Aviation Delay – Pain, Emotional Harm and Mental Suffering Not Included in Damages Recoverable

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The Montreal Convention gives international airline passengers limited rights and leaves the airlines with little in the way of liability exposure.

Delays and cancellations of international flights have stranded and antagonized travelers flying out of Dulles, Reagan National, and Baltimore Washington Airports.  At Abrams Landau, Ltd., we help people with permanent injuries due to the negligence of airlines, their employees, and airport personnel. We have recovered money damages for physical injuries, lost earnings, and mental anguish as the result of unsafe conduct in the air, on the runway, and even inside the international air terminals.

Can I Recover Damages Arising from Delay or Cancellation?

Sometimes our Herndon law firm is contacted by passengers who have not suffered a physical injury, but whose travel plans have been delayed or ruined. Unfortunately, international law gives passengers limited rights and leaves the airlines with little in the way of liability exposure. The Montreal Convention is an international treaty affecting the rights of passengers traveling internationally among the 104 countries that signed this agreement. The Montreal Convention governs any delay claims stranded international passengers may pursue against an airline.

Damages Recoverable For International Air Travelers Under the Montreal Convention

Once it has been established that a passenger’s claim for delay damages would fall under the Montreal Convention, and that the airline did not take all reasonable measures to avoid the damages, or that it was impossible for it to take such measures, the passenger can then determine the type and amount of damages available pursuant to the Montreal Convention.

The amount of damages available to a passenger is contained within the treaty, and is less than $10,000. An airline’s liability to pay delay damages may occasionally exceed this amount in the rare instance in which an air passenger can prove reckless misconduct on the part of the airline.

Economic Loss

In general, international passengers may recover for economic losses due to delays. Courts have interpreted the Montreal Convention to allow for the recovery of compensatory damages, including physical and financial injuries as well as damages for “inconvenience.” However, the treaty does not permit the recovery of emotional harm damages, such as “pain and suffering.” The reasonably foreseeable compensatory damages that are encompassed within the treaty generally include out-of-pocket expenses, economic damages due to lost work, compensation for physical illnesses, and damages related to inconvenience. Just as passengers may not recover for emotional harm damages, they may not recover for the cost of their airfare.

In the 2004 Connecticut case of Ikekpeazu v. Air France, the plaintiff was a busy surgeon who claimed he was required to cancel surgeries, procedures, and consultations he was scheduled to perform during his nearly week-long delay. The court held that the plaintiff’s “allegations of financial injury resulting from the delay in his return to practice provide[d] a basis for a claim” under the Montreal Treaty. In addition to recovery for economic losses related to lost business opportunities, courts will also allow passengers to recover damages for consequential out-of-pocket expenses directly attributed to the delay. For example, the court may allow for taxi fare for the cost of the plaintiff’s transportation from the airport to their home to be a recoverable out-of-pocket expense. In Harpalani v. Air India, Inc., another federal district court determined that recoverable out-of-pocket expenses can also include the cost of meals and lodging, inconvenience, and telephone expenses.

Prepaid Vacation Expenses

Although prepaid vacation expenses are generally recoverable, courts have not extended this category of damages to include reimbursement for the cost of the delayed flight if the passenger ultimately used the ticket to complete his or her travels. In one case, the defendant airline transported the plaintiff roundtrip from China to San Francisco, albeit with a delay, eliminating the cost of the round-trip ticket as an element of the plaintiff’s damages claim. The court noted that the Montreal Convention only allows for recovery for damages occasioned by a flight delay, and found that the plaintiff did not sustain an economic loss occasioned by the delay as he actually received the benefits of his round-trip ticket. In so ruling, the court relied on the holding in the 2000 New York federal court case of Fields v. BWIA Int’l Airways, Ltd., in which the district court noted that the plaintiff actually flew to her destination the day following her scheduled departure and, therefore, could not claim total nonperformance under the contract to be entitled to damages.

Know Your Rights

International passengers seeking any form of reimbursement against an airline for delays should be familiar with the limited rights available for recovery. Given that the Montreal Convention specifically regulates and limits airline liability, careful consideration of the burden of proof, defenses, and available remedies is necessary in deciding whether to make a delay damage claim.

At Abrams Landau, Ltd.., we help people with permanent injuries due to the negligence of airlines, their employees and airport personnel.