Passenger Liability under the Montreal Convention

AuthorJohn D. Holding, Q.C., MRAeS
[ 17 ]
Chapter 3: Passenger Liability under the
Montreal Convention
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 accident,
on board the aircraft or in the course of any of the operations of
embarking or disembarking.1
a) “Passenger”
Articles 1 of both Conventions provide that they apply equally to gra-
tuitous carriage by an air transport undertaking. In Johnson Estate
v. Pischke,2 it was held by the Saskatchewan Cour t that the claims
regarding two deceased passengers were covered by the Convention
although they were gratuitous passengers in a private aircraft on an
instructional f‌light to the United States on which the carriage of pas-
sengers was contrary to the instructor’s licence.
1 Montreal Convention, art. 1 7, para. 1.
2 [1989] 3 W.W.R. 207 (Q.B.)
[ 18 ] british manual of international air carriage
In Herd v. Clyde Helicopters Ltd.,3 a case involving a domestic f‌light
to which the Convention rules applied by statute, the House of Lords
held that a policeman, on board for the purpose of ground surveil-
lance under a charter agreement and not employed by the carrier or
otherwise engaged in the operation of the helicopter, was properly
regarded as a passenger.
b) “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,4 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. It was accordingly found that the plaintiff’s
hearing loss caused by normal aircraft pressurization was not caused
by accident.
The above def‌inition of “accident” has since been widely adopted,
most recently in 2006 by the House of Lords in Deep Vein Thrombosis
and Air travel Group Litigation.5 It was held that deep vein thrombosis
(DVT) due to prolonged and conf‌ined sitting which occur red under
normal f‌light conditions, was not caused by accident. T he cause was
not an unexpected or unusual event or happening, nor was there any
causal event external to the passenger.
In the above case, it was argued that the airline’s failure to warn
passengers of this risk and to advise of preventative measures was an
accidental cause. It was noted that there was no evidence that the air-
line’s alleged failure departed from industry standards or regulations
so as to be considered unexpected or unusual. The issue was a lso
raised as to whether failure to act could be considered an accident.
3 1997 SCLR 308 (HL)
4 470 U.S. 392 (1985), 18 Avi. 18538; see also Chaudh ari v. British Airways Plc.,
[1997] EWCA Civ. 1413 (C.A.).
5 [2006] A.C . 495, [2006] 1 All E.R. 786

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