An Update on the Law Governing Passenger Personal Injury and Wrongful Death Claims Arising on International Airline Flights

February 14, 2024

By: Erin R. Applebaum, Partner

^{This article was first published in Volume XLVIII (2023) of the Annals of Air and Space Law.} 

On May 20, 1927, Charles Lindbergh took off from Roosevelt Field, New York in the Spirit of St. Louis, a modified Ryan M-2 single-engine airplane. Lindbergh aimed to become the first person to fly solo across the Atlantic. Thirty-three hours and thirty minutes later he landed in Paris, at Le Bourget Aerodrome. Lindbergh’s remarkable achievement highlighted the potential of long-distance international flight, generating great interest in the budding aviation industry. Meanwhile, countries around the world were already grappling with how to regulate aviation, in particular, what laws should govern international flights.

I. ORIGINS OF THE WARSAW AND MONTREAL¹ CONVENTIONS

In the 1920s, France proposed convening a diplomatic conference concerning international airline liability. A draft set of rules was presented at the Warsaw Conference in October of 1929, just two years after the Spirit of St. Louis’s famous flight. These rules became known as the Warsaw Convention, which entered into force in 1933.² The Warsaw Convention’s primary purpose was “limiting the liability of air carriers in order to foster the growth of the fledgling commercial aviation industry.”³

The drafters did not include damages provisions and left it up to the courts to decide what laws would govern damages. The Warsaw Convention, however, strictly limited the compensatory damages⁴ that may be awarded in cases involving injury or death on international flights to the sum of 125,000 French francs, which at the time was about $8,300.⁵ Article 25 of the Warsaw Convention permitted an accident victim to attempt to avoid the liability limit by proving that the carrier committed willful misconduct in causing the accident and the victim’s injuries.⁶

Over time, broad dissatisfaction with the Warsaw Convention’s low damages limit drove several amendments that increased the limits, but they remained extremely low.⁷ On November 15, 1965, the U.S. gave notice that it would withdraw from the Warsaw Convention because the damages limit was too low. The U.S. withdrew its notice after the International Air Transport Association and the U.S. Civil Aeronautics Board agreed in Montreal to raise the limits to $75,000 under Article 22(1), which provides that the liability limits may be increased by contract.⁸ The Montreal Agreement, however, was only a temporary fix. Concern over the Warsaw Convention’s low damages limit continued.⁹

The Warsaw Convention’s damages cap caused plaintiffs to engage in aggressive court battles to avoid the damages limit by proving airline willful misconduct.¹⁰ The most famous example occurred in the Pan Am 103 litigation where plaintiffs proved at trial that Pan Am committed willful misconduct in not preventing the bombing of the flight by terrorists, a verdict affirmed by a 2-1 decision of the United States Court of Appeals for the Second Circuit.¹¹ In 1992, a group of Japanese airlines voluntarily waived the Warsaw Convention Limit.¹² Then, in 1995, the International Air Transport Association, a global trade association of international airlines, proposed an Intercarrier Agreement on Passenger Liability that waived the Warsaw Convention damages limit for carriers that joined the Agreement. These initiatives were precursors to the Montreal Convention of 1999, which has now largely replaced the Warsaw Convention. The Montreal Convention, drafted primarily for the purpose of modernizing the Warsaw Convention, entered into force in 2003.¹³ The Montreal Convention has now been in force for over twenty years and there have been a series of notable developments. In this contribution, I will address, from a U.S. perspective, the main issues that aviation lawyers face most frequently in representing international airline accident victims.

II. BASICS OF THE MONTREAL CONVENTION

The Montreal Convention provides an exclusive universal liability regime governing injuries and deaths occurring on international flights. If a claim that falls within the Montreal Convention’s scope is not valid under the Convention, it is not available at all under any local law.¹⁴ It applies to “international carriage” by air, where the place of departure and place of destination are within the territories of two “States Parties,” or within the territory of a single State Party “if there is an agreed stopping place within the territory of another State, even if that State is not a State Party.”¹⁵ The Montreal Convention has a two-year limitations period to bring injury or death claims that take place on international flights or during embarking or disembarking. ¹⁶ The limitations period is a statute of repose, not a statute of limitations, and is not subject to tolling doctrines.¹⁷ To establish liability under the Montreal Convention, a plaintiff must prove:

(1) an “accident” has occurred;

(2) the accident caused the passenger physical injury; and

(3) the accident occurred on an aircraft or during boarding or deplaning.¹⁸

Further, the plaintiff must prove some physical injury; purely psychological injury is insufficient.¹⁹

Airline defendants can reduce their liability under the Convention by proving that the passenger’s own conduct contributed to the passenger’s injury.²⁰ The Montreal Convention, like the Warsaw Convention before it, limits the jurisdictions where legal claims may be brought. The Warsaw Convention provided for judicial jurisdiction and required that claims be brought “at the option of the plaintiff in the territory of the High Contracting Parties” in one of four potential jurisdictions:

(1) where the carrier is “ordinarily resident;”

(2) where the carrier has its principal place of business;

(3) where the carrier has an establishment through which the contract of carriage was made; or

(4) the place of destination.²¹

The Montreal Convention’s drafters intended to expand these jurisdiction choices, one of the Montreal Convention’s major innovations being the so-called “fifth jurisdiction.” To this end, Article 33(1) of the Montreal Convention provides:

In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement. ²²

The Montreal Convention also included a new “limit” of liability. Under Article 21(2), an airline is not liable above the limit if it can prove that the accident was not caused by its own negligence. ²³ The Convention originally set the limit at 100,000 Special Drawing Rights (SDRs),²⁴ but also provided for periodic reviews of the limit. Today, in 2023, the limit for personal injury and death is 129,821 SDRs, which is approximately US$170,000.

III. LIABILITY FOR “ACCIDENTS” AND THE ORDINARY PASSENGER

The Montreal Convention, like the Warsaw Convention before it, requires that a plaintiff prove an “accident” has occurred – but does not define the meaning of “accident.” The United States Supreme Court has defined “accident” for Warsaw purposes as “an unexpected or unusual event or happening that is external to the passenger”²⁵ – a definition that U.S. courts have carried through to the Montreal Convention. But where a passenger’s injury “results from the passenger’s own internal reaction to the usual and expected operation of the aircraft, it has not been caused by [a Montreal Convention] accident.”²⁶ A plaintiff in the U.S., however, need not prove an airline has violated a Federal Aviation Administration standard in order to establish there was an “accident” under the Montreal Convention,²⁷ and courts have regularly addressed what constitutes an accident based on various circumstances. In 2022, the United States Court of Appeals for the First Circuit handed down an important decision that should influence how courts decide this essential element of a Montreal Convention claim, which is set out briefly below, and which I analyzed more extensively in the previous volume of the Annals of Air and Space Law.

In Moore v. British Airways PLC²⁸ a passenger was injured while deplaning from a Boeing 777 at London’s Heathrow Airport. The flight did not deplane the passengers through a jet bridge, which is usually employed, because the jet bridge was inoperable. Instead, the flight deplaned passengers down a mobile staircase, which had steps that had riser heights of 7.4 inches, except that the distance from the last step to the ground measured 13 inches. The passenger fell while stepping to the ground and claimed that the step was “further down” than she expected and that it caused her to lose her balance and fall.²⁹ The district court granted summary judgment for the airline, finding the plaintiff’s injuries were not caused by an accident within the Montreal Convention context.³⁰ The First Circuit reversed and, in so doing, squarely addressed the question of from whose perspective is something “unexpected” or “unusual.” As the court put it, “the problem of perspective looms large: what is or not expected often lies in the eye of the beholder.”³¹ This issue – that is, whose perspective determines whether an “accident” occurred – was central in Moore. Plaintiff’s counsel admitted at argument that there was “‘no evidence that the height of the last step was unusual for mobile staircases,’” or that the design was “‘atypical from other mobile staircases used to disembark passengers.’”³² From the airline’s perspective, there was nothing wrong with the stairs; they were certainly not in an unusual condition. The plaintiff, however, testified that the long step down to the ground from the last step was “unexpected” and a second passenger testified that she was “surprised” by the long step to the ground. ³³

Moore examined authority worldwide and determined that it must be the passenger’s perspective that determines whether an accident has occurred. The court noted the Montreal Convention is a treaty that “favors passengers rather than airlines” and rejected the defendant’s argument that the staircase’s bottom step could not be unexpected or unusual since it was normal throughout the industry – in other words, there was nothing unusual or unexpected about the staircase compared to all other staircases.³⁴ The court however, also rejected the notion that a passenger’s subjective expectations could control whether and event is an “accident.”³⁵ As such, the essential holding in Moore is that an event is “unexpected when a reasonable passenger with ordinary experience in air travel, standing in the plaintiff’s shoes, would not expect the event to happen.”³⁶ Based on that definition, the court found there was sufficient evidence³⁷ to support a finding that an accident occurred and reversed and remanded the case.³⁸

IV. MONTREAL CONVENTION “ACCIDENTS”

Most accidents involving passengers fall into one of three categories:

(1) operation or maintenance of the aircraft;

(2) inadvertent conduct of a fellow passenger or member of the flight crew; or

(3) intentional harm induced by a person aboard the aircraft.

Accidents occurring due to aircraft operation are typically caused by either the flight crew, including the flight attendants, the flight conditions, for example, turbulence, icing, bird strikes, or a malfunction in the safety features in the aircraft as a whole. It is important to note that airlines are not strictly liable for any injury that occurs on international flights.³⁹ For example, it is not uncommon for passengers to experience ear pain and perhaps even ear damage during flights due to cabin pressure changes, but the airline is not liable for passenger injuries due to routine and expected pressure changes. Where the pressure change is unusual, for example due to a system malfunction, the airline would be liable for the injuries sustained.⁴⁰

Courts have grappled with whether or not turbulence is “unexpected” so as to constitute an accident resulting in an injury. Some level of turbulence is experienced on virtually every flight and, therefore, it may not constitute an accident since it is neither unusual nor unexpected.⁴¹ Conversely, turbulence can be not only deadly, but also unusual and unexpected.⁴² Whether turbulence that causes a passenger injury is an accident is most often a question for the jury since the surrounding issues are very fact-intensive. Typical questions in this respect include:

(1) Did pilots fail to avoid weather conditions that caused the turbulence?

(2) Didpilotswarnpassengerstoexpecttheturbulence?

(3) Wastheseatbeltsignonand,if so,did the passengers comply with the instruction?

(4) What, if anything, did the flight attendants do to ensure that the passengers heeded any warnings from the cockpit?

Similar questions arise when passenger injury is caused by flight attendant conduct. Slip-and-falls due to debris or substances in the cabin (including the lavatories) are common on flights and often, like turbulence, present questions of fact as to whether they constitute accidents. Nonetheless, flight attendants are expected to perform checks.⁴³ Other accidents can be caused by luggage falling from the overhead compartments,⁴⁴ the spilling of hot liquid,⁴⁵ or food poisoning.⁴⁶

The expansive definition of an accident has been interpreted from the decision in Air France v. Saks,⁴⁷ to be “in no way limited to those injuries resulting from dangers exclusive to aviation” where “an airline presumably would be liable for all passenger injuries, including those caused by co-passenger torts, regardless of whether they arose from a characteristic risk of air travel.”⁴⁸ The confined nature of the cabin exposes passengers to inescapable threats that an airline has the daunting responsibility of preventing. As such, under the current judicial interpretation of the Montreal Convention, an “accident” is the result of a chain of causes that are not necessarily accidental.⁴⁹ For example, if a passenger punches the person sitting next to them once, it would most likely constitute an accident, but the airline can limit its liability if it can establish that it is without any fault.⁵⁰ The same goes for responses to larger threats to passenger safety, like terrorism.⁵¹

V. JURISDICTION AND VENUE

The Montreal Convention’s drafters intended to expand the potential jurisdictions where a plaintiff could bring an action. That is why they added the fifth jurisdiction. However, in the United States, defendant airlines have successfully sought the dismissal of cases filed in proper Montreal Convention jurisdictions by arguing that the airline exercised due care by taking “all necessary measures to avoid the damage or that it was impossible to do so,”⁵² or that the case belonged elsewhere under the forum non conveniens doctrine. Foreign airlines have been the primary beneficiaries of court decisions closing the doors to U.S. plaintiffs since U.S.-based airlines are subject to personal jurisdiction in their home states’ courts.⁵³ U.S. courts have viewed the Montreal Convention’s jurisdictional provisions as relating only to subject matter jurisdiction, and not personal jurisdiction.⁵⁴ A plaintiff must not only establish that the chosen court has subject matter jurisdiction under the Montreal Convention, but also that the court has personal jurisdiction over the defendant, and may even then need to convince the court that it should retain its jurisdiction when the defendant airline seeks to dismiss the case under the forum non conveniens doctrine.

Foreign airline defendants have also benefited from the Supreme Court’s decisions on general jurisdiction, which have largely foreclosed arguments that the continuous and systematic business activities of foreign airlines in the U.S. grant the court general jurisdiction over the foreign airline. Accordingly, the regular flights of a foreign carrier to a U.S. jurisdiction, by themselves, will unlikely establish personal jurisdiction for an accident with no connections to the U.S. These foreign airlines have largely successfully argued that when an accident takes place on a flight with no U.S. connection, the airline cannot be haled into court in the United States even if Montreal Convention jurisdiction exists.⁵⁵

Foreign airlines have also been successful in arguing for dismissal based on the forum non conveniens doctrine, closing the door to courts that have both Montreal Convention and personal jurisdiction over the defendant. This was a surprise to many practitioners since courts had previously found that the forum non conveniens doctrine was not available in Warsaw Convention cases.⁵⁶ Plaintiffs have had more success in arguing specific jurisdiction exists because the accident arises out of or relates to the airline’s or its agents’ activities in the U.S.⁵⁷ In Selke v. Germanwings GmbH,⁵⁸ Virginia family members were passengers on Germanwings GmbH (“Germanwings”) Flight 9525, a scheduled flight from Barcelona, Spain to Düsseldorf, Germany, on March 24, 2015. On the flight, the Germanwings co-pilot locked the captain out of the cockpit and intentionally crashed the airplane, murdering everyone onboard. TheSelkedecedents purchased tickets for Flight 9525 from United Airlines on its website as part of a five-flight transaction:

(1) a United flight from Virginia’s Washington Dulles International Airport to Munich, Germany;

(2) a Deutsche Lufthansa AG flight from Munich to Barcelona, Spain;

(3) a Germanwings flight from Barcelona to Düsseldorf, Germany;

(4) a Germanwings flight from Düsseldorf to Manchester, England; and finally

(5) aUnitedAirlinesflightfromManchestertoDulles.

Germanwings, through its codeshare agreement with United, authorized United Airlines to sell tickets for the airline and United sold the tickets in Virginia. Germanwings, however, argued that it was not subject to personal jurisdiction in Virginia because it did not have physical presence in Virginia and the sale of the ticket in the jurisdiction by United Airlines could not form the basis for specific personal jurisdiction. The United States District Court for the Eastern District of Virginia denied Germanwings’ motion to dismiss for lack of personal jurisdiction, finding that by expressly authorizing United Airlines to sell tickets to Virginia residents, it was Germanwings itself that established contacts in Virginia and the exercise of personal jurisdiction under Virginia’s long-arm statute. The court concluded that under Virginia law, the sale of the ticket could form the basis for personal jurisdiction because the sale was the “catalyst” for the cause of action. Germanwings’ activities in Virginia proximately resulted in plaintiffs’ Montreal Convention cause of action, which supported personal jurisdiction.

In Fisher v. Qantas Airways Ltd,⁵⁹ the United States District Court of the District of Arizona distinguished Selke and found no jurisdiction based on the sale of tickets in Arizona through a travel agent. Mr. Fisher, an Arizona resident, fell while deplaning from a Qantas flight in New Zealand. Mr. Fisher had flown from Arizona to California on United Airlines and then continued onto Qantas for a flight to Australia and then onto New Zealand. Mr. Fisher bought his ticket from a travel agent in Arizona and, relying on Selke, argued that Qantas was subject to personal jurisdiction in Arizona based on its relationship to the travel agent who sold the ticket. The court noted that in Selke, Germanwings had an express agency agreement with United Airlines to sell tickets and was paid commissions when United Airlines sold those tickets in Virginia. By contrast, the court found that Mr. Fisher’s travel agent had issued the tickets on Qantas, and Qantas and the travel agent did not have a direct contractual relationship.⁶⁰ Rather, Qantas had a contract with Tzell, a travel agency based in New York, the travel agent worked for a subsidiary of Tzell, and that indirect relationship was insufficient to establish personal jurisdiction in Arizona.⁶¹

Interestingly, the court did not outright dismiss the case and instead indicated that it would transfer the case⁶² to another U.S. state where the court would have personal jurisdiction over Qantas and suggested the parties stipulate to where the case should be transferred.⁶³

The line remains blurry as to what constitutes substantial business in a given forum, especially as that business relates to ticket sales. In 2019, the United States District Court for the District of Columbia ruled that using a foreign airline’s website to purchase tickets is not enough to make the airline “essentially at home.”⁶⁴ The court noted that because of the broad accessibility of the website, the airline could in theory be called into court anywhere in the world where a passenger accessed the website to purchase the ticket.⁶⁵ As recently as July of 2023, the Second Circuit in National Union Fire Insurance Company of Pittsburgh, Pa. v. UPS Supply Chain Solutions, Inc. considered a question of first impression: “whether the Montreal Convention confers personal jurisdiction” – a question the court answered in the negative.⁶⁶ Interpreting the text of the Montreal Convention and precedent, the court reasoned the Montreal Convention’s jurisdictional provisions speak to subject-matter jurisdiction, and because “[t]he power to assert jurisdiction over a claim is distinct from the power to assert jurisdiction over a party … personal jurisdiction must be separately established in accordance with domestic laws.”⁶⁷

While this decision may cause concern for how claims can be brought in the future, two important distinctions can be made. First, Article 33(2) of the Montreal Convention—the ‘fifth jurisdiction’ article— allows a plaintiff to bring suit for injuries or death in the decedent’s permanent residence.⁶⁸ This option was not available in National Union Fire Insurance Company since the accident concerned damage to cargo, and Article 33(2) applies only to “damage resulting from the death or injury of a passenger.”⁶⁹ Second, even with the Convention allowing a claim to be brought in a given forum, that forum must nonetheless have jurisdiction through a state’s long-arm statute.⁷⁰ In that vein, the Second Circuit noted New York’s long-arm statute in this case did not stretch as far as other states’ with regard to the admission of claims of tortious injury outside of the state,⁷¹ such as Virginia’s long-arm statute in Selke which “extend[ed] personal jurisdiction to the constitutionally permissible limits.”⁷² Therefore, a critical takeaway from this decision is that, because personal jurisdiction must be separately established, actions brought in states without far-stretching long-arm statutes may be more vulnerable to dismissal on lack of personal jurisdiction grounds.

Even where the court enjoys both subject matter and personal jurisdiction, an injured victim may still have the court’s doors closed to her if the court finds the case should proceed in a foreign jurisdiction. Relatedly, the forum non conveniens doctrine allows a court to decline to exercise jurisdiction over an action by dismissing the claim on the grounds that there is a more appropriate or convenient forum court to preside over the matter. In their decision, a court considers both where the evidence is located (i.e. witnesses, plaintiffs, investigation, wreckage, if applicable) and whether there are competing American interests with a foreign country’s law.

Above all, forum non conveniens motions are most commonly granted when there are many plaintiffs in different jurisdictions and it would be best to streamline decisions into a single court.⁷³ Since the Montreal Convention exclusively deals with international travel, there will almost always be multiple jurisdictions available to all plaintiffs, whose domiciles are likely to be located in different forums as well. Additionally, the inherent nature of a plane crash all but guarantees many plaintiffs, most of whom will bring their actions in the court that allows the most generous awards for damages. The prospect of removal to a different court is terrifying for plaintiffs, as being tried on the damage and liability laws of their choice does not come automatically.⁷⁴

Recognition of forum non conveniens has changed since the enactment of the Montreal Convention. Previously, the United States Court of Appeals for the Ninth Circuit held that the Warsaw Convention did not recognize forum non conveniens, considering the doctrine undermined the intended jurisdictional flexibility the convention was meant to protect.⁷⁵ The forum non conveniens doctrine was relatively unused at the time of the drafting of the Warsaw Convention. In that spirit, courts interpreted the Warsaw Convention as not allowing for forum non conveniens motions. The Montreal Convention, however, took a different approach. In 2007, the United States District Court for the Southern District of Florida noted that “the consensus among the delegates [in Montreal] was to omit any language respecting the applicability of forum non conveniens to avoid imposing the doctrine on States that do not employ it and distorting its application in States where it is commonly employed.”⁷⁶ Essentially, this left the decision to grant forum non conveniens motions up to individual courts based on their home laws. Today, the decision for a court to grant forum non conveniens ultimately comes down to the judge’s own discretion when balancing public and private interests.

VI. CONCLUSION

Developments of the law governing passenger personal injury and wrongful death claims arising on international airline flights have been a mixed bag, some favoring victims and some favoring defendant airlines. On the one hand, plaintiffs are able to seek broad recovery for physical and emotional harm associated with their accidents. On the other hand, jurisdictional developments have almost entirely closed the door to U.S. courts for many victims, particularly when those accidents occur on non-U.S. carriers. The landscape remains ever-changing, and it is important for practitioners to keep their fingers on the pulse of this ever-evolving body of law.

Footnotes:

¹The Montreal Convention is formally named the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45 (2000), 2242 U.N.T.S. 350. The Montreal Convention entered into force in the United States on November 4, 2003.

²Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929, 49 Stat. 3000, T.S. No. 876.

³Eastern Airlines v. Floyd, 499 U.S. 530, 546 (1991). 

⁴Montreal Convention, art. 29 (Punitive damages are not available under either the Warsaw or Montreal Conventions); see Carey v. United Airlines, 255 F.3d 1044, 1050 (9th Cir. 2001) (“‘willful misconduct’ under Article 25 does not authorize an award of punitive damages under the Warsaw Convention.”).

⁵Warsaw Convention, note 1, art. 22.

⁶In re Air Disaster at Lockerbie, Scotland on December 21, 1988, 928 F.2d 1267 (2nd Cir. 1991); see also Doe v. Etihad Airways, P.J.S.C., 870 F.3d 406, 420 (6th Cir. 2017)(“[U]nlike the Montreal Convention’s strict-liability scheme, the Warsaw Convention imposed a cap on damages… which carriers could reduce to zero upon showing that they had exercised due care by taking ‘all necessary measures to avoid the damage or that it was impossible’ to do so. The cap on damages was lifted (so as to allow potentially unlimited liability) only if the carrier’s ‘willful misconduct’ caused the injury or death. Warsaw Convention arts. 17, 20, 22.”).

⁷The Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as Amended by the Protocol Done at The Hague on 28 September 1955, 478 UNTS 371 (the “Hague Protocol”) (The Hague Conference in 1956 doubled the limit to $16,600. The United States was not satisfied with the increase and never ratified the amendment.).

⁸Agreement Relating to Liability Limitation of the Warsaw Convention and the Hague Protocol, Agreement CAB 18990, approved by order E-23680, May 18, 1966 (docket 17325) (“The Montreal Agreement”).

⁹See The United States and the Warsaw Convention, 80 Harvard Law Review 497 (1967). 

¹⁰El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999).

¹¹See In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267.

¹²See Naneen K. Banden, The Japanese Initiative on the Warsaw Convention, 61 J. Air Law & Com., 61 1995, at p. 453.

¹³Kreindler, Lee S., Aviation Accident Law, 2005 edition, 2005.

¹⁴See El Al Israel Airlines, Ltd., 525 U.S. 155 (Warsaw Convention); Moore v. British Airways PLC, 32 F.4th 110 (1st Cir. 2022); Dagi v. Delta Airlines, Inc., 961 F.3d 22, 27-28 (1st Cir. 2020) (Montreal Convention); Berlin v. JetBlue, 436 F.Supp.3d 550 (E.D.N.Y. 2020) (the court found that the Montreal Convention preempted the civil rights claim of a passenger); see also King v. American Airlines, 284 F.3d 352 (2nd Cir. 2002)(Race discrimination claim, arising from African-American passengers being bumped from international flight for which they had confirmed tickets, was preempted by Warsaw Convention.).

¹⁵Montreal Convention, Article 1.2. See Motlagh v. Qatar Airways, Q.C.S.C., 445 F. Supp. 3d 852, 860 (S.D. Ca. 2020) (Warsaw Convention applies to round trip international flight from and to Iran since Iran is not a signatory to the Montreal Convention. Where plaintiff purchased tickets in Iran, there is no subject matter jurisdiction in the U.S. under the Warsaw Convention.).

¹⁶Lawyers representing victims of international airline accidents far too often rely on state personal injury or wrongful death statutes of limitations, or think the Montreal Convention’s time limit is a statute of limitation. See Phillips v. American Airlines, Inc., 2023 WL 3634465 (C.D. Cal. May 24, 2023) (If claims are filed improperly in state court, they cannot be amended outside the two-year limitations period to be preempted to federal court, even if the initial claim was filed within two years.); Cohen v. American Airlines, Inc., 13 F.4th 240 (2nd Cir. 2021) (alleged striking of passenger by flight attendant while boarding an international flight is governed by the Montreal Convention and was time-barred because the two-year time period to file claims under the Montreal Convention had expired); Dagi, 961 F.3d 22 (False arrest and wrongful imprisonment claims were governed by the Montreal Convention and were time-barred by the Convention’s two-year limitations period.); see also Narayanan v. British Airways, 747 F.3d 1125 (Ninth Circuit 2014) (Montreal Convention’s two-year limitations period began running on the date the flight arrived at its destination even though the passenger died six months later, so that the limitations period started running before the wrongful death claim accrued.). The language of the Convention “leaves no room for the application of a tolling theory, class action or otherwise, designed to overcome the two-year condition precedent.” Dickson v. American Airlines, Inc., 685 F.Supp.2d 623, 627 (N.D. Texas 2010); see Duay v. Continental Airlines, Inc., 2010 WL 5342824 (S.D. Tex. Dec. 21, 2010) (There is an “overwhelming weight of authority against tolling the Montreal Convention’s two-year limitations period.”); see also Fishman v. Delta Air Lines, Inc., 132 F.3d 138 (2nd Cir. 1998) (Minor’s scalding injuries suffered when a flight attendant applied over-hot compress to alleviate the minor’s earache arise from an accident under the Warsaw Convention, the child’s mother’s alleged emotional injury claim was not compensable and the case was subject to the strict two-year limitations period, which was not tolled during the child’s minority.); Kahn v. Trans World Airlines, Inc., 82 A.D.2d 696, 709 (2nd Dept. 1981) (“It is abundantly clear that the delegates to the Warsaw Convention expressly desired to remove those actions governed by the Convention from the uncertainty which would attach were they to be subjected to the various tolling provisions of the laws to the member states, and that the two-year time limitation specified in article 29 was intended to be absolute – barring any action which had not been commenced within the two-year period.”). The relation-back doctrine, however, can be applied to Montreal Convention claims in certain cases, as was permitted in Campbell v. Air Jamaica Ltd., “when the amending plaintiff identified the same defendants named in the original complaint” with regard to “similar issues in an earlier filing.” 760 F.3d 1165, 1177-76 (11th Cir. 2014); Fed. R. Civ. P. 15(c).

¹⁷Narayanan, 747 F.3d at 1132 (“the Montreal Convention’s limitations period operates as a condition precedent to suit and, as such, is not subject to equitable tolling”). See Cohen v. American Airlines, Inc., 13 F.4th 240 (2d Cir. 2021) (Montreal Convention preempts all local law, including the limitations period); Dagi, 961 F.3d 22 (“Accident” of false imprisonment commenced during the flight and, therefore, fell within the scope of the Montreal Convention and rendered untimely by the two-year limitations period.).

¹⁸Montreal Convention, Article 21(2); Floyd, 499 U.S. at 535.

¹⁹Tharp v. Delta Air Lines, Inc., 552 F. Supp.3d 1091 (D. Or. 2021) (The court found that under the Montreal Convention, airline is not liable where passenger did not suffer a bodily injury from an alleged assault by a fellow passenger.). Tharp follows the Supreme Court’s decision in Floyd, 499 U.S. at 552 (interpreting the Warsaw Convention); Erlich v. American Airlines, 360 F.3d 366 (2nd Cir. 2004) (Airline is not liable under the Warsaw Convention for mental injuries that are not caused by physical injuries), but see Doe, 870 F.3d 406 (Reversing the district court’s partial summary judgment ruling and holding that the Montreal Convention allows a plaintiff to recover for her “damage sustained” from an accident, which includes damages for both physical injury and any accompanying emotional or mental harm. Plaintiff does not need to prove that the mental harm was caused by the physical injury.).

²⁰Mansour v. British Airways PLC, 2020 WL 1847750 at *3 (W.D. Washington) (“Article [21] provides a two-tiered system which allows a carrier to cap its liability [at 100,000 Special Drawing Rights] if it can prove it was not negligent.”).

²¹Warsaw Convention, Article 28.

²²Montreal Convention Article 33(1).

²³See e.g. Schell v. JetBlue Airways Corporation, 2022 WL 2484572 (E.D.N.C. Apr. 14, 2022). There, the court rejected plaintiff’s motion for summary judgment, finding that a jury could reasonably find that the airline was not negligent and therefore not liable for proven damages above the cap. In Schell, the JetBlue flight took off despite extreme cabin heat and one of two Air Cycle Machines having malfunctioned, and as a result, rapid pressure changes occurred within the cabin and the flight was forced to make an emergency descent. Id. at *1. During the descent the plaintiff experienced barotrauma, permanent hearing loss in her left ear, and several related emotional traumas. Id. at *2. To prove it was not negligent and to cap its liability, the defendant airline cited Lee v. Air Canada, where the court stated that “‘[f]or a defendant airline to demonstrate that it was not negligent, it can show that it had no duty to the plaintiff, that it did not breach any duty that did exist, or that the injury suffered by the plaintiff was not proximately caused by any breach made by the defendant.’” Id. (quoting Lee v. Air Canada, 228 F. Supp. 3d 302, 312 (S.D.N.Y. 2017) (emphasis in original)). The record revealed the leaky cargo door that caused the pressurization issues was neither visible nor did it trigger a pre-departure warning to the crew after maintenance was performed, and therefore the court found a jury could conclude JetBlue was not negligent in failing to discover the leak prior to takeoff. Id. at *2-3. Accordingly, the court ruled plaintiff had failed to demonstrate the absence of material issues of fact regarding JetBlue’s ability to show it was not negligent and denied plaintiff’s motion for summary judgment on liability. Id. at *3.

²⁴The Special Drawing Rights is an international reserve asset of the International Monetary Fund that can be exchanged for the currencies of IMF members.

²⁵Saks, 470 U.S. 392 at 405 (addressing the meaning of “accident” in the Warsaw Convention); see also Olympic Airlines v. Husain, 540 U.S. 644 (2004) (Airline liable when a passenger suffered an asthma attack aboard a flight where the passenger suffered from asthma and the flight attendant had rejected the passenger’s wife’s request to be moved away from smoking passengers). U.S. courts have applied the Saks definition of accident to Montreal Convention cases. See, e.g., Moore, 32 F.4th at 112. In a relatively recent decision, Armstrong v. Hawaiian Airlines, Inc., 416 F.Supp.3d 1030 (D. Ha. 2019), the court denied the defendant airline’s motion for summary judgment after a passenger who had requested, but was not provided, wheelchair assistance injured his arm collecting his bag from the baggage carousel, finding that fact issues remained whether the rejection of the requests for assistance constituted an accident under the Montreal Convention.).

²⁶Saks, 470 U.S. at 405-06. An injury may have more than one cause and the plaintiff need only “prove that some link in the chain was an unusual or unexpected event external to the passenger.” Id. at 406.

²⁷Phifer v. Icelandair, 652 F.3d 1222 (9th Cir. 2011).

²⁸32 F.4th 110 (1st Cir. 2022).

²⁹Id. at 112.

³⁰Id. at 114.

³¹Id. at 117.

³²Id. at 116.

³³Id. at 116-17.

³⁴Id. at 117.

³⁵Id. at 118.

³⁶Id. at 120-21.

³⁷The court noted the plaintiff’s and her travelling companion’s testimony, the testimony of plaintiffs’ expert that the staircase did not comply with certain voluntary standards concerning stair height, the lack of any warning by the airline concerning step down from the staircase and other evidence to find there were triable questions of fact. Id. at 121-22; see Lara v. Port Authority of New York and New Jersey, 2023 WL 2185853 (S.D.N.Y February 23, 2023) for how a plaintiff’s “simply self-serving testimony,” Beauvoir v. Flaco, 345 F. Supp 3d 350, 367 n.5 (SDNY 2018), can be used to illustrate a plaintiff’s expectation of an accident based on experience when their testimony is “consistent and uncomplicated,” Bellamy v. City of New York, 914 F.3d 727, 746 (2nd Cir. 2019).

³⁸The court noted a decision that it considered an “outlier” – Blansett v. Continental Airlines, 379 F.3d 177, 182 (5th Cir. 2004). In Blansett, the Fifth Circuit held that failure to warn of the risk of passengers developing deep vein thrombosis syndrome on long-haul flights could not be an accident because it was not unusual in the industry and complied with the expectations of the Federal Aviation Administration. The Moore court squarely rejected Blansett to the extent that the decision is read to spurn a “passenger-focused perspective as to whether an event is unexpected[.]” Moore, 32 F.4th at 119 n.7.

³⁹White v. Emirates Airlines, Inc., 493 Fed. Appx. 526 (Fifth Cir. 2012) (Flight crew’s alleged failure to properly respond to a passenger’s medical emergency was not an “accident” under the Montreal Convention when passenger suffered a heart attack shortly before landing and the time and circumstances did not support plaintiffs’ claim.).

⁴⁰Schell, WL 2484572.

⁴¹But see Magan v. Lufthansa German Airlines, 339 F.3d 158 (2nd Cir. 2003) (Genuine issues of material fact precluded dismissal of plaintiffs’ injury claim and required reversal of the district court’s entry of summary judgment. The Second Circuit found that the trial court erred as a matter of law in finding that turbulence that is light or moderate may never constitute an “accident” under the Warsaw Convention and also in finding that there was no genuine issue of fact concerning the degree of turbulence and whether the turbulence could constitute an accident.).

⁴²Id.

⁴³Vanderwall v. United Airlines, Inc., 80 F.Supp.3d 1324 (S.D. Florida 2015). 

⁴⁴Smith v. American Airlines, Inc., WL 3072449 (N.D. California 2009).

⁴⁵Wipranik v. Air Canada, WL 2441066 (C.D. California 2007).

⁴⁶Benamar v. Air France-KLM, WL 2153440 (C.D. California 2015).

⁴⁷Saks, 470 U.S. at 405.

⁴⁸Wallace v. Korean Air, 214 F.3d 293, 298 (2nd Cir. 2000) (Sexual molestation of a passenger by another passenger constitutes an accident under the Warsaw Convention.); see King, 284 F.3d at 360 for claims of racial discrimination; see Moreira v. TAM Linhas Aereas, WL 3353260 (M.D. Florida 2023), for claims of sexual assault against a minor.

⁴⁹Id. at 301.

⁵⁰Olympic Airlines, 540 U.S. 644 (Passenger requested to be moved three times after suffering an asthma attack due to cigarette smoking on plane.).

⁵¹Berlin v. JetBlue Airways Corp., WL 1423695 (E.D.N.Y 2022) (Flight crew ruled to have acted reasonably for tackling man who was believed to be yelling “ISIS,” but was instead requesting “ice” to help treat his heart issues.”).

⁵²Doe, 870 F.3d at 420; see also Moreira, WL 3353260.

⁵³Daimler v. Bauman, 134 U.S. 746, 749 (2014) (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 U.S. 2846, 2851 (2011) (Where a suit involves a foreign corporation, courts look to see that the corporation’s “affiliations with the State are so ‘continuous and systematic’ as to render [it] essentially at home in the foreign state.” Only then will a court find that general jurisdiction exists over the corporation such that that court can adjudicate “any and all claims against them.”).

⁵⁴Fisher, 521 F.Supp.3d at 854 (citing several, mostly unpublished trial court level decisions). In Fisher, jurisdiction was proper under the Montreal Convention’s “fifth jurisdiction” but the plaintiff’s suit was dismissed based on the lack of personal jurisdiction over the airline. See also, Kim v. Korean Airlines Co., Ltd, 513 F. Supp.3d 462 (D.N.J. 2021) (New Jersey does not enjoy personal jurisdiction over the defendant when passenger’s only theory of jurisdiction in New Jersey relates to ticketing for the flight. New York, however, where the airline conducts regular flights, maintains a passenger service branch, and engages in other business activities, does have personal jurisdiction where the accident occurred on a flight out of JFK.).

⁵⁵See Erwin-Simpson v. AirAsia Berhad, 375 F.Supp.3d 8 (D.D.C. 2019) (Court granted plaintiff’s motion to dismiss for lack of subject matter jurisdiction. Airline was not the “carrier” of the passenger and did not conduct business of carriage of passengers by air from U.S.); Best v. BWIA W. Indies Airways Ltd., 581 F. Supp. 2d 359, 362–63 (E.D.N.Y. 2008) (Finding “only the airline that actually transports the injured passenger can be held liable as ‘the carrier.’”); see also Kapar v. Kuwait Airways Corp., 845 F.2d 1100, 1103 (D.C. Cir. 1988) (In interpreting the Montreal Convention’s predecessor, the Warsaw Convention, the D.C. Circuit explained that “[a]lthough the term ‘carrier’ is not defined in the Convention, the manner in which it is employed, particularly in the chapter titled ‘Liability of the Carrier,’ makes clear that the Convention’s drafters were referring only to those airlines that actually transport passengers.”); Pflug v. Egyptair Corp., 961 F.2d 26, 31 (2d Cir. 1992) (Similar to Best’s interpretation of the Montreal Convention, Pflug interpreted the Warsaw Convention to mean “that only the airline that actually transports the injured passenger can be held liable as ‘the carrier’”).

⁵⁶Hosaka v. United Airlines, Inc., 305 F.3d 989 (Ninth Cir. 2002) (Warsaw Convention jurisdiction provisions preclude forum non conveniens doctrine dismissal); but see Khan v. Delta Airlines, 2010 WL 3210717 (E.D.N.Y. Aug. 12, 2010) (Montreal Convention does not preclude forum non conveniens dismissal.).

⁵⁷This typically requires use of a long-arm statute to assert jurisdiction; see Erwin-Simpson, 375 F.Supp.3d at 17 (The fifth jurisdiction is available in a state where the airline has a specified business presence, which is the basis of a compromise between the U.S. and other countries to allow Americans injured on international flights to sue in the U.S. while compromising with the concern that there would otherwise be too broad of a jurisdictional reach.).

⁵⁸261 F. Supp. 3d 666 (E.D. Va. 2017).

⁵⁹521 F. Supp.3d 847 (D. Arizona 2021). 

⁶⁰Id. at 858.

⁶¹Id.

⁶²Pursuant to 28 USC § 1631.

⁶³Fisher, 521 F. Supp.3d at 863.

⁶⁴Erwin-Simpson, 375 F.Supp.3d at 21. 

⁶⁵Id.

⁶⁶National Union Fire Insurance Company of Pittsburgh, Pa. v. UPS Supply Chain Solutions, Inc., 74 F.4th 66, 69 (2nd Circuit 2023).

⁶⁷Id. at 73, 76 (emphasis in original).

⁶⁸Montreal Convention, Article 33(2).

⁶⁹Id. Author’s emphasis.

⁷⁰National Union Fire Insurance Company, 74 F.4th at 75-6. 

⁷¹Id. at 72.

⁷²Selke, 261 F.Supp.3d at 670.

⁷³Pierre-Louis v. NEWVAC Corp., 584 F.3d 1052 (11th Cir. 2009) (Forum non conveniens dismissal of Montreal Convention lawsuit brought by residents of Martinique against Columbian airline and Florida-based travel agency was appropriate where the factors favored Martinique as the appropriate forum for the case).

⁷⁴In re Air Crash Over Southern Indian Ocean on March 8, 2014, 946 F.3d 607 (App. D.D.C. 2020).

⁷⁵Hosaka, 305 F.3d at 993 (“The Warsaw Convention overrides the discretionary power of the federal courts to dismiss an action for forum non conveniens.”); In re Air Crash Off Long Island New York, 65 F.Supp.2d 207, 214 (S.D.N.Y. 1999).

⁷⁶In re West Caribbean Airways, S.A., 619 F.Supp.2d 1299, 1326 (S.D. Florida 2007).

Author

• 

  Erin R. Applebaum

  Erin has dedicated her career to seeking justice for people harmed during air travel. As a partner in Kreindler’s aviation practice, she represents the interests of passengers severely injured or killed in general aviation accidents and commercial airline disasters. Erin is currently on the team representing numerous victims of the DCA midair collision and also handling cases on behalf of several passengers from the February 2025 Delta Air Lines crash in Toronto. She is widely considered by many in the aviation community to be a foremost authority on litigating claims governed by the Montreal Convention, the international treaty on commercial air travel.
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