International Air Accidents Require the Application of Special Laws Governed by the Montreal Convention

In 1999, the International Civil Aviation Organization (ICAO) met in Montreal, Quebec and adopted a new international treaty named the Convention for the Unification of Certain Rules for International Carriage by Air. The multilateral treaty has become known more commonly as the Montreal Convention and through its international ratification has been adopted by most UN member states.

The Montreal Convention governs the liability for air carriers in cases of injury or death of passengers during international flights. The United States ratified the convention in 2003. Currently, there are 133 parties to the Convention.

Originally written in French, the Montreal Convention has been interpreted in various languages and legal systems, including English, Arabic, Chinese, Russian, and Spanish.

Under Article 17 of the Montreal Convention, an air carrier can be subject to strict liability for injuries resulting from an “accident.” The definition of an accident is not set forth in the Convention, but US courts have interpreted it to mean an injury “caused by an unusual or unexpected event or happening that is external to the passenger.”

Under Article 17(1), an air carrier can be strictly liable for an injury up to 113,100 Special Drawing Rights (referred to as “SDRs”), approximately $160,000. Above that limit, an air carrier remains strictly liable for all damage sustained, without limit, unless the air carrier can prove either that “such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents,” or that “such damage was solely due to the negligence or other wrongful act or omission of a third party.” If the air carrier can prove it was without fault, then the 113,100 SDR limit will apply. It is the air carrier’s burden to prove it was free of negligence or other wrongful acts or omissions. This burden-shifting is the opposite of most personal injury claims in the United States, where the injured person typically bears the burden of proof.

Article 33 of the Convention provides that a plaintiff may choose to bring an action either: (1) where the carrier is domiciled; (2) where the carrier has its principal place of business; (3) “the place of business through which the contract has been made”; (4) the place of destination; or (5) where “the passenger has his principal and permanent residence.” Not all venues are created equal and selecting the most advantage location for a passenger to make a claim requires experience and expertise. Selecting the correct venue is important because it can significantly affect how a court chooses to substantive damages law, which can meaningfully impact the amount recoverable in an accident.

While commercial aviation crashes are rare events, the majority of commercial aviation incidents since 2010 have involved international flights, most governed by the Convention. Having experienced aviation lawyers can ensure a proper application of the Convention to ensure a passenger or their family maximizes the amount recoverable in an accident.