In recent months, the media has reported numerous unfortunate instances in which the landing of major commercial aircraft have resulted in accidents and potential injuries to passengers on board the aircraft. For example, Asiana Airlines flight 214 was involved in a crash landing at San Francisco International Airport on July 6, 2013. Two weeks later, a Southwest aircraft’s landing gear collapsed upon touch down, allegedly injuring passengers on board the flight. In the wake of aviation incidents, such as the ones involving Asiana flight 214 or Southwest flight 345, questions come to mind regarding the potential liability for the airline as well as the laws that may apply to any claims filed by passengers. 

The first question in any legal analysis for an aviation claim requires consideration of each passenger’s individual itinerary to determine whether domestic or international law will apply. In the event the aircraft was involved in an international flight, an international aviation treaty, such as the Montreal Convention, may govern the claims. Even when an aircraft is involved in a domestic flight, international law may still apply if any of the passengers have a connecting flight to or from an international destination. The International Civil Aviation Authority maintains a current listing of all parties that are signatories to the Montreal Convention (as well as any other international aviation treaties) and the date on which the treaty goes into effect in each country. See http://www.icao.int/secretariat/legal/List%20of%20Parties/Mtl99_EN.pdf. When passengers are involved in travel between the United States and any signatory country, the Montreal Convention will govern their claims as long as the injury-causing event occurred while the passenger was on board the aircraft or in the course of embarking or disembarking. 

In order to recover for any injuries that take place during an international flight, the Montreal Convention has a threshold requirement of a “bodily injury.” If the passenger does not sustain a bodily injury, the passenger will not be entitled to recover any damages against the airline. Even if a passenger has a near-death experience on board an international flight and desires to assert a claim for emotional harm damages, such as post-traumatic stress disorder, that passenger may not assert a claim against the airline unless the passenger sustains and proves a bodily injury. Failure to prove a bodily injury under the Montreal Convention is a failure to prove one’s claim.

Even though the Montreal Convention provides for the recovery of any bodily injuries sustained in an aviation accident, the same is not necessarily true for emotional harm damages, such as depression or post-traumatic stress disorder. An overwhelming amount of courts interpreting the Montreal Convention, as well as its predecessor treaty the Warsaw Convention, have determined that passengers do not automatically recover damages for emotional harm. Courts have interpreted this international treaty to allow recovery for emotional harm damages only if they are caused by or stem from the bodily injuries sustained in the accident. For example, a passenger who suffers severe facial scarring as a result of an accident and is depressed because of his or her altered appearance will likely recover emotional harm damages as it is the bodily injury, the scarring, that led to the depression. However, a passenger who is traumatized by the accident and the belief, in the moment of the accident, that he or she may die is not entitled to recover such damages. This is because such emotional damages are not caused by any bodily injury. Rather, they are caused by the fear of the accident. Fear of the accident and a subsequent fear of flying are not recoverable under the Montreal Convention.

Once a passenger’s damages have been identified, the Montreal Convention provides strict liability against the airline up to 113,100 Special Drawing Rights (SDRs) of provable damages. SDRs are a form of international currency. The burden is on the plaintiff to prove damages. A passenger is not automatically entitled to the 113,100 SDRs unless he or she can prove this amount. For example, it is unlikely a passenger who sustained minor cuts, scrapes, or bruises will prove damages reaching 113,100 SDRs. That passenger may only recover the amount of compensatory damages he or she can prove.

An airline may also defend against its strict liability if it proves the passenger was in whole or in part at fault for his or her damages. Above the 113,100 SDRs, the airline may defend any passenger claim by proving it was not negligent or that a third party was at fault for the injuries. In the event the airline proves it was not at fault, a passenger’s recovery against the airline will be capped at this amount. This is true regardless of whether the passenger’s damages exceed 113,100 SDRs.

Although there may be a great amount of uncertainty and confusion in the moments after an unfortunate aviation disaster, there is no uncertainty as to the rights of passengers and potential liability and defenses of an airline. The Montreal Convention, which was designed to create uniformity on an international basis, has clearly defined rules that will govern any personal injury damages a passenger claims to have suffered during an international flight.