Article 17 renders a carrier liable for personal injury suffered by an internationally traveling passenger if sustained on board the aircraft or in the course of embarkation or debarkation. Under Article 22(1), liability is limited to 125,000 francs ($75,000) unless a higher limit is otherwise agreed to between the passenger and carrier.
Article 18 renders a carrier liable for damage or loss of checked baggage or goods. Article 22(2) limits liability for loss of checked goods to 250 francs per kilogram ($150,000), unless a special declaration of value is made at delivery and a supplementary sum is paid. Liability for carry on is limited to 5,000 francs ($3,000) per passenger.
Article 25 lifts the liability limitations if damage is caused by wilful misconduct.
Article 29 sets the statute of limitations at two years from the date of arrival at the destination, the date on which the aircraft ought to have arrived, or from the date the transportation stopped.
On October 4, 1996, the Department of Transportation tentatively approved a carrier agreement waiving the Warsaw convention's liability for passengers and their families in the case of death or injury on international flights.
The new agreement among U.S. and foreign airlines provides that passengers could recover the full amount of their damages without any limit, unless the carrier could prove that it was not negligent.
The proposed agreement would make the waiver of the Warsaw liability limit mandatory for all carriers serving the U.S. and any tickets sold for transportation to or from the U.S.
The proposal also would require that damages be determined according to the law of the plaintiff's residence regardless of where the lawsuit was filed and would require U.S. carriers to agree to submit to the jurisdiction of the courts of their passenger's residence.
The Department of Transportation is expected to issue a final ruling on the agreement by the end of 1996.
In Alvarez v. Servicios Aeros de Honduras, S.S., No. H-93-3060, 24 Av. Cas. (CCH) 17,888 (S.D. Tex., 1994), the court held that the Warsaw Convention creates an exclusive cause of action preempting state law claims for personal injury if it is applicable at all. Thus, the state law claims were preempted and the case could only be tried in federal court.
In Luna v. Compania Panamena de Aviacion, S.A., 851 F. Supp. 826 (S.D. Tex. 1994), the court held that federal court jurisdiction under the Warsaw Convention is exclusive. The court then dismissed the action for lack of jurisdiction, finding that defendant did not solicit or transact business in the U.S., the decedent's ticket was issued on the U.S. carrier's ticket stock and that while defendant had a maintenance agreement with a U.S. business, only two planes had been serviced in the U.S.
In Patelczik v. Clarkston Travel Bureau, Inc. and Northwest Airlines, Inc., Bi, 93-CV-74469-DT (E.D. Mich. Dec. 20, 1993) a plaintiff suffered a slip and fall injury in the terminal while waiting to board a Northwest shuttle. The District court remanded the action to state court, finding that the passenger's injury did not occur while on board or in the process of embarking or disembarking the aircraft. It set forth a three part test for determining whether a passenger was embarking or disembarking:
(I) The activity in which the passenger was engaged;
(II) who controlled the activity; and
(III) the location of the activity.
Because the plaintiff was in a common area not reserved for international flights, and had not received a boarding pass, she did not meet this test.
In Union Iberoamericana v. American Airlines, Inc., no. 93-2510-Civ (S.D. FLA. 1994), the District Court reached a somewhat different result, holding that while the Warsaw Convention imposed limited liability, it did not preclude plaintiffs from pursuing state law claims, and remanded the action to state court.
Third party claims bound by the statute
In Royal Insurance Co. v. Emery Air Freight Corp., 834 F. Supp. 633 (S.D.N.Y. 1993), the Court held that the two year statute of limitations would not be tolled in third party actions. Thus, a third-party claim would have to be filed by a defendant within two years of the triggering dates set forth in the Convention.
(I) In Curley v. American Airlines, Inc., 846 F. Supp. 280 (S.D.N.Y. 1994) a plaintiff's action for emotional distress caused by his being subjected to an embarrassing search after the captain of the plane suspected him of smoking marijuana in the plane's bathroom was not related to an "accident" covered by the Warsaw Convention.
(II) In Schwartz v. Lufthansa German Airlines, No. CV 91-2952 (C.D. Cal. 1993), a plaintiff's slip and fall in an aircraft lavatory due to her intoxication was not the result of an "accident" as defined in the Warsaw Convention. The injury must be caused by an unexpected or unusual event that is external to the passenger for liability to arise.
In Pasinato v. American Airlines, Inc., No. 93-C 1510 (N.D. Ill. 1994), the Court held that a plaintiff's injuries, sustained when struck by a piece of luggage that fell after an overhead bin was opened by a flight attendant, were subject to the Convention's liability limitation provision, and not within the exception for wilful misconduct.
(I) In Zicherman v. Korean Air Lines, 116 S.Ct. 629 (1996), the Supreme Court held that under Article 17 of Warsaw Convention, compensatory damages are determined by the domestic law of the forum. Thus, crash victims' relatives who sued in U.S. courts could not recover loss-of-society damages for a death that occurred on the high seas.
(II) Addressing the question of what U.S. law to apply, the Court rejected a lower appellate court's reasoning that general maritime law should govern Convention cases in the interest of uniformity. Rather, the court said the death here falls within the terms of the Death on the High Seas Act (DOHSA), which applies to airplane crashes. Since DOHSA provides for recovery of pecuniary loss only, plaintiffs could not recover for loss-of-society damages.
In Beaudet v. British Airways, PLC, 853 F. Supp. 1062 (N.D. Ill. 1994), a plaintiff's injuries sustained while waiting in an airport lounge were held not subject to the Convention, based on the following factors:
(I) The plaintiff was on a floor of the terminal building different from the boarding gate;
(II) The plaintiff's activity at the time of the accident was directed toward obtaining reading material, not boarding an airplane; and
(III) The defendant lacked control over plaintiff
In Federal Insurance Co. v. Air Express Int'l, Corp, No. 91 Civ. 4681 (S.D.N.Y. 1994), the court held that, where goods destined for New York's JFK airport from Belgium were lost after being subsequently shipped to a New Jersey warehouse, the liability limitation provisions of the Convention did not apply. This situation did not fall within the exception for "breaks" in otherwise undivided transportation.
In Lathigra v. British Airways PLC, 41 F.3d 535 (9th Cir. 1994), the Court held that the airline's conduct in reconfirming a flight reservation for a flight that had previously been canceled, which resulted in plaintiffs' being stranded for five days, was not an injury occurring during the provision of air carrier services, and thus, did not result from a delay as defined in the Convention.
In Eichler v. Lufthansa German Airlines, No. 91 Civ. 8407 (CSH) (S.D.N.Y. 1994), the court held that the doctrine of comparative negligence per se did not apply in a personal injury action subject to the strict liability provisions of the Convention, although the concept of "comparative causation" did apply.
In Shen v. Japan Airlines, No. 93 Civ. 1501 (LLS) (S.D.N.Y. 1994), aff'd, 43 F. 3d 1459 (2nd Cir. 1994), the court dismissed the case for lack of personal jurisdiction, finding that an action under the Convention could not be brought in New York. The Court rejected plaintiff's argument that because it had purchased the tickets with an American Express card, and that the transaction cleared in New York, New York was the place where the transaction was made.
In Cortes v. Delta Air Lines and Avianca, S.A, 638 S.3d 108 (Fla. Dist Ct. App. 1994), a woman fell after leaving an Avianca terminal counter in Miami. She was en route from Montreal to Columbia at the time. The Court held that there was no jurisdiction over Avianca, since Miami was not Avianca's principal place of business, the place where the contract for transportation was made (it was made in Montreal) nor the destination of the Avianca flight.
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