Recent Developments in Aviation Liability Law Blanca I

Total Page:16

File Type:pdf, Size:1020Kb

Recent Developments in Aviation Liability Law Blanca I Journal of Air Law and Commerce Volume 66 | Issue 1 Article 3 2001 Recent Developments in Aviation Liability Law Blanca I. Rodriguez Follow this and additional works at: https://scholar.smu.edu/jalc Recommended Citation Blanca I. Rodriguez, Recent Developments in Aviation Liability Law, 66 J. Air L. & Com. 21 (2001) https://scholar.smu.edu/jalc/vol66/iss1/3 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Journal of Air Law and Commerce by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. RECENT DEVELOPMENTS IN AVIATION LIABILITY LAW BLANCA I. RODRIGUEZ* ** TABLE OF CONTENTS I. INTRODUCTION .................................. 24 II. THE MONTREAL CONVENTION OF 1999 ....... 25 A. THE PASSENGER CAUSE OF ACTION UNDER ARTICLE 17 ..................................... 27 B. JOINT AND SEVERAL LIABILITY ................... 29 C. ELIMINATION OF DAMAGES LIMITATIONS AND ADOPTION OF A Two-TIERED COMPENSATION SCH EM E ......................................... 29 D. ADVANCE PAYMENTS AND AUTOMATIC REVIEW OF TIER ONE PAYMENT AMOUNTS .................. 31 E. PASSENGER'S CONTRIBUTORY FAULT ............. 31 F. COURT COSTS AND LEGAL EXPENSES ............ 32 G. PUNITIVE DAMAGES ............................. 32 H. ADDITION OF THE FIFTH PLACE OF TREATY JURISDICTION ................................... 33 I. TICKET DELIVERY ............................... 34 J. RECOURSE AGAINST THIRD PARTIES AT FAULT ... 34 K. STATUTE OF LIMITATIONS ....................... 34 L. ACTS OF AGENTS AND SERVANTS OF THE C ARRIER ........................................ 34 III. LIABILITY OF AIR CARRIERS UNDER THE 1929 WARSAW CONVENTION .......................... 35 A. THE UNITED STATES ADOPTS THE 1975 MONTREAL PROTOCOL No. 4 ................... 35 * A partner in the New York City law firm of Kreindler & Kreindler, concentrating in aviation accident law and complex tort litigation. J.D., New York University School of Law, 1981. ** This article would not have been possible without the tremendous effort of Jacqueline M. James, an attorney at Kreindler & Kreindler. 22 JOURNAL OFAIR LAW AND COMMERCE [66 B. THE EFFECTIVE DATE OF THE 1996 IATA INTERCARRIER AGREEMENTS WAIVING ARTICLE 22 ..................................... 37 C. DEFINING AN INTERNATIONAL FLIGHT ........... 39 D. DETERMINING TREATY RELATIONSHIP BETWEEN ADHERENTS ..................................... 40 E. THE ARTICLE 17 CAUSE OF ACTION FOR PASSENGER INJURY AND DEATH .................. 44 1. Supreme Court Decides Exclusivity Issue ....... 44 2. Accident Under Article 17 ........ ....... 48 3. Article 17 Requirement of Death or Bodily Injury ....................................... 56 F. RECOVERY OF DAMAGES AND APPORTIONMENT OF LIABILITY UNDER ARTICLE 17 ................... 58 G. ARTICLE 20 ALL NECESSARY MEASURES DEFENSE. 60 H. ARTICLE 25 UNLIMITED COMPENSATORY LIABILITY FOR CARRIER'S WILLFUL MISCONDUCT ........... 60 I. ARTICLE 28(1) .................................. 65 1. Third Party Claims for Indemnification or Contribution................................. 65 2. Article 28 and Forum Non Conveniens Dism issal.................................... 67 3. Jurisdiction Based on Where the CarrierHas a Place of Business Through Which Contact Was M ade ....................................... 68 J. ARTICLE 29 LIMITATIONS PERIOD Is NOT SUBJECT TO TOLLING .................................... 69 K. LIABILITY FOR DELAY UNDER ARTICLE 19 ........ 69 L. LIABILITY UNDER ARTICLE 18 FOR LUGGAGE AND CARGO Loss OR DAMAGE ....................... 70 M. REMOVABILITY OF WARSAW CONVENTION CASE 73 N. APPLICATION OF WARSAW CONVENTION TO CARRIER'S AGENTS OR INDEPENDENT CONTRACTORS .................................. 74 IV. LAW APPLICABLE TO AIRCRAFT DISASTERS OCCURRING ON WATER OR ON OFFSHORE PLATFO RM S ....................................... 74 A. TERRITORIAL SCOPE OF DOHSA's APPLICATION. 74 B. DOHSA's APPLICATION BASED ON LOCATION OF THE M ISCONDUCT ............................... 78 V. NON-WARSAW CONVENTION LIABILITY OF AIRLINES AND AIRCRAFT OWNERS OR O PERATO RS ....................................... 82 2000] DEVELOPMENTS IN AVIATION LIABILITY LAW 23 A. AIRLINE'S LIABILITY FOR ACTS OF COMMUTER A IRLIN E ......................................... 82 B. AIRLINE'S LIABILITY FOR ACTS OF INDEPENDENT CONTRACTORS .................................. 82 C. AIRLINE'S LIABILITY FOR REMOVAL OF A PASSENGER ...................................... 83 D. AIRLINE'S FAILURE TO RESPOND ADEQUATELY TO IN-FLIGHT MEDICAL EMERGENCIES ............... 84 E. AIRLINE'S DUTY TO TRAVEL AGENTS ............. 86 F. AIRLINE'S LIABILITY TO EMPLOYEE-PASSENGERS AND TO EMPLOYEES OF INDEPENDENT CONTRACTORS .................................. 86 G. EFFECT OF RELEASE FROM LIABILITY ............. 87 H. LIABILITY OF AIRCRAFT OWNER .................. 87 VI. PREEMPTION OF STATE LAW CLAIMS AGAINST AIRLINES UNDER THE AIRLINE DEREGULATION ACT ............................ 88 A. THE ADA DOES NOT PREEMPT RUN-OF-THE-MILL STATE LAW TORT CLAIMS ....................... 89 B. ADA DOES NOT PREEMPT CLAIMS FOR INADEQUATE MEDICAL ASSISTANCE .............. 91 C. ADA AND DISCRIMINATION CLAIMS .............. 92 D. ADA DOES NOT PREEMPT ROUTINE CONTRACT C LA IM S ......................................... 93 VII. IMPLIED FEDERAL PREEMPTION BY PERVASIVE REGULATION ........................ 94 VIII. LIABILITY OF MANUFACTURERS ................ 99 A. THE 1994 GENERAL AVIATION REVITALIZATION A CT ............................................ 99 B. ADMISSIBILITY OF EVIDENCE ISSUES .............. 99 C. GOVERNMENT CONTRACTOR DEFENSE ........... 100 IX. LIABILITY OF THE UNITED STATES ............ 103 A. LIABILITY FOR INCORRECT INTERPRETATION OF FAA REGULATION ............................... 103 B. EXCEPTION TO GOVERNMENT LIABILITY FOR DISCRETIONARY FUNCTIONS ..................... 103 X. LIABILITY OF FOREIGN NATIONS: THE FOREIGN SOVEREIGN IMMUNITIES ACT ....... 105 A. LIABILITY FOR A FOREIGN STATE'S TERRORIST A CTS ........................................... 105 B. LIABILITY FOR COMMERCIAL ACTIVITY ........... 106 C. No JURY TRAL UNDER THE FSIA ............... 107 XI. LIABILITY OF MAINTENANCE COMPANIES .... 107 JOURNAL OF AIR LAW AND COMMERCE XII. JURISDICTIONAL AND PROCEDURAL Q UESTIO NS ....................................... 108 A. FORUM NON CONVENIENS ....................... 108 B. SUBJECT MATTER JURISDICTION .................. 110 C. IN PERSONAM JURISDICTION ..................... 112 D. BIFURCATION OF TRIALS ........................ 114 XIII. WENDELL H. FORD AVIATION INVESTMENT AND REFORM ACT FOR THE 21ST CENTURY (AIR 21) ............................................ 115 A. HIGHLIGHTS OF AIR21 .......................... 115 B. AIR21's AMENDMENT TO THE DEATH ON THE H IGH SEAS ACT ................................. 118 XIV. MISCELLANEOUS ISSUES ........................ 121 A. IMMUNITY FOR COMMUNICATIONS MADE DURING NTSB INVESTIGATIONS .......................... 121 B. PUNITIVE DAMAGES ............................. 122 C. INSURANCE QUESTIONS .......................... 123 D. EVIDENTIARY ISSUES ............................. 123 E. N UISANCE ....................................... 124 F. FALSE CLAIMS ACT .............................. 125 G. PASSENGER LIST IS DISCOVERABLE TO CREATE CLASS FOR CLASS ACTION SUIT .................. 125 H. EXPERT TESTIMONY ............................. 126 I. INTRODUCTION IATHOUT A DOUBT, 1999 and 2000 will be remembered TIas years of remarkable developments in aviation liability law. Topping the list of major developments was the momen- tous drafting in May 1999 in Montreal, Canada of a new multi- lateral convention to govern the liability of airlines in international aviation accidents. The 1999 Montreal Conven- tion establishes a unique system of airline liability, one that is radically different from the 1929 Warsaw Convention that it will hopefully replace. It is expected that the new convention may be ratified and enter into force in the United States and other nations within a few years. Despite our more than sixty-year history with the 1929 Warsaw Convention, this treaty has continuously fascinated us with its difficult issues of treaty interpretation. Courts still grapple with such fundamental issues as the proper definition of willful mis- conduct and the circumstances under which damages for mental injuries are permitted. Only in 1999 did the Supreme Court finally resolve the issue of whether the Warsaw Conven- 2000] DEVELOPMENTS IN AVIATION LIABILITY LAW 25 tion cause of action for passenger injury or death is exclusive, an issue that had long divided the lower courts, some of which, ironically, were originally of the view that the Warsaw Conven- tion did not even create a cause of action. We have come a long way in our understanding of this deceptively complex document. Another key development in aviation law is the passage on April 5, 2000, of the Wendell H. Ford Aviation Investment Re- form Act for the 21st Century ("AIR21"), a comprehensive reauthorization of the Federal Aviation Administration and Air- port Improvement Program, which provides substantially more money for safety programs relating to airport facilities and per- sonnel and aviation security and addresses various liability, com- petition, environmental, and passenger rights issues. Among its significant highlights is an amendment to the Death on the High Seas Act', which now permits recovery of damages for loss of a decedent's care, comfort, and companionship in aviation
Recommended publications
  • CIVIL ACTION Plaintiff, : V. : : NO
    IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA SANGMI LEE, : : CIVIL ACTION Plaintiff, : v. : : NO. 15-2666 AMR CORPORATION, aka/dba : AMERICAN AIRLINES, : : Defendant. : MEMORANDUM BUCKWALTER, S. J. June 18, 2015 Currently pending before the Court is Plaintiff Sangmi Lee’s Motion to Remand. For the following reasons, the Motion is denied. I. FACTUAL BACKGROUND According to Plaintiff’s Statement of Claim filed with the Philadelphia Municipal Court: Plaintiff, Sangmi LEE, purchased a ticket in Philadelphia on American Airlines, departing from the United States to Ladyville, Belize. Employees of American Airlines refused to allow Ms. Lee to board her plane, based on a misinterpretation of the immigration laws of Belize, resulting in Ms. Lee missing her flight to Belize and forcing her to take a flight to Guatemala, instead. Based on Defendant American Airlines [sic] failure to allow Ms. Lee to board her flight to Belize, she was forced to incur expenses in the amount of five thousand three hundred sixty one dollars and seventy six cents ($ 5361.76). These expenses were only necessary based on the failure of American Airlines employees to allow Ms. Lee to board her plane as arranged. Plaintiff has made every possible effort to resolve the matter with American Airlines only to be ignored and misled further. WHEREFORE, Plaintiff demands judgement [sic] in the amount of $5361.76, plus costs and attorney’s fees, and any other relief this Court deems necessary and just. (Def.’s Mot. to Remand, Ex. A.) On April 17, 2015, Plaintiff sued Defendant AMR Corporation aka/dba American Airlines (“AMR”) in the Philadelphia Court of Common Pleas, Municipal Court (Civil) for financial damages.
    [Show full text]
  • Aviation Law Review
    Aviation Law Review Sixth Edition Editor Sean Gates lawreviews © 2018 Law Business Research Ltd Aviation law Review Sixth Edition Reproduced with permission from Law Business Research Ltd This article was first published in August 2018 For further information please contact [email protected] Editor Sean Gates lawreviews © 2018 Law Business Research Ltd PUBLISHER Tom Barnes SENIOR BUSINESS DEVELOPMENT MANAGER Nick Barette BUSINESS DEVELOPMENT MANAGERS Thomas Lee, Joel Woods SENIOR ACCOUNT MANAGER Pere Aspinall ACCOUNT MANAGERS Sophie Emberson, Jack Bagnall PRODUCT MARKETING EXECUTIVE Rebecca Mogridge RESEARCHER Keavy Hunnigal-Gaw EDITORIAL COORDINATOR Hannah Higgins HEAD OF PRODUCTION Adam Myers PRODUCTION EDITOR Tessa Brummitt SUBEDITOR Gina Mete CHIEF EXECUTIVE OFFICER Paul Howarth Published in the United Kingdom by Law Business Research Ltd, London 87 Lancaster Road, London, W11 1QQ, UK © 2018 Law Business Research Ltd www.TheLawReviews.co.uk No photocopying: copyright licences do not apply. The information provided in this publication is general and may not apply in a specific situation, nor does it necessarily represent the views of authors’ firms or their clients. Legal advice should always be sought before taking any legal action based on the information provided. The publishers accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of July 2018, be advised that this is a developing area. Enquiries concerning reproduction should be sent to Law Business
    [Show full text]
  • Aviation Liability 2021 Aviation Liability 2021
    Aviation Liability 2021 Aviation Aviation Liability 2021 Contributing editor Andrew J Harakas © Law Business Research 2020 Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall Aviation Liability [email protected] Senior business development manager Adam Sargent 2021 [email protected] Published by Law Business Research Ltd Contributing editor Meridian House, 34-35 Farringdon Street London, EC4A 4HL, UK Andrew J Harakas The information provided in this publication Clyde & Co US LLP is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer– Lexology Getting The Deal Through is delighted to publish the fourth edition of Aviation Liability, client relationship. The publishers and which is available in print and online at www.lexology.com/gtdt. authors accept no responsibility for any Lexology Getting The Deal Through provides international expert analysis in key areas of acts or omissions contained herein. The law, practice and regulation for corporate counsel, cross-border legal practitioners, and company information provided was verified between directors and officers. October and November 2020. Be advised Throughout this edition, and following the unique Lexology Getting The Deal Through format, that this is a developing area. the same key questions are answered by leading practitioners in each of the jurisdictions featured. Our coverage this year includes a new chapter on Austria. © Law Business Research Ltd 2020 Lexology Getting The Deal Through titles are published annually in print. Please ensure you No photocopying without a CLA licence.
    [Show full text]
  • Convention for the Unification of Certain Rules for International Carriage by Air Done at Montreal on 28 May 1999
    CONVENTION FOR THE UNIFICATION OF CERTAIN RULES FOR INTERNATIONAL CARRIAGE BY AIR DONE AT MONTREAL ON 28 MAY 1999 Entry into force: The Convention entered into force on 4 November 2003*. Status: 137 parties. Date of deposit of instrument of ratification, acceptance (A), Date of approval (AA) or Date of entry State signature accession (a) into force Albania - 20/10/04 (a) 19/12/04 Argentina (22) - 16/12/09 (a) 14/2/10 Armenia - 16/04/10 (a) 15/6/10 Australia - 25/11/08 (a) 24/1/09 Austria (10) - 29/4/04 (a) 28/6/04 Azerbaijan (26) - 10/2/15 (a) 11/4/15 Bahamas 28/5/99 - - Bahrain - 2/2/01(a) 4/11/03 Bangladesh 28/5/99 - - Barbados - 2/1/02 (a) 4/11/03 Belgium (1)(15) 28/5/99 29/4/04 28/6/04 Belize 28/5/99 24/8/99 4/11/03 Benin 28/5/99 30/3/04 29/5/04 Bolivia (Plurinational State of) 28/5/99 6/5/15 5/7/15 Bosnia and Herzegovina - 9/3/07 (a) 8/5/07 Botswana - 28/3/01 (a) 4/11/03 Brazil 3/8/99 19/5/06 18/7/06 Brunei Darussalam (36) - 18/3/20 (a) 17/5/20 Bulgaria - 10/11/03 (a) 9/1/04 Burkina Faso 28/5/99 25/6/13 25/8/13 Cabo Verde - 23/8/04 (a) 22/10/04 Cambodia 28/5/99 - - Cameroon 27/9/01 5/9/03 4/11/03 Canada (6) 1/10/01 19/11/02 4/11/03 Central African Republic 25/9/01 - - Chad - 12/7/17 (a) 10/9/17 Chile (21) 28/5/99 19/3/09 18/5/09 China (18) 28/5/99 1/6/05 31/7/05 Colombia 15/12/99 28/3/03 4/11/03 Congo - 19/12/11 (A) 17/2/12 Cook Islands - 22/5/07 (a) 21/7/07 Costa Rica 20/12/99 9/6/11 8/8/11 Côte d’Ivoire 28/5/99 4/2/15 5/4/15 Croatia - 23/1/08 (a) 23/3/08 Cuba 28/5/99 14/10/05 13/12/05 Cyprus - 20/11/02 (a) 4/11/03 Czech Republic
    [Show full text]
  • Compensation Under the Warsaw Convention for Victims of Hijackings and Terrorist Attacks Carol Lynne Tomeny
    Brooklyn Journal of International Law Volume 3 | Issue 1 Article 2 1976 Compensation Under the Warsaw Convention for Victims of Hijackings and Terrorist Attacks Carol Lynne Tomeny Follow this and additional works at: https://brooklynworks.brooklaw.edu/bjil Recommended Citation Carol L. Tomeny, Compensation Under the Warsaw Convention for Victims of Hijackings and Terrorist Attacks, 3 Brook. J. Int'l L. (1976). Available at: https://brooklynworks.brooklaw.edu/bjil/vol3/iss1/2 This Note is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Journal of International Law by an authorized editor of BrooklynWorks. NOTES COMPENSATION UNDER THE WARSAW CONVENTION FOR VICTIMS OF HIJACKINGS AND TERRORIST ATTACKS INTRODUCTION The Warsaw Convention' has generated enormous interest and controversy since its inception. Most criticism has focused upon the inequity of the Convention's ceiling on recoveries for passenger injury and death in international aviation while no limitation of liability usually exists for domestic aviation. 2 In- deed, a large portion of Convention litigation has involved at- tempts to avoid the Convention's liability limits, either by em- ploying one of the methods provided by the Convention or by demonstrating the inapplicability of the Convention. Hijacking and terrorist activities have provided the bases of most recent Convention litigation and have led to attempts by injured plaintiffs to be absorbed into the Convention rather than to remain outside it and subject totally to local law. This note examines the Warsaw Convention itself and its modifying agree- ments in order to analyze the reasons for this change and the effect of the attempted expansion of the Convention to accom- modate these activities.
    [Show full text]
  • Study on Airport Ownership and Management and the Ground Handling Market in Selected Non-European Union (EU) Countries
    Study on airport DG MOVE, European ownership and Commission management and the ground handling market in selected non-EU countries Final Report Our ref: 22907301 June 2016 Client ref: MOVE/E1/SER/2015- 247-3 Study on airport DG MOVE, European ownership and Commission management and the ground handling market in selected non-EU countries Final Report Our ref: 22907301 June 2016 Client ref: MOVE/E1/SER/2015- 247-3 Prepared by: Prepared for: Steer Davies Gleave DG MOVE, European Commission 28-32 Upper Ground DM 28 - 0/110 London SE1 9PD Avenue de Bourget, 1 B-1049 Brussels (Evere) Belgium +44 20 7910 5000 www.steerdaviesgleave.com Steer Davies Gleave has prepared this material for DG MOVE, European Commission. This material may only be used within the context and scope for which Steer Davies Gleave has prepared it and may not be relied upon in part or whole by any third party or be used for any other purpose. Any person choosing to use any part of this material without the express and written permission of Steer Davies Gleave shall be deemed to confirm their agreement to indemnify Steer Davies Gleave for all loss or damage resulting therefrom. Steer Davies Gleave has prepared this material using professional practices and procedures using information available to it at the time and as such any new information could alter the validity of the results and conclusions made. The information and views set out in this report are those of the authors and do not necessarily reflect the official opinion of the European Commission.
    [Show full text]
  • Chapter Four Convention for the Suppression Of
    CHAPTER FOUR CONVENTION FOR THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF CIVIL AVIATION 1971 (‘Montreal Convention’) 1. The offence established by the Hague Convention requires the seizure of, or other exercise of control over, an aircraft in flight, or an attempt to do so. It can be committed only by a person on board the aircraft. Similarly, the conduct of an accomplice must also take place on board. These limitations restrict the scope of the offence. In particular they exclude from its ambit cases where force is applied from outside the aircraft. Moreover, the offence under the Hague Convention does not extend to acts of sabotage and destruction of aircraft. Unhappily, such conduct has occurred frequently. Between 1949 and 1970, 22 aircraft were destroyed and over 400 persons killed as a result of the detonation of explosives on board. A further treaty was therefore needed to co-ordinate means for the deterrence and punishment of such acts. 2. ICAO convened a diplomatic conference at Montreal and on 23 September 1971 it adopted the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. The Convention entered into force on 26 January 1973. As of September 2002 it had 176 Parties, including 47 Commonwealth States. The United Kingdom ratified the Convention on 25 October 1973 also in respect of all its overseas territories. A number of them have since attained independence, some of which have formally succeeded to the Convention. The text of the Convention is at page 83 below, and the complete list of signatures, ratifications and accessions, territorial extensions and successions as of September 2002 is at page 90 below.
    [Show full text]
  • (Montréal, 20 April to 2 May 2009) CONVENTION ON
    DCCD Doc No. 24 23/4/09 INTERNATIONAL CONFERENCE ON AIR LAW (Montréal, 20 April to 2 May 2009) CONVENTION ON COMPENSATION FOR DAMAGE CAUSED BY AIRCRAFT TO THIRD PARTIES AND CONVENTION ON COMPENSATION FOR DAMAGE TO THIRD PARTIES, RESULTING FROM ACTS OF UNLAWFUL INTERFERENCE INVOLVING AIRCRAFT (Presented by the Air Crash Victims Families Group) 1. PROPOSAL 1.1 A Convention whose deliberations extend over many years is a WORK IN PROGRESS. 1.2 Many fundamental changes have occurred in the world since 2004, most especially since the 33rd Session of the Legal Committee (21 April to 2 May 2008), affecting also the entire air transportation industry. 1.3 It is proposed that the Convention revert to its original task. 1.4 One General Risk Convention with provisions for all catastrophic occurrences including unlawful interference, involving aircraft. 2. PROLOGUE 2.1. During the 31st Sessions of the ICAO Legal Committee (28 August – 8 September 2000) the delegation of Sweden introduced a resolution to address the modernization of the 1952 “Convention on Damages Caused by Foreign Aircraft to Third Parties on the Surface” (Rome Convention) – after the successful adoption of the “Convention for the Unification of Certain Rules for International Carriage by Air done at Montreal on May 28, 1999”. 2.2 For the last eight years the leadership of ICAO has shepherded the deliberative process with great patience, fortitude and understanding inspired by the encouragement of Presidents of Council Excellencies Dr. Assad Kotaite, now Roberto Koebeh Gonzalez, the ICAO Secretary General Dr. Taïeb Chérif (and his predecessor Dr. Renato Costa Perreira), under the patient direction of the Legal Committee Chairman Gilles Lauzon, Q.C., the leadership of the chair of the Special Group (now the President of the Legal Committee), Henryk Kjellin, the chair of the Task Force, Siew Huay Tan, the ICAO Director, Legal Affairs and External Relations, Denys Wibaux (and his predecessor Dr.
    [Show full text]
  • Accidents & Injuries in Air Law: the Clash of the Titans
    ACCIDENTS & INJURIES IN AIR LAW: THE CLASH OF THE TITANS . by Paul Stephen Dempsey INTRODUCTION When the Warsaw Convention of 1929 or the Montreal Convention of 1999 is deemed to apply,1 the court must determine whether recovery is permitted under it. The most critical provision in much personal injury and wrongful death litigation surrounding international commercial aviation is Article 17 of the Warsaw Convention, which provides: The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which . Copyright © 2008 by Paul Stephen Dempsey. Readers are encouraged to consult the treatise International Air Carrier Liability: The Montreal Convention of 1999 (McGill 2005) by Paul Stephen Dempsey and Michael Milde, for a broader treatment of the issues discussed herein. Tomlinson Professor of Global Governance in Air & Space Law, and Director of the Institute of Air & Space Law, McGill University. From 1979-2002, Dr. Dempsey was Professor of Law & Director of the Transportation Law Program, University of Denver College of Law. A.B.J. (1972), J.D. (1975), University of Georgia; LL.M. (1978), George Washington University; D.C.L. (1986), McGill University. Admitted to the practice of law in Colorado, Georgia, and the District of Columbia. 1 Pursuant to Article 1, the treaty applies when travel is according to an international itinerary originating and destined to two different contracting States, or from and to a single contracting State
    [Show full text]
  • United States District Court Eastern District of Michigan Southern Division
    UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DARREN SENSAT, Plaintiff, Case Number 17-12468 v. Honorable David M. Lawson SOUTHWEST AIRLINES CO., Defendant. ______________________________________/ OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff Darren Sensat injured his left foot and ankle while boarding a Southwest Airlines flight departing from the Dominican Republic destined for the United States. He says that his foot became lodged in a gap between the tread and riser of the airstairs that the airline used for passenger boarding at that airport. Sensat brought suit under Article 17 of the Montreal Convention, which renders air carriers liable to passengers injured by accidents that occur on board the aircraft or during embarking or disembarking. Defendant Southwest Airlines has moved for summary judgment contending that the undisputed facts show that Sensat’s injuries did not result from an “accident.” Because the record demonstrates otherwise, the motion will be denied. I. The injury occurred on April 9, 2017. Sensat was a passenger on Southwest Flight 1239 from Punta Cana in the Dominican Republic, returning to the United States after a family vacation. He arrived at the airport with his family about two hours before their scheduled departure on a clear sunny day. Sensat checked his bags and carried on a small backpack with personal items that weighed 10 to 12 pounds. He was wearing shorts and athletic running shoes. When the boarding time was called for their flight, passengers went outside the terminal and waited for a bus that drove them across the tarmac to where the plane was parked.
    [Show full text]
  • United States District Court District of Massachusetts
    Case 3:19-cv-30007-MGM Document 45 Filed 12/28/20 Page 1 of 9 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS JENNIFER MOORE, Plaintiff, v. Civil Action No. 19-30007-MGM BRITISH AIRWAYS PLC, a foreign corporation, Defendant. MEMORANDUM AND ORDER REGARDING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT (Dkt. Nos. 33, 37) December 28, 2020 MASTROIANNI, U.S.D.J. I. INTRODUCTION Plaintiff Jennifer Moore was traveling as a passenger on a British Airways flight when she suffered an injury while disembarking from the airplane. Plaintiff filed a claim against Defendant British Airways for damages under the Montreal Convention (Count One) and for negligence (Count Two). Defendant has moved for summary judgment on all claims. (Dkt. No. 33.) With her opposition, Plaintiff late-filed a cross-motion for partial summary judgment that the incident at issue was an “accident” under the Montreal Convention. (Dkt. No. 37.) The court heard arguments on the motions on December 2, 2020. For the reasons discussed, the court will grant Defendant’s motion and deny Plaintiff’s motion. II. BACKGROUND On September 14 and 15, 2018, Plaintiff was traveling as a passenger on British Airways Flight 202 from Boston, Massachusetts to London, England as part of round-trip transportation. Case 3:19-cv-30007-MGM Document 45 Filed 12/28/20 Page 2 of 9 Upon arrival at London Heathrow Airport, due to a broken jet bridge, the passengers disembarked by portable stairs. British Airways and other air carriers commonly use a mobile staircase to disembark passengers when a jet bridge is unavailable.
    [Show full text]
  • HIVER / WINTER / INVIERNO / INVERNO 2007 28 Octobre 2007 > 29 Mars 2008 October 28, 2007 > March 29, 2008
    HORAIRES / TIMETABLE / FLUGPLAN / HORARIOS / ORARIO HIVER / WINTER / INVIERNO / INVERNO 2007 28 octobre 2007 > 29 mars 2008 October 28, 2007 > march 29, 2008 www.airfrance.com www.klm.com COMMENT UTILISER L'HORAIRE / HOW TO USE THIS TIMETABLE ZEICHENERKLÄRUNG / COMO UTILIZAR ESTE HORARIO / COME UTILIZZARE L’ORARIO GUIDE VILLE DE DESTINATION / DESTINATION CITY / ZIELORT / CIUDAD DE LLEGADA / CITTÀ DI DESTINAZIONE. CODE VILLE ARRIVÉE / ARRIVAL CITY CODE / CODE DES ZIELORTES / CÓDIGO DE LA CIUDAD DE LLEGADA / CODICE CITTÀ DI ARRIVO. UTC (Universal Time Coordinated) ± HEURE LOCALE / LOCAL TIME / ORTSZEIT / HORA LOCAL / ORA LOCALE. Variation de l’heure locale par rapport à UTC / Difference between local time and UTC / Zeitunterschied zu UTC - Zeit / Diferencia horaria respecto a UTC / Variazione dell’ora locale rispetto all’UTC. CODE VILLE DE DÉPART / DEPARTURE CITY CODE / CODE DES ABFLUGSORTES / CÓDIGO DE LA CIUDAD DE SALIDA / CODICE CITTÀ DI PARTENZA. JOURS DE FONCTIONNEMENT / OPERATING DAYS / VERKEHRSTAGE / DÍAS DE OPERACIÓN / GIORNI OPERATIVI : 1 Lundi / Monday / Montag / Lunes / Lunedì 5 Vendredi / Friday / Freitag / Viernes / Venerdì 2 Mardi / Tuesday / Dienstag / Martes / Martedì 6 Samedi / Saturday / Samstag / Sábado / Sabato 3 Mercredi / Wednesday / Mittwoch / Miércoles / Mercoledì 7 Dimanche / Sunday / Sonntag / Domingo / Domenica 4 Jeudi / Thursday / Donnerstag / Jueves / Giovedì HEURE DE DÉPART / DEPARTURE TIME / ABFLUGZEIT / HORA DE SALIDA / ORARIO DI PARTENZA. HEURE D’ARRIVÉE / ARRIVAL TIME / ANKUNFTSZEIT / HORA DE LLEGADA / ORARIO DI ARRIVO. DURÉE, temps de vol / DURATION, time of flight / DAUER, Flugzeit / DURATA, tempo di volo / DURAÇION, tiempo de vuelo. PÉRIODE DE VALIDITÉ / FLIGHT VALIDITY PERIOD / GÜLTIG VON…BIS… / PERIODO DE VALIDEZ / PERIODO DI VALIDITÀ. AÉROGARE DE DÉPART / DEPARTURE AIRPORT / ABFLUGHAFE / AEROPUERTO DE SALIDAN / AEROSTAZIONE DI PARTENZA.
    [Show full text]