British Airways' Position on Montreal Convention Accident Determination Rejected
May 5, 2025
By: Erin R. Applebaum, Partner
This article was first published in Volume XLVII (2022) of the Annals of Air and Space Law.
United States Court of Appeals for the First Circuit1
On April 29, 2022, the United States Court of Appeals for the First Circuit handed down a landmark decision in Moore v British Airways PLC (Moore) clarifying how the courts should determine an essential element of a Montreal Convention claim: whether an “accident” has occurred under Article 17. The decision provides critical support for plaintiff passengers who are injured by an event that the passenger considers to be unusual or unexpected, while the defendant airline deems the occurrence to be an ordinary part of air travel.
I. FROM WARSAW TO MONTREAL
The laws governing the legal rights of passengers injured or killed on international flights are notably different from the laws governing most personal injury or wrongful death cases. International aviation cases have different deadlines, unique liability triggers, and challenging jurisdictional hurdles. Claims are litigated under the Montreal Convention,2 a multinational treaty that provides a single universal liability regime governing injuries and deaths occurring on international flights. This section provides a brief introduction to the Montreal Convention and its predecessor, the Warsaw Convention.
A. THE WARSAW CONVENTION
The international aviation laws date back to the dawn of commercial aviation. In October of 1929, just two years after Charles Lindbergh made his historic flight from Paris to New York, a draft set of rules pertaining to liability in international aviation was presented at the Warsaw Conference. These rules became known as the Warsaw Convention, which entered into force in 1933.3
The Warsaw Convention’s primary purpose was to limit the liability of air carriers “in order to foster the growth of the fledgling commercial aviation industry.”4 But as time passed and the aviation industry grew, signatory countries grew frustrated by the Warsaw Convention’s low liability limits and perceived deference to industry.
B. THE MONTREAL CONVENTION
The drafters of the Montreal Convention of 1999, which entered into force in 2003, attempted to better protect passengers while striking an “equitable balance of interests”5 with the airlines.
The Montreal Convention updated, modernized, and largely replaced the Warsaw Convention.6 The Montreal Convention applies to “international carriage” by air, where the place of departure and place of destination are within the territories of signatory countries.7 The Montreal Convention, like the Warsaw Convention before it, supersedes domestic liability law; if a claim that falls within the Montreal Convention’s scope is invalid under the Convention, there will be no remedy under any local law.8
The Montreal Convention has a two-year limitations period to bring injury or death claims.9 Article 17 of the Montreal Convention imposes strict liability on air carriers for damages up to 128,821 Special Drawing Rights10 – approximately US$ 170,000 – in the event of accidental death or bodily injury of a passenger.11 A plaintiff may exceed the cap on damages if the airline cannot disprove its responsibility for the plaintiff’s injuries.12 Airline defendants can also reduce their liability under the Montreal Convention by proving that the passenger’s own conduct, or that of a third party, contributed to the passenger’s damages.13
II. LIABILITY FOR “ACCIDENTS” AND THE REASONABLE PASSENGER
To establish liability against an airline under the Montreal Convention, the plaintiff must prove that he or she sustained a bodily injury14 as the result of an “accident” which occurred either on the airplane or during the course of boarding or disembarking.15 The courts have liberally characterized a myriad of varying circumstances as Article 17 accidents.16 Although the occurrence of an “accident” is a prerequisite to success in a Montreal Convention claim, the treaty does not explicitly define the term. This leads to frequent disagreements between litigants over its meaning. In cases where no question of fact exists, the issue of whether an Article 17 accident has occurred may be decided by the court as a matter of law.17 In cases where there is contradictory evidence, however, it is for the trier of fact to determine whether a passenger’s injury was caused by an accident.18
The United States Supreme Court has interpreted “accident” in the context of the Montreal Convention to mean “an unexpected or unusual event or happening that is external to the passenger.” Where a passenger’s injury results from the passenger’s “own internal reaction to the usual and expected operation of the aircraft,” however, “it has not been caused by an accident.”19 The court noted that the term should be applied “flexibly” and “broadly,” and only “after assessment of all the circumstances surrounding a passenger’s injuries.”20 The term “unexpected and unusual” was put into context by the Massachusetts District Court in Maxwell v Aer Lingus Limited, in which the court held that a bag of liquor bottles falling from an overhead bin “[w]as an accident in the sense of being an ‘unexpected or unusual event’” because a “reasonable passenger […] would not expect, as an ordinary incident of the operation of the aircraft, to be struck on the head by a falling object when the bin above her seat is opened by a fellow passenger.” In other words, the determination of whether or not an occurrence was “unexpected or unusual” should be based on a reasonable passenger’s expectations of what could occur during an ordinary commercial flight. The court also explained that “[a]n event may be a foreseeable, or even accepted, risk of a given activity, while at the same time being unexpected.”21
Defendant airlines tend to argue that whether an occurrence was “unexpected or unusual” should be determined by an objective standard, because a uniform metric will ostensibly eliminate perceptive discrepancies between passengers with varying levels of experience aboard commercial aircraft. For instance, a moderate turbulence event that a reasonable seasoned traveller would consider usual and expected conceivably could be deemed completely unusual and unexpected by a reasonable first-time flier. Conversely, plaintiff passengers tend to argue that whether something is “unexpected or unusual” is an inherently subjective concept and should be interpreted accordingly by the courts.
III. THE PROBLEM OF PERSPECTIVE
In Moore, a passenger was injured while deplaning from a Boeing 777 at London’s Heathrow Airport. The flight did not deplane the passengers through the usually employed jet bridge because it was inoperable. Instead, the flight deplaned passengers down a mobile staircase and onto the tarmac. The staircase steps had riser heights of 7.4 inches, with one notable exception: the distance from the last step to the ground measured thirteen inches. The passenger fell while descending from the last step onto the ground. She claimed that the distance to the ground was further than she expected, and that the unexpected drop caused her to lose her balance and fall.22
A. THE DISTRICT COURT
The Massachusetts District Court, departing from the position it assumed in Maxwell, granted summary judgment for the airline. The District Court found that the plaintiff’s injuries had not been caused by an accident within the context of the Montreal Convention because the plaintiff could not show that the use of a mobile staircase was unusual in the aviation industry.23
But the District Court’s basis for summary judgment was inherently flawed because it addressed the wrong event, thanks in part to the plaintiff’s clumsily argued opposition. Plaintiff mistakenly chose to identify the use of a mobile staircase as the unexpected and unusual occurrence, even though her expert had presented evidence that the final step down was much higher than those preceding it.24
With that in mind, the District Court reasoned that “the use of a mobile staircase to disembark” was not an unexpected event and noted that British Airways had provided evidence that using a mobile staircase to disembark passengers is a routine operation in the industry.25 In a vacuum, the District Court’s basic reasoning is correct. But in consideration of the totality of the evidence, the District Court made the wrong call, and the plaintiff was right to appeal to the First Circuit.
B. THE FIRST CIRCUIT
The First Circuit reversed the lower court’s decision, and in so doing, squarely addressed the question of whose perspective should dictate whether something “unexpected” or “unusual.” According to the First Circuit, “the problem of perspective looms large: what is or not expected often lies in the eye of the beholder.”26
From the airline’s perspective, there was nothing “unusual or unexpected” about the staircase: a post-accident inspection confirmed that the stairs were in their normal operating condition, free of defects and working as intended.27 Though British safety standards indicate that the maximum rise people can be expected to negotiate safely is 8.7 inches, those standards are merely voluntary guidance that British Airways is not required to follow.28 Plaintiff’s counsel even 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.’”29
The plaintiff, however, testified that the long step down to the ground was “further down than [she] was expecting,” while a second passenger testified that she “was surprised at the last step being a little further than a normal cadence of a staircase” and that “the bottom step didn’t arrive when I thought it would.”30
Evidently, though the height discrepancy between the final step and those preceding it may not have been unusual or unexpected from an industry standpoint, it was most certainly abnormal to the passengers descending the staircase. The core issue for the First Circuit then became one of perspective – namely, whose perspective should prevail?
The plaintiff submitted that the First Circuit should consider the perspective of a “hypothetical average traveler” in determining whether an occurrence was unusual or unexpected. British Airways argued that the First Circuit should adopt the perspective of the airline industry.31 In a major victory for plaintiffs, the First Circuit vacated and remanded the District Court’s decision on grounds that accident determination should be based on the perspective of a “reasonable passenger with ordinary experience in commercial air travel.”32
In analyzing the lower court’s decision, the First Circuit focused its attention on the phrase “unusual or unexpected,” noting that the District Court had analyzed only whether the cause of plaintiff’s fall had been unusual, ignoring entirely whether it had been unexpected. The court noted the Saks’ court’s intentional use of “or” rather than “and” in defining an “accident,” concluding that plaintiff need only fulfill one of the two terms, not both.33 In other words, while the arrangement of the subject staircase may not have been unusual within the industry, this fact does not preclude the possibility that the height discrepancy between the stairs was unexpected. But the question of perspective remained: unexpected by whom?
The First Circuit examined worldwide authority in making its decision, looking favourably on Lord Scott’s lead speech in Deep Vein Thrombosis and Air Travel Group Litigation – a Warsaw Convention case heard by the House of Lords. Lord Scott expressed the view that courts must examine whether the event was “‘unintended and unexpected’ from the viewpoint of the victim of the accident.”34 However, the First Circuit pointedly rejected the notion that a passenger’s subjective expectations should control whether an event is an “accident,” noting that the test must be an objective one due to potential for idiosyncrasies among passengers.35
In defense of its rejection of a subjective test unique to each plaintiff, the First Circuit also looked to the Court of Justice of the European Union (CJEU), which explained that a purely subjective approach “could extend [the concept of ‘accident’] in an unreasonable manner to the detriment of air carriers.”36 However, the First Circuit was clear that it would not defer to the judgment of the air carrier or the aviation industry. The First Circuit stated that “what is […] ‘unexpected’ […] should be ascertained from the viewpoint of an ordinary, reasonable passenger,”37 quoting with approval a decision from the Supreme Court of Victoria38 that was subsequently affirmed by the High Court of Australia.39 The First Circuit noted that the Montreal Convention is a treaty that “favors passengers rather than airlines” and plainly rejected the British Airways’ argument that the staircase’s bottom step could not have been unexpected or unusual since it was normal throughout the industry.40
The essential holding in Moore is that an event may be deemed unexpected “when a reasonable passenger with ordinary experience in air travel, standing in the plaintiffs’ shoes, would not expect the event to happen.” Based on that definition, the First Circuit found that there was sufficient evidence41 to support a finding that an accident occurred.42 The case was remanded back to the District Court and settled before trial.
IV. FINAL REMARKS
The Moore decision is important because it will permit cases to go forward when passengers are injured by events that could be considered unusual or unexpected by an ordinary and reasonable traveller, even if the airline shows that no proprietary or regulatory standards were violated in the accident. On the other hand, the decision renders the subjective expectations of passengers irrelevant: plaintiffs are prevented from arguing the pre-eminence of their own opinions, while at the same time the airlines are compelled to meet ordinary passenger expectations. Ultimately, the First Circuit has brokered a compromise between passengers and the aviation industry – just as the Montreal Convention’s drafters intended.
Footnotes:
1 Moore v British Airways PLC, 32 F 4th 110, 120 (1st Cir 2022) [Moore]. * Partner, Kreindler & Kreindler LLP.
2 The Montreal Convention is formally known as the Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999, 2242 UNTS 309; S Treaty Doc No 106-45 (2000), (entered into force 4 November 2003) [Montreal Convention].
3 The Warsaw Convention is formally known as the Convention for the Unification of Certain Rules Relating to International Carriage by Air, 12 October 1929, 49 Stat 3000, 137 LNTS 11 (entered into force 13 February 1933).
4 Eastern Airlines v Floyd, 499 US 530, 546 (1991).
5 Moore, supra note 1 at 120 (citing Montreal Convention, supra note 2 at preamble).
6 The Montreal Convention entered into force in the United States on November 4, 2003.
7 Montreal Convention, supra note 2 at art 1(2); See Motlagh v Qatar Airways, QCSC, 445 F Supp 3d 852, 860 (SD Cal 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 US under the Warsaw Convention).
8 Smith v American Airlines, Inc, Case No C 09-02903 WHA, 2009 WL 3072449 at 1 (ND Cal 2009); Seales v Panamanian Aviation Co, Case No 07-CV-2901 (CPS) (CLP), 2009 WL 395821 at 7–8 (2d Cir 2009); Jones v USA 3000 Airlines, Case No 4:08–CV–1855 CEJ, 2009 WL 330596 at 3–9 (ED Mo 2009); Knowlton v American Airlines, Inc, Civil Action No RDB–06–854, 2007 WL 273794 at 4 n 3 (D Md 2007).
9 See Cohen v American Airlines, Inc, 13 F 4th 240 (2d Cir 2021) (Montreal Convention pre- empts all local law, including the limitations period); Dagl v Delta Airlines, Inc, 961 F 3d 22 (1st Cir 2020) (“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).
10 See Montreal Convention, supra note 2 at arts 21(1), 23; Inflation Adjustments to Liability Limits Governed by the Montreal Convention Effective December 28, 2019, 85 Fed Reg 3104 at 3105 (2020); International Monetary Fund, “SDR Valuation”, online: International Monetary Fund <www.imf.org/external/np/fin/data/rms_sdrv.aspx>.
11 In re Korean Air Lines Disaster, 932 F 2d 1475, 1485 (DC Cir 1991).
12 Montreal Convention, supra note 2 at art 21(2).
13 Ibid; Eastern Airlines v Floyd, supra note 4.
14 The plaintiff must show that he sustained a physical injury; purely psychological injury is not sufficient. Tharp v Delta Air Lines, Inc, 552 F Supp 3d 1091, (D Or 2021) (The court found that under the Montreal Convention, the airline is not liable where the passenger did not suffer a bodily injury from an alleged assault by a fellow passenger.) Tharp followed the Supreme Court’s decision in Eastern Airlines v Floyd, supra note 4 at 552 (interpreting the Warsaw Convention).
15 Air France v Saks, 470 US 392, 405 (1985) (addressing the meaning of “accident” in the Warsaw Convention); see also Olympic Airlines v Husain, 540 US 644 (2004) (airline liable when a passenger suffered an asthma attack and died aboard a flight where the flight attendant rejected the asthmatic passenger’s wife’s request to be moved away from smoking passengers). Courts have applied the Saks definition of “accident” to Montreal Convention cases. See e.g. Moore, supra note 1 at 112.
16 See e.g. Krystal v British Overseas Airways Corp, 403 F Supp 1322 (CD Cal 1975) (aircraft hijacking); Evangelinos v Transworld Airlines, Inc, 550 F 2d 152 (3d Cir 1977) (in-flight Error! Main Document Only.terrorist attack); Wallace v Korean Air, 214 F 3d 293, 299 (2d Cir 2000) (sexual assault against a sleeping passenger); Kantonides v KLM Royal Dutch Airlines, 802 F Supp 1203, 1209 (DNJ 1992) (passenger injured on a moving walkway in the airport terminal); Chutter v KLM Royal Dutch Airlines, 132 F Supp 611 (SDNY 1955) (passenger injured on the boarding ramp while waving to her daughter as the ramp pulled away from the plane); Fishman v Delta Air Lines, Inc, 938 F Supp 228 (SDNY 1996) (burns suffered by a minor as the result of a flight attendant spilling scalding water); McCarthy v Northwest Airlines, Inc, 862 F Supp 17 (D Mass 1994) (passenger injured by falling on an airport escalator); Gezzi v British Airways PLC, 991 F 2d 603 (9th Cir 1993) (passenger injured by a slip and fall caused by the presence of water on stairs); Shen v Japan Airlines, 43 F 3d 1459 (2d Cir 1994) (prolonged detention of passengers without food, plus illegal search and seizure); Walsh v KLM Royal Dutch Airlines, Case No 09-civ-01803 RKE, 2011 WL 4344158 (SDNY 2011) (passenger injured by a trip and fall over a low-positioned metal bar in the departure terminal); Waxman v CIS Mexicana de Aviacion SA de CV, 13 F Supp 2d 508, 512 (SDNY 1998) (passenger struck in the leg by a hypodermic needle protruding from the seat in front of him); Wipranik v Air Canada, Case No CV 06-3763 AHM (AJWx), 2007 WL 2441066 (CD Cal 2007) (jolt from one passenger’s reclining seat caused the tray table behind it to shake and spill hot tea onto another passenger).
17 Saks, supra note 15 at 405.
18 Ibid.
19 Ibid at 405–06 (an injury may have more than one cause; the plaintiff need only “prove that some link in the chain was an unusual or unexpected event external to the passenger”).
20 Ibid.
21 Maxwell v Aer Lingus Ltd, 122 F Supp 2d 210, 211–12 (D Mass 2000).
22 Moore, supra note 1 at 112.
23 Moore v British Airways PLC, 511 F Supp 3d 1, 6 (D Mass 2020).
24 Ibid.
25 Ibid.
26 Moore, supra note 1 at 114.
27 Moore (2020), supra note 25 at 6.
28 Ibid at 6.
29 Moore, supra note 1 at 116
30 Ibid at 113.
31 Ibid at 117.
32 Ibid at 117.
33 Ibid at 116.
34 Ibid at 118 (quoting Deep Vein Thrombosis and Air Travel Group Litigation, Re, [2005] UKHL 72, [2006] 1 AC (HL) 495, at para 14).
35 Ibid at 118
36 YL v Altenrhein Luftfahrt GmbH, C-70/20, [2021] ECLI:EU:C:2021:379 at para 35.
37 Moore, supra note 1 at 118–119.
38 Qantas Ltd v Povey, [2003] VSCA 227, 11 VR 642 at para 22.
39 Povey v Qantas Airways Ltd, [2005] HCA 33, 223 CLR 189.
40 Ibid at 117; Though not mentioned in its opinion, the First Circuit’s analysis was correct for another reason: although regulatory requirements may be relevant to the “accident” analysis, they are not dispositive of it. Phifer v Icelandair, 652 F 3d 1222, 1224 (9th Cir 2011). In fact, the Supreme Court has suggested that a per se rule requiring a regulatory violation would be outright improper. Ibid (citing Saks, supra note 15 at 405).
41 The court cited the testimony of plaintiff Moore and her travelling companion; the testimony of plaintiff’s expert that the staircase did not comply with certain voluntary standards concerning stair height; the lack of any warning by the airline concerning the step down from the staircase; and other evidence to find the existence of triable questions of fact. Moore, supra note 1 at 121–22.
42 The First Circuit noted a decision that it considered an “outlier”: Blansett v Continental Airlines, 379 F 3d 177, 182 (5th Cir 2004). In Blansett, the United States Court of Appeals for the Fifth Circuit held that failure to warn passengers of the risk of developing deep vein thrombosis on long-haul flights could not be an accident because such practice 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 interpreted to reject a “passenger-focused perspective as to whether an event is unexpected.” Moore, supra note 1 at 119 n 7.
Author
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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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