International Air Law
Air transport is currently considered the fastest and safest means of transport globally, Passengers want to feel secure when flying from one place to another and expect the airline to be responsible in the event where they experience any form of injury while under the airline’s care. However, the application of treaties and agreements in determining the liability of airlines in instances of accidents has triggered debates as to what extent the airlines are liable for the damages experienced while the plaintiff is onboard. A particular question arises regarding the extent of injuries that an airline can be responsible for, as occurred in Floyd vs. Eastern Airlines. In this case, the US court of Appeal ruled that, under the Article 17 of the Montreal Convention, the defendant was not liable for the psychological and mental injuries that the plaintiff suffered. This raises a question as to the extent of injuries that the provisions of the two Conventions cover and whether the judgment of the US Supreme Court to deny damages to the plaintiffs was justified. This paper provides an analysis of the Montreal and Warsaw Conventions and how the provisions have impacted the liability of the airline industry towards passengers.
The facts of the case between Floyd Rose Marie and the Eastern Airlines Inc. are based on the events that unfolded on 5th May 1983. On the morning of this particular day, Eastern Airlines flight number 855 left Miami International Airport for its destination, the city of Nassau in The Bahamas. A few minutes after taking off, one of the plane’s engines failed after losing oil pressure, and the aircraft’s crew decided to shut it down and turn the plane back to Miami International Airport. However, shortly after turning around the other two engines failed and the loss of power prompted the plane to start a rapid descent. The crew announced to the passengers that they would ditch the plane into the Atlantic Ocean. However, after making the announcement, they managed to restart the engine that had initially failed enabling them to land safely at Miami International Airport without any incidences or casualties.
After the ordeal, a group of passengers led by Ms. Floyd Rose Marie decided to sue the airline for mental distress and emotional damage caused by the announcement that they would be ditched into the Atlantic Ocean. They based their arguments on the resolutions of the Warsaw Convention of 1929, which stated that airlines would compensate their passengers for any damages or injuries encountered during the course of their travel. The airline argued that according to the agreements of the Convention, the idea of ditching the plane into the Atlantic Ocean and the failing of the engine amounted to an accident. It stated that the preparations and the announcement only resulted from the fact that the engines failed something the crew had not control of.
It further stated that the Montreal Convention allowed compensation for passengers only in the event of bodily harm and did not cover for mental distress or emotional injuries alone. However the plaintiffs argued that the failure of the engines was a result of the airline’s ill preparations. The case was heard in the district court which decided that the airline was not liable according to the Warsaw Convention because there was no bodily harm incurred by the passengers and therefore Article 17 of the Warsaw Convention did not apply. The case proceeded to the US Court of Appeal which reversed the previous ruling, stating that the language in the Warsaw Convention covered emotional damages. The airline Appealed and the case was heard and determined by the US Supreme Court.
This case is basically an interpretation of the Warsaw Convention, and particularly Article 17 which states that airlines are responsible for their passengers and will compensate them in the event of damages or injuries. However, the central question that the case seeks to answer is whether the airlines are liable for mental distress or emotional damage suffered by the passengers in the course of their travel, even if the physical injuries do not accompany the psychological pain.
The US Supreme Court reversed the decision by the Court of Appeal arguing that the court interprets treaties through in-depth investigation into the text in which the agreements are made as well, as the context in which it is given. In this case, it sought guidance from the French because the text of Article 17 of the Warsaw Convention was written in French. It stated that, unlike private agreements, treaties are written in a rather liberal manner and to understand them, one has to look into other things such as the context and the environment in which the treaty was made. During the ratification of the Convention in 1934, the Us Senate translated the French text to mean that the airlines will be liable for bodily harm or deaths in the process of their engagement with the passengers. The liability of the carriers therefore holds when there is bodily harm that occurs in the aircrafts. The Supreme Court pointed out that the plaintiffs did not suffer any bodily harm while flying Eastern Airlines. Therefore, it narrowed the case to determine whether the interpretation of the term “lesion corporelle” applied when the passengers suffered only mental distress with no manifestation of physical injury.
The Supreme Court looked into cases decided in the French legal system in context of “lesion corporelle” and found that prior to the enactment of the Warsaw Convention in 1929; no case had contained this text. Similarly, after the ratification it was not in use until years later when it was used in relation to automobile accidents. A review into its usage revealed that the phrase was never used to refer to mental injuries but rather was aligned more too physical harm. A look into the French treaties also did not reveal that the phrase had been used to refer to mental injuries despite there being a few materials by scholars which supported this notion. The Court discovered that the scholars who supported it borrowed from the fact that France permitted compensation for mental distress. However, this was not the case in the Warsaw Convention.
The US Supreme Court therefore did not find any weight in the ruling by the Court of Appeal, which had based its decision on the argument that “lesion corporelle” had a broader meaning and covered even mental injuries. The fact that there were no cases that strongly supported this notion led to the reversing of the ruling and the Supreme Court held that Article 17 of the Warsaw Convention did not cover mental or emotional distress.
The Warsaw and Montreal Convention
The aviation industry has been in existence for a long time. It has also been accepted as the fastest and safest means of transport since its inception, thus creating a huge demand for air travelers. This rising demand has also increased legal concerns for airlines, particularly with regards to solving conflicts of interest with the various stakeholders involved in the industry’s operations. In order to promote a consistent operating procedures globally, several attempts have been made to draft rules and regulations for guiding the operations of the global aviation industry. As such, the first successful Convention, the Warsaw Convention was established in 1929, in which several guidelines were drafted. This was later amended in 1999 after the Montreal Convention was successfully held. This new Convention has played a vital role in harmonizing the operations of the aviation industry globally, as well as resolving critical issues affecting the industry. However, Article 17, which defines the liability of airlines, has raised controversies, especially relating to the scope of the injuries covered under this section. Despite several cases involving the liability of the airlines in regards to injuries, the extent of the injuries covered remains questionable.
The core purpose of the Warsaw Treaty was to protect the airline industry from extreme liabilities because, initially, airlines were solely liable for the full assets and claims of the passengers’ injuries or death, as well as loss of luggage. A single liability case could render an airline bankrupt because the extent to which the company was to be held liable was not defined. As a result the Warsaw Treaty was enacted to amongst other reasons, limit the extent of an airline’s liability, thus promoting growth of the aviation industry. The treaty had forty one articles, arranged in five chapters, all of which involved the operations of the airlines and the extent to which the airline is liable for the damages. In particular, article 17, which has been widely applied in cases involving damages, states that the airline is only liable to physical injuries or death occurring after an accident while the plaintiff was on board the aircraft. Other articles outline the extent of the damages to be recovered, as well as the process for recovering punitive damages.
However, due to the ongoing changes in the economy and the aviation sector, there was a need to amend the provisions of the initial treaty, and, thus, the Montreal Convention was held in France, where several clauses were amended to relate with the current aviation operations. This was in addition to several concerns that members of the treaty had raised regarding the applicability of the articles, as well as the contradictions that arose between the articles and local constitutions. In particular, the provisions of Chapter III on the airlines liability were unclear and, thus, several changes had to be made. Among the changes were the increment of the damages recovered after the airline is confirmed liable was increased from USD 8500 to USD 75,000, as well as the change of Article 17 to ‘bodily damages’ to specify the type of damages recoverable under this article.
This issue was addressed after several countries, including the US, who accused the first Convention of drafting the treaty in favour of the airlines and limiting the extent to which the plaintiff could recover for damages. In particular, the amount provided by article unjustly favoured the airlines regardless of the damage incurred and thus, the amendment was to increase the minimum damages to be recovered, after which the maximum compensation should be based on the extent of the injury.
The provisions of the airlines’ liability are contained in in Chapter 3 of the Warsaw Conventions, consisting of Articles 17-30. The articles are used to build a defense against the airlines in the event that a tort case demanding compensation is presented to the court. The verdict to recover must meet the provisions of article 17, whereby three essential factors must be considered. An accident must have taken place, which subsequently, caused death or bodily injury, and the victim must have been on board, embarking or disembarking when the accident occurred. An extension of the injury that fulfills the article covers the conditions above but if the plaintiff cannot prove a link between the damage, such as post-traumatic stress, to the bodily injury sustained during the accident, then the claim is null.
According to the plaintiffs, in the Floyd case, psychological injuries or mental damages resulted from the trauma the passengers underwent after the plane almost crashed due to engine failure. In the plaintiff’s view, the passengers could have died from that accident because, had it not been for the recovery of one engine enabling the pilot to land safely at the airport, the accident could have been fatal. On their side, the Supreme Court deviated from the decision made by the court of Appeal by basing the case on the provisions of article 17. In this case, the plaintiff filed for mental damages incurred as a result of the accident which, according to the plaintiffs could have led to death. However, according to the ruling judges, as the provisions of article 17 states, the trauma has to be in the wake of a physical injury incurred during the accident and, as per the court ruling, the psychological damages were not in any way related to physical harm, thus exempting Eastern Airlines from any liability in this case.
Based on the ruling of Eastern Airlines v. Floyd, it is evident that the court relied on a shallow interpretation of the French phrase ‘lesion corporelle’ contained in article 17 of the Montreal Convention. This strategy overlooked the deeper meaning of the term because, despite reviewing the historical applicability of the phrase in French jurisprudence, little information on its use was found. In addition, the reliance of the French phrase ignored the history behind the article, in addition to ignoring the fact that the Convention represented people from different regions, and, thus, they may have failed to elaborate what they meant by the term ‘bodily injury’, which could include psychological damages resulting from the trauma caused by the accident.
This conclusion was reached after a careful analysis of the phrase lesion corporelle, translating it using a bilingual dictionary, in addition to reviewing the history of French law to determine the applicability of the phrase. According to the ruling judge, the findings on the phrase were ‘entirely’ linked to physical injuries and no pure mental damages were recovered under the phrase. Thus, unless the mental damages were accompanied by a physical injury the airline was not liable for the damages.
However several flaws can be identified in this ruling. First, the direct translation of the phrase limits the court to seek a deeper meaning of the phrase. The translation of bilingual treaties has created different meaning depending on the depth of the translation. For instance, the same Article 17 was translated by some countries to extend the compensation for mental injuries sustained as a result of an accident. This similar translation has even been applied in cases involving accidents and liabilities in the aviation industry with some cases granting compensation for psychological damages resulting from airline accidents, as long as the plaintiff is able to prove that the damage was a consequence of a crash. This factor indicates that in resolving the Floyd case, perhaps looking at the deeper meaning of the phrase could have brought a different interpretation of the case.
Application of the articles in Chapter 5 of the Montreal Convention by the federal and supreme courts has successfully solved liability related cases, with the verdicts raising controversial reactions on the applicability of the treaty in recovering injuries, especially those involving purely psychological damages. Floyd vs. Eastern Airlines is one of the many cases to which article 17 of the Warsaw Convention has been applied to determine the liability of the airline in compensating for damages incurred after an accident.
The applicability of the Montreal Convention in resolving Floyd vs. Eastern Airlines can be better understood by reviewing the central requirements that must occur in case of an accident. According to the provisions of article 17 of the Montreal Convention, one of three essential elements must be present in order to determine the liability of the airline concerning the claims; physical injury, death, or physical manifestation of injury. These act as prerequisites to the recovery of damages and, unless a claim is linked to the presence of these, the claim is invalid. The extent of physical injury is derived from the translation of the French phrase lesion corporelle, which is translated to ‘bodily injuries’ according to a bilingual dictionary. Thus, the verdict of the US Supreme Court was guided by this prerequisite requirement in that, the mental damages were to be recovered, only to the extent to which the claim was linked to a sustained physical injury from the accident.
The criteria used in Floyd had been used in prior cases, with Rosman v. Transworld Airlines Inc. being the most prominent. In both case, the liability of the airline was limited to the extent that the subsequent psychological damage was a result of a bodily injury sustained during the accident. This meant that the defendant was liable for any mental damage caused by the bodily injury sustained during the accident but not any psychic disorder resulting from the behavioural manifestation of the trauma. The definition of the scope of damages that an airline is liable for, thus brings up a controversial issue on what types of injuries are covered under article 17 and how the plaintiff can prove that the psychological damages are attributed to the accident.
The extent of the article in resolving cases has raised controversial concerns regarding the elements that must be considered, especially bearing in mind that differing verdicts have been made by the courts at different levels while quoting this article. First, understanding the term ‘bodily injury’ remains questionable. This can be attributed to the lack of understanding of all of the proceedings and historical facts that took place during the place during the Convention to provide a guideline in understanding the real meaning of lesion corporelle. According to a recent definition in the field of medicine, a body is generally viewed to consist of physical and psychological components and if such a definition is applied in interpreting the meaning of the French phrase, then it could be possible that the ‘bodily injuries’ described in the article could also mean any mental damages incurred are recoverable. However, the countries under English jurisprudence have relied on a shallow translation of the phrase to determine its meaning, while ignoring the historic facts behind it.
Justifying the existence of the three elements that must be present for the case under article 17 of the Warsaw Convention is similarly a controversial issue that has affected rulings in aviation related cases, decades after the promulgation of the treaty. Similar to proving that an injury was a result of an accident that took place while the passenger was ‘aboard the plane or was in the course of embarking or disembarking’, Courts have also found it difficult to define what constitutes an accident. While in the Floyd case the accident was clearly proven in that the defendant claimed liability and admitted that there had been an unanticipated incident, establishing the scope of an event can be controversial and can limit the applicability of the articles in the Montreal Convention.
A similar case that involved deterring article 17 of the Warsaw Convention is the Air France v. Saks and Thibodeau v. Air Canada to limit the scope of the ‘accident’ that could deter the passenger as a victim. In this case, the plaintiff filed for damages after suffering permanent deafness resulting from negligent maintenance of the engines’ pressurized system. However, the case was ruled that the plaintiff could not recover for damages because she was not purely a victim of the accident. To determine this case, the Supreme Court argued that understanding of the term ‘accident’ must be obtained by first understanding the interpretation of the provisions of the Convention. According to the interpretation, the cause of action cannot be deemed an accident and, in such a case, the passenger was not a victim of an accident. According to the ruling, an ‘accident’ is an unintentional and unanticipated incident that could result to death, bodily injury or sustained injuries to the victim, and in this case, the noise was not an accident thus deterring the cause of action by the plaintiff.
The application of Article 17 in resolving airlines liabilities cases is a complex process, especially given the differing interpretations of the clause. This is particularly evident in Floyd, where different verdicts were read at different levels of the court with the Court of Appeal allowing compensation for the mental damages while the Supreme Court reversed this decision after a review of the provisions of the phrase ‘lesion corporelle’ contained in the article. The differing interpretations of the phrase ‘lesion corporelle’ have been applied differently in determining cases involving mental damages resulting from an incident that took place while the passenger was on board the airplane.
A direct interpretation of lesion corporelle to indicate ‘bodily injuries’ is a clear indication that damages can only be allowed in cases where the plaintiff suffered physical injuries or death, or in cases where mental injuries were a result of physical injury. However, as in Floyd, the extent to which mental damages are recoverable relies on the interpretation of the phrase. As the judges argued in the Floyd case, bodily damages, as translated from lesion corporelle, involves only the sustained injuries from the accident, whereas pure mental damages, including post traumatic disorder, cannot be accounted for.
Conclusion
The Aviation industry, similar to most industries is constantly evolving with issues emerging in the present that are entirely different from the issues present in 1920s when the Warsaw Convention was promulgated. Despite the changing trends in the aviation industry, the amendments that followed the Convention resulted from disagreements and concerns on the limitations of the airlines liability. Since then, few changes have been made to match the initial Convention with the ongoing changes in the market. The rules of the Convention were created with the aim of creating a uniformity of operations in the global aviation industry, while defining the liabilities of airlines in cases of accidents and acts of negligence.
However, changes in the current aviation industry have made the provisions of the Warsaw Convention questionable. A possible reason for this is that, perhaps the drafters failed to foresee the changes and demands that might affect the articles, thus making the interpretation of some articles difficult and controversial. For instance, failure to interpret what the phrase ‘lesion corporelle’ meant has resulted in controversial rulings whereby some judges as in Floyd, have relied on a direct translation of the term to mean physical bodily injuries while excluding purely mental injuries, while others, as in the case of Rosman v. Trans World Airlines Inc., argue that mental trauma resulting from an accident is retrievable.
Deciding on a case similar to Floyd by applying the contents of Article 17 of the Warsaw Convention is complicated, especially where mental damages are involved. The case for instance indicated that the plaintiff had suffered few bruises, but the psychological trauma was a direct result of the entire incident. However complicated the situation may have been, it is evident that the provisions of Article 17 of the Warsaw Convention limited the powers of the Supreme Court judges to expand the territory of bodily injuries to include mental damages. Thus, the decision of the Supreme Court was valid as long as they followed the provisions of article in addition to having no prior cases in the French jurisprudence that defined a wider meaning of lesion corporelle. However, it is recommended that the provisions of the Montreal Convention be amended to provide a wider legal meaning on such articles that have brought these questionable judgments.
Bibliography
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Convention for the Unification of Certain Rules for International Carriage by Air - Montreal, 28 May 1999.
Warsaw Convention for the Unification of Certain Rules Relating to International Transportation by Air, opened for signature( Oct. 12, 1929,) 49 Stat. 3000, 137L.N.T.S. 11
