Passenger Liability under the Montreal Convention

• Author: John D. Holding, John S. Hoff
• Pages: 29-51

[29 ]

Chapter 3: Passenger Liability under the

Montreal Convention

A. DEATH AND BODILY INJURY

1) Ambit of Liability

Under the Montreal Convention, the carrier is liable for damage sus-

tained in the case of death or bodily injury to a passenger,

caused by an “accident,” ◆

on board the aircraft, or in the course of any of the operations ◆

of embarking or disembarking.1

a) “Accident”

Article 17, in referring to the above conditions of liability, uses the

words “the accident which caused the death or injury.” It follows that

the carrier is liable only for death or injury caused by accident.

As held by the United States Supreme Court in the leading case of

Air France v. Saks,2 in order to constitute an “accident,” there must be

an “unexpected or unusual event or happening that is ex ternal to the

passenger.” It is not suff‌icient that the passenger suffers injury as a

result of his own internal reaction to the usual, normal, and expected

operation of the aircraft.

1 Montreal Convention, Art. 1 7, para. 1.

2 CCH 18 Avi. 18,538, 105 S.Ct. 1338 (1985).

[ 30 ] US MANUAL OF INTERNATIONAL AIR CARRIAGE

However, an entirely internal condition such as a heart attack, if

caused or aggravated by an external unexpected or unusual event,

may be held to have been caused by accident, in which case the “acci-

dent” is the external event and not the resulting interna l condition.3

Mere passive omission to act is generally not considered to be an

“event.” The deliberate failure or refusal to act has in certain circum-

stances been held to amount to an action constituting an “event.”

4 The

carrier’s failure to provide a previously ordered wheelchair at the air-

cra ft fo r an i nf‌irm pass enger was he ld to b e an “a ccide nt,” i n the r ecent

case of Bunis v. Israir Airlines & Tourism Ltd.5 Alt hough the passenger

collapsed after struggling to reach a public area where he was no lon-

ger in the course of disembarkation, the court held that the accident

which caused the heart attack was the failure to provide the wheel-

chair, which occurred during disembarkation.

Intentional conduct has been considered to constitute an “acci-

dent,” provided that it is unexpected or unusual .6

It has also been held in a number of cases that, for an event to be

considered an “accident” under Article 17, it must have been related to

the conduct of air carriage.7

i) Unexpecte d or Unusual “Event”

Normal or expected operating conditions or procedures are generally

not considered to constitute “accidents.”

Light or moderate turbulence, which is normal and expected, is

not suff‌icient to be considered an “accident.” The Court in Air France

v. Saks,8 observed that air turbulence is not in itself an unexpected or

unusual event, and up to a certain level of severity, it is commonplace.

“Severe,” turbulence which may involve abrupt changes in altitude

and air speed, the impossibility of food ser vice or walking around,

3 Seg uritan v. Northwest Airlines, 86 A .D.2d 658, 446 N.Y.S.2d 397,aff‌ir med 57

N.Y.2d 767, (N.Y., 1982).

4 See below notes 20–27.

5 511 F.Supp. 2d 319 (E.D.N.Y. 2007).

6 See below notes 28 –30.

7 See below notes 31–35.

8 Above note 2.