An international treaty known as the Warsaw Convention controls the legal rights of international travelers to sue the airlines for injuries suffered on an airliner. The Warsaw Convention is 70 years old. The Convention was originally designed to protect the airlines against excess damage liability. The three most recent major airline disasters are TWA 800, Swiss Air 111 and Egypt Air 990. All involved international flights covered by the Warsaw Convention. This year the United States Supreme Court confirmed that the Warsaw Convention “exclusively” controls a passenger’s right of recovery in U.S. courts for “physical injuries” sustained on international flights.
The Warsaw Convention applies to passengers ticketed on an international itinerary even if the crash occurs on the domestic part of a continuous international trip. For example, let us assume an American citizen purchases a round-trip ticket in Seattle for a flight to Mexico City with a change of planes in Los Angeles. If a crash occurred during the Washington to California leg, the Warsaw Convention would still apply because that passenger was embarked on an international flight based on his ticketing to Mexico, although other passengers may have only been ticketed for the Seattle to Los Angeles domestic leg.
Until very recently and for almost 70 years, the families of internationally ticketed passengers killed in airline disasters were doubly traumatized. First, they lost a loved one in what was often a preventable accident. Second, they discovered a harsh economic reality — the maximum amount of money they could collect from the airline was $75,000 U.S. No matter how tragic the loss or how glaring the negligence, they could receive only $75,000, while the family of domestic passengers who died from the same crash could expect to collect millions in U.S. Courts. The only way around this liability limitation was to prove that the airline was guilty of “willful misconduct.” Many victims and their lawyers struggled in vain to satisfy this extremely difficult legal burden of proof. Only a few were successful, most notably in the Pan Am 103 disaster, where Pan American Airlines was found liable for willful misconduct in failing to prevent a bomb from being smuggled aboard Flight 103.
Last year, a United States Federal District Court in Florida found that American Airlines was guilty of “willful misconduct” for the 1995 Cali Columbia Flight 965, Boeing 757 flight disaster. Apparently, the airline’s pilots crashed into the mountains because they were confused as to their exact location while flying IFR. Based on the finding of “willful misconduct,” the Flight 965 plaintiffs expected to be able to collect the full measure of their damages. The families of the flight passengers were recently shocked when the United States 11th Circuit U.S. Court of Appeals reversed the Federal District Court Judge in Florida. The appellate judges held that the trial judge employed standards that were too liberal in enabling plaintiffs to establish that the airline was guilty of willful misconduct. Now without proof under the stricter test that the airline’s pilots knowingly flew recklessly, the families will face the traditional $75,000 liability limit.
The United States Signed A Treaty Agreeing to the Warsaw Convention
The Warsaw Convention was the result of a 1929 international air carrier meeting held in Warsaw, Poland, which resulted in a treaty ratified by the United States in 1934. The Convention was an agreement by the airlines to limit their liability for damages to victims of international airline accidents. The fear in 1929 was that a major airline disaster would put a fledgling airline out of business and result in a morass of conflicting legal claims under different countries’ laws. A positive benefit to society from the Convention was the creation of a uniform system of legal jurisdiction for handling international accidents involving physical injury, death and cargo loss. The airlines also achieved a direct pecuniary protection — a liability damage limit for injuries and death based on an artificial monetary unit called a Special Drawing Rights (SDRs.) The airlines agreed to limit their liability to $100,000 SDRs, equivalent in those days to about $8,300 (U.S.). Subsequently in!
1966, the limit was raised to $75,000 (U.S.) by the Montreal Agreement that amended the Convention. It was critical to the airlines and their insurers that the Warsaw Convention prevents victims from suing the airlines for punitive damages no matter how reckless the misconduct of the airline’s employees.
The Warsaw Convention also protected the airlines by limiting the countries in which the victims could bring a lawsuit. Only countries that qualified under the following requirements could have jurisdiction to rule on Warsaw Convention airline injury or death claims: (1) the place of business where the contract of carriage was entered into. (Usually the place where the tickets were bought), (2) the county which was the destination of the flight, (3) the domicile of the carrier, or (4) the carrier’s principal place of business. For 70 Years, a Huge Disparity Between Domestic and International Flights Existed in Airline Liability Law The family of a passenger who was ticketed for a domestic flight, who was physically injured or killed in a domestic airline accident, whether on a U.S. carrier or a foreign carrier, could sue the airline and collect full measure of compensatory damages permitted by the appropriate state law. Prior to 1997, the family of a passenger who was ticketed!
for an international flight, and was physically injured or killed in an international airline accident, whether on a U.S. carrier or a foreign carrier, could not collect the full measure of damages permitted by U.S. Laws. The plaintiff was limited to recovery of a mere $75,000 (U.S.) pursuant to the Warsaw Convention Treaty.
The Warsaw Convention applies only to the airlines and does not control damage claims by victims against other defendants. Thus, the manufacturer of the airliner and the manufacturer of sub-component parts or systems installed in the airliner can be sued without the Convention limitations. Airports, private security companies or other service providers can be sued outside the Convention unless they are found to be performing the airlines’ functions under The Convention. Even the United States government can be sued in U.S. federal courts without Warsaw Convention limitations, as long as the operational negligence of its air traffic controllers, or the non-policy making and non-discretionary functions of its government employees are found to be a cause of the disaster.
The inequity imposed on American passengers injured while traveling internationally was publicized by the efforts of leading aviation plaintiff attorneys to change the law in this area. The efforts of these attorneys coupled with the growing lobby by airline survivor groups applied intense pressure on legislators to achieve reform. These pressures led to threats by the United States to pull out of the Warsaw Convention and denounce the treaty. If the United States disavowed the Warsaw Convention, the treaty would unravel and the airlines of the world would be exposed to unlimited liability. There would be chaos in the courts and there would be no binding international treaty controlling which countries would have legal jurisdiction after an international airline disaster. The airlines of the world decided to engage in a little self-regulation to preserve the Warsaw Convention. The airlines struggled to preserve some of the important protections they enjoyed against claims by victims of airline disasters under the Convention. They called upon the International Air Transport Association (IATA) to come up with a plan.
Recently, the Airlines Voluntarily Entered Into an Intercarrier Agreement Waiving the $75,000 Liability Limit IATA in cooperation with the United States Department of Transportation sponsored an international intercarrier agreement on passenger liability that was adopted by airlines starting in 1997. Today, over 120 airlines have signed the agreement. The intercarrier agreement removes the $75,000 (U.S.) limit of liability and allows passengers to recover full compensatory damages for physical injury or death in an “accident,” according to the laws of their domicile, or place of permanent residence. After 1997, almost all the airlines have agreed that they can be sued for the entire amount of damages that a victim’s country of domicile would normally allow the family to recover. The victims only have to show that the airline was negligent in causing their injuries.
The airlines have only one defense against unlimited compensatory damage liability under the new agreement. They can try to prove that they took “all necessary measures” to prevent the damage. Under U.S. laws, airlines are held to the ‘highest duty of care” because they are “common carriers.” Air carriers have such high responsibilities because they hold themselves out to the public at large for common carriage by air. Theoretically given the “highest standard of care,” it should be easy to show an airline was negligent because it failed to live up to the standard of care.
Similarly, it should be extremely difficult for an airline to prove that it took “all necessary measures” to prevent the damage. Aviation lawyers have hypothesized that perhaps a missile shoot down, an unpreventable act of sabotage or some unforeseeable intervening cause of a crash would be the only circumstances in which an airline might successfully defend against unlimited liability for damages in a Warsaw Convention case.
After 1997, American Passengers Who Are Physically Injured On An International Flight Can Collect Up To $135,000
Another unique aspect to the newly modified Warsaw Convention is the fact that the airlines have strict liability up to $100,000 SDRs (a “Special Drawing Right” is a fluctuating composite unit of money) equivalent to approximately $135,000 for U.S. passengers. The $135,000 benefit is for physical injuries or death of international passengers suffered on the airline or while in the process of embarking or disembarking. The strict liability of the airlines for $100,000 SDRs in U.S. courts is in essence a “no questions asked” automatic entitlement to payment of the first $135,000 U.S. of their damages. Indeed, after the Swissair 111 disaster, Swiss Airlines, which was a signatory to the intercarrier agreement, set precedent by promptly paying $135,000 to each of the victims’ families of Flight 111, without in any way acknowledging its liability for the crash.
What About Offenses on International Flights Not Involving Physical Injuries?
Airline insurance defense lawyers have successfully defended the airlines and their insurers against various tort claims resulting from wrongdoing on international airline flights that do not rise to the level of an actual “accident.” The airlines have always taken the position that various transgressions that harmed passengers but were not “accidents” and did not involve physical injury were not payable under the Convention. The United States Supreme Court has supported the airlines on this point in a landmark decision this year. The Supreme Court has held that an “accident” for purposes of the Convention, means “an unexpected or unusual event or happening which is external to the passenger.” Thus, where the Warsaw Convention applies, international passengers will not be able to recover against the airline for emotional damage claims where there is no physical injury or for offenses involving the misconduct of other passengers and airline personnel. As an example of how confusing the laws can be: Just last year, the Ninth Circuit Court of Appeals in California paved the way for domestic passengers to bring garden variety tort claims (a “tort” is a civil wrong) in U.S. Courts resulting from incidents on domestic airline flights that do not involve “accidents” — just the opposite of international flights.
The Warsaw Convention Needs Further Improvements
The Warsaw Convention is still being modernized. Just last year (2000), major changes were incorporated in the 1999 Montreal Convention that is subject to ratification. Changes being made to modernize Warsaw Convention involve efforts to codify the question of joint liability for co-sharing carriers. Thus, the contracting carrier, the one that sells the ticket and the airline that actually conducts the flight may both be potentially liable under the newly modified Warsaw Convention. Additionally, the modernized Warsaw Convention may create a “Fifth Jurisdiction” wherein victims can bring a lawsuit in their country of domicile or permanent residence. The “Fifth Jurisdiction” would cure the problem of an American abroad who traveled on a foreign carrier from one country to another.
Under the Warsaw Convention the family of the traveler abroad would under the traditional jurisdictional requirements, have to sue for his death in the country where he bought his ticket or at the destination. A “5th Jurisdiction” would allow the survivors to sue in U.S. Courts. Importantly for the airlines, the newly modified convention still protects the airline against punitive damages even after the intercarrier agreement. Passengers may not sue the airlines for punitive damages in a Warsaw Convention case. Airline lawyers will insist that the laws of their domicile despite where they bring their lawsuit should measure passengers’ damages. This is a very important issue for the insurers of airlines. Although the United States is known worldwide for state laws that generously compensate air crash victims, many countries where international travelers are domiciled, do not have laws that provide such generous compensation.
Can Plaintiffs Collect Millions After International Airline Disasters?
The newly amended Warsaw Convention theoretically opens up the airlines to unlimited liability. But the amount of damages for the plaintiffs is still dependent upon the country that has jurisdiction over the lawsuits. It is also dependent on the extent to which compensatory damages will be recoverable according to the law of the passengers’ domicile (home) or permanent place of residence. In a typical Warsaw Convention case, an American would be subject to recovery of damages under U.S. law; a Danish passenger for example, would collect damages in accordance with the law of Denmark; a Brazilian passenger would collect damages in accordance with the law of Brazil. This may sound straightforward, but these issues can be very complicated in the U.S. courts because of choice of law issues involving a determination of which states’ laws should apply to measure damages.
A U.S. court handling an international air crash case by an American plaintiff under the Warsaw Convention must use “choice of law” principles to determine which state laws in the U.S. will apply to a passenger’s claim. One way airline disaster lawyers earn their fee involves persuading the courts to apply the laws of the more generous states to their clients’ cases. Those attorneys who represent families of victims not domiciled in the U.S. typically search for legal arguments to try to justify applying generous U.S. laws to their clients’ claims instead of the laws of the foreign domicile or permanent residence.
How Generous Are U.S. Laws For The Payment Of Air Crash Damages?
Compensatory damages are supposed to pay a victim for the losses suffered because of the harm caused by a wrongdoer. Victims of airline accidents are entitled to collect two types of compensatory damages under the laws of most states in the United States. Injured passengers or the families of decedents can usually collect full pecuniary (economic) damages. Pecuniary damages include medical expenses and lost wages suffered by those who are personally injured. The families of those passengers who were killed can recover pecuniary damages for the lost support no longer provided by the decedent.
In addition to pecuniary damages, most states allow the recovery of non- pecuniary (non-economic) damages that may exceed pecuniary damages. In the case of personal injury victims, non-pecuniary damages are recoverable for pain and suffering. In death cases, the families of the decedents are usually allowed the recovery of non-pecuniary damages for the loss of care, comfort and society. Some states allow pre-impact (non pecuniary) pain and suffering damages for the time the person consciously suffered after being harmed but before dying. Frequently, when wrongful death air crash cases go to trial in front of juries, the award for non-pecuniary damages is higher than the award for pecuniary damages. The total verdict may be in the millions of dollars, particularly where the decedent was a middle-class or higher wage earner who supported a family. In order to collect such large amounts, the plaintiff must prove liability on the part of a defendant. There must be a “collectible”defendant with insurance or sufficient assets to pay their damages.
The award of non-pecuniary damages is usually at the jury’s discretion subject to reduction by a judge if the amount is excessive. Where there is no right to jury trial, the judge decides the pecuniary and non-pecuniary damages. A few states have enacted laws to limit accident victims with regard to recovery of non-pecuniary damages. In those few states that impose such limits, the limit per victim, is often in the vicinity of $250,000 to $500,000 for non-pecuniary damages. States with limits on non-pecuniary damages will usually still allow victims’ families to recover the full amount of their pecuniary damages.
There is one body of law in the United States that denies survivors any recovery for non-pecuniary damages. Those who are killed in a crash on the ocean, outside of the territorial limits of the United States face severe restrictions or damage recovery. The families of passengers who die in crashes into the high seas of the ocean cannot recover any compensation for the loss of care, comfort and society. Furthermore, the survivors may get almost nothing if their loved ones were not actually providing monetary support to the family at the time of the crash!
Bibliography:
Kluwer Law International.
Goldhirsch, Lawrence B. (2000). The Warsaw Convention Annotated: A Legal
Handbook. Cambridge, MA: Kluwer Law International.
http://www.sq006.com/faq1A.html
Marriott, L., Stewart, S., Sharpe, M. Air Disasters. London: PRC Publishing Ltd.
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