Domestic Or International Itinerary?
By John McKay, Aviation Attorney and former Adjunct Professor of Aviation Law
Lots of things can happen on a flight to make it a less than pleasurable occurrence: your checked luggage can get lost or delayed, you can miss an important meeting due to a flight delay, or you can be injured during the flight or while boarding or disembarking. Unfortunately, these are events that occur every day to some of the millions of airline passengers in the aircraft that crisscross the skies. One little-known fact of aviation law is that two passengers on the same flight could suffer identical mishaps and have vastly different legal rights. That is because distinct sets of legal rules apply to the “domestic” versus “international” passenger.
“But wait,” you say, “international passengers are easy to distinguish – they’re the ones on flights that cross an ocean.” That is indeed true, but they continue to be international passengers when they connect to flights that take off and land entirely within one country. Let’s say you are a passenger on a flight from Washington Dulles to Denver (or, if you’re Canadian, from Toronto to Calgary). You are clearly on a domestic itinerary. But the passenger across the aisle from you might be on the final leg of an itinerary that started that morning in Geneva, Switzerland. That passenger is still on an international itinerary in the eyes of the law, and that creates an enormous distinction as far as her legal rights are concerned.
The rights of domestic passengers in claims against the airlines are, understandably, governed by the laws of the land that they pass over. Some of those laws are state or provincial, while others are federal. But the rights of an international passenger – defined as a person traveling on an international itinerary, even if the particular flight leg occurs entirely within one country – are governed by an international treaty known as the “Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999,” or “Montreal Convention” for short.
The Montreal Convention has an interesting history. Back in the early days of international airline flights, the prevailing concern among governments was that lawsuits against the airlines, particularly for flights that disappeared into the ocean, would bankrupt the airlines and hinder the expansion of a much-needed “fledgling” industry. At a meeting of nations held in Warsaw, Poland, and Paris, France, in 1929, a treaty on liability for incidents on international flights was created. It became known as the “Warsaw Convention,” and it governed suits against airlines by international passengers for the next seven decades. Due to its foundational premise of protecting the airlines from economic disaster, it severely limited what international passengers could recover in suits against the airlines. Several amendments were made over the years to attempt to make it fairer to those who were injured or lost family members on international flights, but those amendments never brought the limitations up to anything close to reasonable compensation for such losses.
Needless to say, the Warsaw Convention’s protections, which were intended to protect a “fledgling” international airline industry, became hugely unpopular once the airlines became multimillion-dollar enterprises. It was seen as unjust that a person injured by a defective product manufactured by a Fortune 500 company could recover substantially more compensation in court than a person injured or even killed on an international airline flight. The situation heated up to the point that some nations, notably the United States, threatened to restrict international landing rights unless air carriers voluntarily waived the protections of the Warsaw Convention.
The Warsaw Convention was essentially scrapped by most countries in 1999, with the adoption of the Montreal Convention at the world offices of the International Civil Aviation Organization (ICAO), a branch of the United Nations that is dedicated to the standardization of civil aviation procedures and laws worldwide. The Montreal Convention, which officially entered into force in 2003 and has now been accepted in most of the nations of the world, entirely eliminates the liability limits for injuries or death occurring on international flights. In other words, there is no longer a fixed limit imposed on the amount that a person injured, or the surviving family members of a person killed, can recover in court. So long as the lawsuit is filed before the expiration of the Montreal Convention’s two-year statute of limitations (measured from the date the flight landed or was scheduled to land at its destination), and so long as the airline is unable to exonerate itself by proving that the passenger caused or contributed to his or her own injury (something that gets proven about as often as verified Yeti sightings occur), then the amount of damages recoverable against the airline is unlimited.
Even better, the Montreal Convention imposes strict liability – meaning that the airline is not allowed to put up any defense (other than that exceedingly rare self-imposed injury defense) – for damages up to a certain amount. That amount, which is subject to changes periodically to adjust for inflation, currently stands at 128,821 SDRs. Never heard of an “SDR”? Don’t worry, most people haven’t. It stands for Special Drawing Right, and it is an artificial currency used as a measurement by the International Monetary Fund. By “artificial,” I mean that you cannot obtain an SDR at the bank and stuff it into your wallet. Think of it like the Dow Jones Industrial Average, which is a bundle of representative industrial stocks whose daily fluctuating values are averaged together to provide a quick and easy number to indicate the health of the stock market. Similarly, an SDR is the product of averaging, on a daily basis, the values of a number of world currencies that have been “bundled.” Luckily for everyone, we can simply go to a currency conversion site like www.xe.com to obtain a daily quote for the SDR. As of January 14, 2020, an SDR is worth USD $1.38 (CAD $1.80), so 128,821 of them equal USD $177,893 (CAD $232,243).
What does that figure mean to our international passenger with an injury claim or claim for the loss of a loved one in an aviation death? That is the amount of damages (i.e., USD $177,893 or CAD $232,243 as of 1/14/2020) that he or she could recover from the airline in a lawsuit without the airline being able to put up a fight. But that is not the limit of what she can recover. As stated above, there is no such limit. The Montreal Convention merely says that for damages above 128,821 SDRs, the airline is allowed to assert two specific defenses to liability: 1) the injury was not caused by the negligence or other wrongful act of the airline or its employees; and 2) the injury was entirely caused by the negligence or other wrongful act of a third party. Beyond merely asserting one of those defenses, the airline has to prove it with evidence. If it fails to prove the defense, the defense ceases to exist. And no defense essentially means strict liability once again.
All that the international passenger has to prove is that she sustained an injury caused by an “accident” while aboard the flight and traveling on an international itinerary, or while boarding the flight or disembarking from it. The courts have sometimes struggled with what exactly constitutes an “accident” for purposes of the Montreal Convention, but the regularly accepted definition is that it is something that is unusual and unexpected and happens from a source external to the passenger. In other words, the passenger did not bring the cause of the injury on board with her, inside of her body. Getting sick from the flu is not an “accident,” for example. Getting sick from the food the airline served you is. Having a heart attack is not an “accident,” although having a heart attack and not getting appropriate treatment from the airline personnel might be. Getting conked on the head by the bowling ball a fellow passenger decided to put in the overhead storage bin is definitely an “accident.” But if the injured passenger seeks to recover more than 128,821 SDRs as a result of being hit by the bowling ball, then the airline might argue, to defend itself against only those damages above the 128,821 SDRs, that the damages were entirely caused by the bowling ball’s owner. (But an airline employee probably saw the passenger bring the bowling ball aboard, and might have even seen him placing it in the overhead bin, so the airline’s lack of complicity in the tragedy is debatable).
In many ways, the modern system heralded by the Montreal Convention provides a streamlined and largely unrestricted path to recovery. And, as an added benefit, the fact that the governing law is an international treaty means that a passenger is entitled to bring a claim in federal court, where a faster docket system can often mean an earlier result.
So, what about that “domestic” passenger suffering a loss or injury on the same flight? He is probably going to have to prove that the airline was negligent. The strict liability provisions of the Montreal Convention, which eliminate that proof requirement for the international passenger, are not available to him. Also, he might face a challenge on a U.S.-based claim that federal law pre-empts his right to recover. There will often be some question regarding whose law applies – the state where he boarded, the state where the aircraft landed, his home state or federal law. His claim might also be limited by tariff or the fine print of the airline’s contract of carriage. As you can see, it definitely makes a big difference whether a passenger was on a domestic or international itinerary when an injury occurred or a loss was suffered. That is why the nature of the itinerary is often the first question that I ask a potential client.