There’s a treaty for injured international air travelers. Injuries and accidents during an international flight occur, despite the airlines best efforts regarding safety and first aid training. When a passenger on a flight is injured, their right to compensation will probably be governed by an international treaty. The treaty between countries that international airline injuries generally fall under is called the Montreal Convention.
The Montreal Convention has a long, legal sounding official name (“The Unification of Certain Rules for International Carriage by Air”). This treaty controls airline responsibility for injuries or death that may occur during most international flights. There was a prior treaty, known as the Warsaw Convention, that the Montreal Convention replaced. The Warsaw Convention was an agreement among the countries that governed international airline injury cases for some 80 years. The Montreal Convention was ratified by the United States in 2003 in order to create certain consistencies, efficiencies and predictability for the airlines. It is also helpful to passengers with injury and fatality claims. However, understanding the balance of an international traveler’s rights versus the Treaty’s limitations is important to anyone involved in a Montreal Convention case.
WHEN IS AN AIRLINE LIABLE?
The Montreal Convention (Article 17) sets out when an airline is liable. A citizen of France, injured traveling between Miami International Airport and Washington Dulles International Airport on only a domestic ticket, would not be able to avail themselves of the benefits of the Montreal Convention. The injured passenger may be from another country and the airports were all “International,” but the itinerary itself was not. An airline trip that is entirely within the United States is not subject to the Montreal Convention.
On the other hand, a DC resident flying from Reagan Airport to Newark Airport in New Jersey, and then on to Frankfort, Germany round trip, who was injured during those flights, would likely be able to avail themselves of the Montreal Convention.
The Montreal Convention has three requirements at Article 17 to determine coverage.
It provides that an airline is liable for:
1. personal injury or death of a passenger,
2. on an international flight
3. between two member nations.
Currently, there are 150 member nations, which brings most commercial air travel around the planet under the Convention.
In order to succeed in making a claim under the Convention, the passenger must prove:
A. that the injury or death resulted from an “accident,” AND
B. that the accident took place on board the aircraft.
C. “in the course of any of the operations of embarking or disembarking.”
In the 1985 United States Supreme Court case of Air France vs. Saks, the high court defined “accident” under the Montreal Convention as “an unexpected or unusual event or happening that is external to the passenger.” Because this definition is less than crystal clear, the courts have broadly defined the Treaty’s coverage to include:
a. Aircraft hijackings,
b. passengers assaulting each other,
c. failure by an airline to provide proper medical attention to an ill passenger on an international flight.
However, self-inflicted harm, intoxication and drug overdose may not satisfy the requirements of an “accident in the air.”
With regard to the claims of injury while entering or leaving the aircraft during an international trip, according to experienced airline injury lawyer Doug Landau, the cases depend on “the facts on the ground.” When the accident happens outside of the plane, the question is whether the international passenger was in the “operation of embarking or disembarking.” The courts have not all been on the same page when trying to decide if the accident falls under the Montreal Convention, or not. The courts will often look at the following three factors:
1. the location of the passenger at the time of the injury;
2. what that passenger was doing at that time, and
3. the proximity of the passenger to the actual plane.
For example, a passenger who fell and was injured on wet stairs outside the airplane was found to have a claim under the Montreal Convention. However, if the international passenger de-planed, went through the terminal, past the TSA checkpoint and one-way security door, and was struck by an Uber, Lyft or airport taxi on the curb, they would likely not have a claim under the Montreal Convention. There is no hard and fast rule for determining whether an accident is actionable under the Convention. Landau notes that, “the facts and circumstances of each case need to be investigated. Consulting with an experienced personal injury attorney who has worked with airline injuries, airport cases and flight personnel may be in the best position to determine whether an injured air traveler has a winnable claim.”