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Oriel Chambers Journal

 

Snakes on a Plane: Can I use the Montreal Convention?

Tuesday, November 22, 2016

When Samuel L Jackson told his fellow passengers that he was fed up of the proliferation of snakes on the plane, he was probably more focused on survival than answering the slippery question of the appropriate defendant in an international personal injury claim.
For those of you who have not seen the seminal work in question, it concerns (as keen readers might already suspect) snakes, who have been let loose on a plane. The snakes go on to kill various passengers. For the purposes of our discussion, we will assume that the airline was storing the snakes, of their own volition, and that the escape was due to their negligence.
When we talk about personal injury claims arising during air travel, we are referring to Carriage by Air claims. Owing to the international nature of air travel it is important to have some degree of consistency across national boundaries when looking at questions of jurisdiction and liability. That need for consistency was initially addressed by the Warsaw Convention 1929.
The international framework has developed its own inconsistencies over the years, with some jurisdictions like England & Wales incorporating elements of the Warsaw Convention into domestic law, with others declining to ratify conventions after the Warsaw Convention. This has given rise to some countries being subject to a “Warsaw System” (a broad term for several differing domestic approaches who have a shared ancestor in the Warsaw Convention 1929). The response to this fragmentation of the applicable law is the Montreal Convention 1999.
It should be noted well that for reasons beyond the remit of this article the Montreal Convention has not superseded or displaced the Warsaw System. As such, should Mr Jackson be considering a personal injury claim as he scrubs snake venom out of his best leather jacket, his first question should be this: What convention system applies?

To keep an extremely complex and dense area of law as simple as possible, we will assume that we, as English and Welsh Lawyers, are keen to be faced with a case to which the Montreal Convention applies. The Montreal Convention protects passengers by introducing a two-tier system eliminating the previous requirement upon claimants to prove wilful neglect to obtain damages above a certain amount. We have now spoken to Mr Jackson, who informs us that the flight in question was a domestic flight, across the United States.

The Montreal Convention applies only to international carriage, and in order for it to apply, it must have been ratified by at least one nation involved in the international carriage applicable to the case. The United States is indeed a signatory to the Montreal Convention, but can a domestic flight ever be considered to come within the remit of “international carriage”?

The phrase “international carriage” refers to any carriage which, according to the agreement between the parties, the place of departure and the place of destination are situated either within the territories of two state parties or within the territory of a single state party if there is an agreed stop in place within the territory of another state even if that state is not a state party. By and large, therefore, international carriage can be taken to have its ordinary common-sense meaning, except in the occasional case where a domestic flight includes a stop in another country.

Therefore, the Montreal Convention would be of no application to Mr Jackson’s case. He would have to look to the US domestic laws in such a case.

Let us assume for a moment that in fact, Mr Jackson was travelling to the UK when he encountered reptilian complications. This allows Mr Jackson to ask his second question: Is either the place of departure or the place of destination a signatory to the Montreal Convention? We have here a classic case – one in which both member states are signatories to the Montreal Convention. He has therefore answered the second question in the affirmative.

Having overcome this second hurdle, it must be borne in mind that the Montreal Convention is not of blanket application. We must also answer the question of liability for the particular damage suffered. Fortunately, in the present case, this is a very simple criterion to satisfy – the Montreal Convention makes the carrier liable subject to just one condition: that the accident which caused death or injury took place on board the aircraft or during any of the operations of embarking or disembarking.

Another pitfall of which the Travel Lawyer should beware is the definition of “accident”. We are dealing with international law here, and as such there will always be elements which do not comfortably marry up with English common law concepts. The American case of Air France v. Saks 470 US 392 (1985) confirmed that an accident must be an unexpected, unusual, event or happening external to the passenger. The Claimant in that case suffered a loss of hearing in in her left ear as a result of the operation of the cabin pressurisation system. In holding that the Claimant’s injury was not an accident within the meaning of Article 17 of the Warsaw Convention, the Supreme Court distinguished between the use of the word “accident” to describe an event causing harm or loss and the use of the word to describe the occurrence of hurt or loss itself. The reasoning was approved by the House of Lords in KLM Royal Dutch Airlines v. Morris [2001] 3 All ER 126.

Bad food, bad toilets, and a lack of legroom are staples of air travel and one is unlikely to succeed in such a claim in any event. The greater anomaly comes when one considers, for example, a wet floor by the toilet. Is that so unusual or unexpected that a claim could be sustained for personal injury arising out of a fall? Such questions are unlikely to concern the cast of Snakes on a Plane in any event – it is difficult to conceive of a more unusual and unexpected event or happening during air travel.

In a similar vein, one should note that the limitation period for bringing an action under the Montreal Convention is a slightly more restrictive 2 years. There is no mechanism to dis-apply or extend the limitation period; nor is there any limitation stasis owing to a child’s lack of majority.

Finally, having found that his flight crosses through the correct jurisdictions to make the Montreal Convention effective; that his particular damage has good prospects of being deemed an “accident”; and that limitation has not yet expired, Mr Jackson must tell us where he wants to claim to be brought.

Article 33 of the Montreal Convention gives us a wide remit in this respect. The claim must be brought in the territory of one of the state parties either before the court of the domicile of the carrier or of its principal place of business or where it has a place of business through which the contract has been made or before the court at the place of destination. In cases such as this, where we are dealing with death or injury, the claimant has the additional option of bringing the claim in a country where he has his main residence and to or from which the carrier operated services for carrying passengers by air.

In conclusion, this is an extremely complex area of law. As I hope I have shown, even when we try to cut our way through the dense thicket of domestic and international law using a massively over-simplified scenario, we run into myriad problems and stand to face substantial difficulties without the exercise of both caution and haste. The best remedy to these problems, quite simply, is to be possessed of the wherewithal to avoid them in the first place – that is best achieved with comprehensive advice as early as possible, in combination with able and attentive claim management.



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