by Ladd Sanger

Heading up our Dallas office, Sanger has litigated numerous cases involving international flights.

Goodbye Warsaw...Hello Montreal. And good riddance to an outdated convention.

Starting in 1929, the Warsaw Convention governed the legal liabilities of international commercial air travel. Over the next 70 years, numerous revisions and additions resulted in a confusing patchwork of conventions, protocols, and inter-carrier agreements with different effective dates and signatories.

One of the chief weaknesses of the Warsaw Convention was a limitation on recoverable damages of amounts over $75,000, unless plaintiffs could prove “willful misconduct” on the part of the airline.

In May 1999 the International Civil Aviation Organization (ICAO) convened in Montreal to write a new convention. The resulting “Montreal Convention” went into effect November 4, 2003, and has been ratified by over 60 parties worldwide.

IMPORTANT CHANGES

Two of the most significant aspects of the Montreal Convention are its two-tiered liability framework and the addition of a fifth jurisdiction.

Under the Montreal Convention, the carrier is absolutely liable for the first 100,000 Special Drawing Rights (SDRs), equivalent to about $152,000 U.S. (current exchange) if an accident causing death or injury took place onboard the aircraft or in the course of embarking or disembarking.

To this first level the carrier’s only defense is contributory negligence. To recover over 100,000 SDRs, the burden has been shifted to a carrier having to disprove a presumption of negligence or other wrongful act or omission. Previously, a plaintiff had to prove willful misconduct.

Damages are now limited to compensatory damages, as recovery of punitive or other non-compensatory damages are specifically excluded.

FILE LAWSUITS FROM HOME

The Montreal Convention added a fifth venue in which a suit may be filed. A plaintiff may now bring a case in the location of the passenger’s principal and permanent residence at the time of the accident. Under the Warsaw Convention, there were instances when a passenger could not bring a case in their home domicile, causing them undue financial and logistical burdens.

The Montreal Convention brought the outdated Warsaw Convention and its host of tacked-on fixes into a more fair and workable system for today’s global climate. While injury cases of less than 100,000 SDRs will be relatively straight-forward, cases that involve actual air crashes will likely result in lengthy and technically complex litigation.

Now that passengers are entitled to full compensatory damages, there is more of an incentive for carriers to defend their conduct by looking at aircraft manufacturers and other third parties to which the convention will not apply.

Long overdue, the Montreal Convention is a step in the right direction.