Section
A commercial flight or a common carrier one is expected to exercise the highest degree of care in its undertaking, in contrast to contract carrier operators who are only expected to perform their duties with the care expected from an average person. Thus, to prove that it is not liable, it has to show that indeed it exercised extraordinary diligence.
Is the assumption of risk defense available to an airline to defend against lawsuits brought by injured passengers or the survivors of passengers killed in an airline crash? Why?
No. the reason behind this is anchored on statistical evidence. Research has proven that airline travel is the safest mode of transport. Thus, a passenger cannot have assumed additional risk in using this method of travel.
An airline tariff contains all the terms and conditions that concern the passenger and the flight. It includes the price of the transport and all the requirements for the agreed undertaking.
Can an airline use its tariffs to limit its potential liability to passengers or shippers? If so, describe.
As to shippers, the airline tariff imposes a nominal limit on the damage that can be assumed by the airline company. However, such liability limits excludes the passenger’s life, such as it cannot impose a nominal maximum amount to the damage an injured or dead passenger can claim. On one hand, it can impose a tariff, as a statute of limitation on the period of time that a passenger can sue for injury or its heirs for death.
Can an airline use its tariffs to limit the airline’s liability for passenger injury or death? Why?
An airline cannot use tariffs to limit its liability for passenger injury or death. This Is because of a public policy that life, safety and health should be protected.
Can a mixture of domestic and international passengers be on the same flight?
Yes. A passenger’s flight is determined through its ticket. A passenger for example who will embark and disembark on the same country is a domestic one. If such country is a mere stopover for the airline, the other passengers which will disembark on another point beyond the jurisdictional border of the origin state is considered an international passenger.
How can you tell whether a person is a domestic or an international passenger? Describe.
A person is a domestic or an international passenger as indicated in his ticket details. If he boards and departs the plane on the same territorial border, then he is a domestic one; otherwise, he is an international passenger.
What treaty is now the primary source of law governing the legal relationship between airlines and their international passengers?
It is called the Warsaw Convention. Currently, it is being updated by the Montreal Convention
It is a snowy and bitterly cold winter day in Cleveland when the commuter airline flight from Montreal, Canada, pulls up to the gate. As the international passengers are walking across the ramp from the airliner to the terminal building, one of them slips on an icy patch and suffers an injury. Is the airline liable for this passenger’s injury? Why? Are there any artificial dollar limits on that liability?
Yes. The airline is liable. The law states that airline providers are liable once a passenger sets foot on its terminal. Thus, the passenger at bar walking from the airliner to the terminal building is still within the area of responsibility by the airline. Being an international passenger, it is governed by the Warsaw as modified by the Montreal Conventions. As such, a dollar limit of $75,000 has been imposed for injury or death.
If in the previous question the flight came from Chicago and the passenger who fell was a domestic passenger, under what circumstances and to what extent would the airline be liable for that passenger’s injury?
A domestic passenger and an international passenger are standing side by side in the airline terminal’s baggage claim are waiting for their bags to arrive when a lone terrorist walks up and detonates his suicide vest, killing them both. Is the airline liable for either death? Explain.
Yes. The airline is liable for their death. Having been inside the area of responsibility by the provider, which is the baggage claim, they are to expect a reasonable degree of care, in fact an extraordinary level of care for common carriers as these kind of operators are imbued with public interest. As such, the airline provider should have ensured that it has installed mechanisms to ensure that no terrorists or otherwise could have penetrated the area.
What effects does the Montreal Convention have on the legal liability of anyone other than the airline (for example, the aircraft’s manufacturer, air traffic controllers, or the airport owner/operator) for the death or injury of an international airline passenger?
It has no effect on the legal liability of other entities. It only covers the liability of the airline provider itself.
Snow Bird Airlines flight 13 provides nonstop service between Anchorage and Phoenix. All passengers aboard today’s flight are ticketed from Anchorage to Phoenix and none has an origin or destination in another country on his or her ticket. A pressurization problem arises en route, and the crew decides to make a precautionary landing in Vancouver, Canada. If this attempted stop in Canada leads to an accident will the Montreal Convention apply? Why?
Yes. Such is deemed an international flight. Even if the ticket lists a domestic or local destination as the disembarking place, its stop in a foreign place makes it an international flight. Thus, when an accident occurs, it is the burden of the airline to prove that it was indeed not negligent.
Aero Cargo flight 13 provides nonstop cargo service between Bogota, Columbia and Miami. Prior to takeoff from Bogota, the crew is unable to start one of the engines on the aging four-engine DC-7C. Advised of the problem, the company’s chief pilot and vice president of operations orders the crew to proceed on schedule with the cargo using the three functioning engines (a procedure known in the company as “attempting an air start”), making it clear that if the pilots do not comply, they will be fired. The pilots attempt the takeoff, but the aircraft is not airborne at the end of the runway, where is crashes and burns. What is the airline’s liability, if any, for the resulting destruction of the cargo if both the United States and Columbia have ratified the Montreal Convention?
The Montreal Convention applies to the airline. IN this case, the occurrence of an accident is deemed prima facie proof that the airline was negligent. It has thus the burden of proof to show that it exercised extraordinary diligence or level of care.
What effects has ratification of the Montreal Convention had on the volume of litigation of claims for injury to international airline passengers?
It has lessened the volume of litigation. Having placed legal limits on the nominal amount of damages that can be claimed for life and injury, it has discouraged baseless suing.
Why did the United States not experience an explosion in civil litigation arising out of the deaths of thousands of people from the terrorist attack using hijacked airlines on 9/11/01?
It was because a $10 billion fund was created to immediately compensate heirs of passengers who were killed at that time. The condition however was that they waive their right to litigate.
What is an exculpatory contract?
It is the contract by which the passenger agrees not to sue the provider or airline operator should any injury arise.
Which affords you better protection from liability losses: an exculpatory contract or adequate liability insurance?
An adequate liability insurance gives better protection from liability losses as compared to exculpatory contracts. Exculpatory contracts are sometimes deemed void, as in the state of New York where it was considered to be against public policy.
You manage an air charter company operating under FAR Part 135. The premium for the liability portion of your aircraft insurance is one of the business’s major expenses. Can the company drop that insurance and protect itself by having passengers sign an exculpatory contract instead? Why?
No. Some states for one limit the application of exculpatory contracts. To completely be free of any liability, the airline company must prove that indeed, it was not at all negligent, nor was it wantonly careless in the performance of its duties.
Are there any states in which exculpatory contracts are void and unenforceable as a matter of law? If so, where?
Yes. In New York, an exculpatory contract is void by reason of public policy.
Can an enforceable exculpatory contract be created by “fine print” on the back of an admission ticket to an air show if the ticket is neither read nor signed by the spectator?
Yes, some courts do enforce such contracts. However, it would be more legally prudent to ensure that such exculpatory contracts have been read and understood by the passenger concerned.
You are starting a commercial operation offering suborbital space flights. You find that you cannot buy liability insurance for this operation, at any price. What, if anything, can you do to manage the risk of liability for injury to your wealthy but adventuresome passengers?
I can ask them to sign exculpatory contracts which have been customized. Being uninsurable, at the least, I can assure them that the contract was fully disclosed to them from the beginning.
You are operating a commercial skydiving school. Before jumping, each parachutist is required to sign an exculpatory contract drafted by the school’s lawyer. Assume the contract to be legally valid in your state. A jumper experiences a main parachute malfunction and fails to follow the proper sequence of emergency procedures to deploy her reserve parachute, so that it becomes entangled with the malfunctioned main chute. Plummeting to earth at a high rate of speed, the jumper lands on a resident who is mowing his lawn, killing them both.
Will the exculpatory contract protect the skydiving school from a lawsuit by the jumper’s spouse claiming that the school negligently trained and supervised the jumper? Explain.
No. The contract cannot excuse the school since it has been apparent that it was negligent in its duty of ensuring that the equipment was in good condition. Contrary to its name, an exculpatory contract can only insure against accidents which have not been caused by deliberate or gross negligence by the provider in a duty that has been expected of him. Such duty includes primarily the assurance that the materials are not defective.
Will the exculpatory contract protect the school against a lawsuit by the spouse of the deceased resident, claiming that the school was negligent in training and supervising the parachutist? Why?
No. The resident’s heir, which in this case is the spouse cannot have been deemed a party to the contract. Thus, the exculpatory contract cannot apply to her or him.
You are operating a commercial civilian air combat maneuvering school. Because you have found the cost of aircraft liability insurance for these operations prohibitive, you are having each customer of your $500 “fighter pilot for a day” program sign an exculpatory contract. A sharp, mature, and robust local high school football star has received a gift certificate for your course as a seventeenth-birthday present from his parents.
If he signs your exculpatory contract, will that protect you and your business from a lawsuit in the event that he is injured?
No. A minor does not have the capacity to contract. Thus, the contract is deemed void ab initio.
Are there other measures you can take to strengthen the legal effect of his exculpatory contract?
The parents should be the one to sign in the minor’s behalf. The contract must be customized and the assumed risks have to be detailed. In that case, the parents are fully informed of the risks that they will undertake.
What will you do, and why?
I will specifically ask the parent to sign in this case, since should the minor sign, the contract cannot be deemed to have been created.
