespread acceptance, with only 49 signatories (the United States not being among them).

The Rome Convention itself was subject to revision and, in 2009, ICAO adopted the Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft and the Convention on Compensation for Damage Caused by Aircraft to Third Parties. Neither of these Conventions have received the required number of signatures for ratification and entry into force.

While there have been various reasons for the reluctance of states to adopt these Conventions, the view among some states is that the issue of ground damage is adequately addressed by their existing national law, which often creates unlimited strict liability.

Liability for unruly passengers and crimes

The liability of the carrier for injury or death caused to passengers as a result of an unruly passenger or terrorist event can fall within the ambit of the Warsaw or Montreal Conventions if it occurs during ‘international carriage by air’.

However, when the Warsaw or Montreal Conventions do not apply, the liability of the air carrier will be governed by local law. Many states have adopted specific domestic laws addressing the carrier’s rights and liabilities, but some have not, leaving the claim to be addressed by the general negligence law of the state.

Also relevant is the Tokyo Convention of 1963, which has been almost universally ratified (186 parties). While the Tokyo Convention addresses the liability of the carrier for actions taken in restraining or removing an unruly passenger, it does not address liability with respect to other passengers who may have been injured as a result. The carrier’s liability in such a case would be governed by the Warsaw or Montreal Convention or local law. In 2014, a Protocol to amend the Tokyo Convention was adopted by ICAO. The Protocol creates mandatory jurisdiction for the states of landing and operator, encourages states to initiate proceedings against the offending passenger, empowers in-flight security officers to take action under the same conditions and immunities as the aircraft commander, and allows for the recovery of damages under national law from the offending passenger. The Protocol requires 22 ratifications or accessions to enter into force. To date, 21states have ratified or acceded to the Protocol.

Government liability

Sovereign immunity is a universally protected and accepted principle and can provide immunity to a state from civil suit. However, many states do not view this as a complete bar to civil suits caused by the fault of government employees. Some states simply allow suits to proceed as any other civil suit, while others have enacted legislation waiving this immunity for certain types of acts. The circumstances, conditions and degree of this waiver of immunity depend on the particular state at issue.

Contract of carriage

An air carrier’s terms and conditions in the contract of carriage are generally enforceable as any other contract if the passenger is aware of them and, in some states, accepts them, provided they are not contrary to any other national law. However, it is equally clear these terms and conditions cannot vary or alter the rules set forth in the Warsaw or Montreal Convention.

Accident investigations

The investigation of aviation accidents is critically important to aviation safety. Article 26 and Annex 13 to the Chicago Convention have gone a long way to create uniform rules requiring the investigation of aviation accidents and setting forth which state has the primary investigative authority. The precise investigatory process, however, is an issue subject to the local laws of each state and differences exist, especially with respect to the discovery and use of accident investigation materials and reports in litigation.

Family assistance

The issue of providing assistance to the victims and their families of an aviation disaster has become of significant importance during the past 25 years.

In 1996, the United States adopted the Aviation Disaster Family Assistance Act, which was extended to foreign air carriers in 1997. Since then, several other states have adopted some type of legislation or voluntary codes addressing family assistance to aircraft victims and their families. In 2013, ICAO issued a Policy on Assistance to Aircraft Accident Victims and their Families. Of course, the nature, types and degree of assistance depends on the relevant state. However, even when there is no legal obligation, states and air carriers agree that some type of assistance should be provided.

Consumer protection

Another area of the law that has recently been gaining traction around the world relates to passenger rights or consumer protection. Depending on the state involved, the legislation can address denied boarding compensation, compensation for delayed or cancelled flights, tarmac delays and assistance to persons with reduced mobility. Even where there is no legislation, many carriers have adopted voluntary commitments to clarify or improve their policies or practices with regard to certain customer services often in response to public pressure and to enhance the customer experience.

While ICAO has adopted certain principles and policy guidance, to date there has been no uniformity in this area and no treaties have been adopted. Thus, the duties of the carrier with respect to passenger rights or consumer protection vary among the states.


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