Don’t Fly Blind During Air Disasters: Passenger Injury and Response

 Its respected team of trial lawyers consistently develops successful litigation strategies in even the most difficult cases, and it does so while recognizing and honoring the individual needs of each of its clients.

Getting in touch with Donald Nolan, we talk about the air law treaties which protect injured passengers and how courts interpret the conditions for air carrier liability.

To which major air law treaties related to carrier liability for passenger injury or death is your state a party?

The United States is a party to several major air law treaties related to carrier liability for passenger injury or death including the Montreal Convention which succeeded the Warsaw Convention. However, the Montreal Convention prevails over any rules which apply to international carriage by air. It is important to note that the different district and state courts of the United States sometimes have different interpretations of the Montreal / Warsaw Convention.

The Montreal Convention and Warsaw Convention only relate to international travel.

Do the courts in your state interpret the similar provisions of the Montreal Convention and the Warsaw Convention in the same way?

Yes, the Montreal Convention and Warsaw Convention are generally interpreted in the same way. For example, in Illinois where our firm is located, the Appellate Court has discussed this issue in a 2016 case, stating, Article 17 is “identical to its predecessor, the Warsaw Convention, and precedents discussing this article of the Warsaw Convention are generally also applicable to the Montreal Convention.”[1] In some instances, the Montreal Convention replaced and further clarified some protections offered to passengers by the Warsaw Convention.

Do the courts in your state consider the Montreal Convention and Warsaw Convention to provide the sole basis for air carrier liability for passenger injury or death?

No, the Montreal Convention and Warsaw Convention only relate to international travel. However, for international travel, these treaties do provide the sole basis for air carrier liability for passenger injury or death because, as a treaty of the United States, the Montreal Convention is the supreme law of the land. The Convention applies to personal injury actions when the alleged harm occurred on board an international flight or in the process of embarking or disembarking from an international flight. Thus, when a claim falls within the scope of the Montreal Convention for International Carriage by Air, a passenger’s exclusive remedy is through the Convention and all other claims are preempted – even if the terms of the Convention would not allow recovery.

In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?

Under United States law, a “carrier” is defined when a principal makes a contract of carriage governed by the Montreal Convention with a passenger or consignor, by virtue of authority from the contracting carrier.

Each of these factors are weighed in determining whether a passenger was embarking or disembarking at the time of the injury.

How do the courts in your state interpret the conditions for air carrier liability – ‘accident’, ‘bodily injury’, ‘in the course of any of the operations of embarking or disembarking’- for passenger injury or death in article 17(1) of the Montreal Convention and article 17 of the Warsaw Convention?

Each of these terms have been interpreted and defined by US courts. For instance, an “accident” or “occurrence” under the Montreal Convention is defined as any injury in a chain of causes, with proof that some link in the chain was an unusual or unexpected event external to the passenger.

A ‘bodily injury’ has been determined to be established by the ‘but for test’ (the injury would not have occurred but for the accident) or the ‘substantial factor’ test (the accident in question was a substantial factor in bringing about the bodily injury). It is important to note that there are nuances to emotional injuries under the Montreal Convention – namely that a physical, bodily injury must accompany the emotional injury for recovery.

Finally, ‘embarking or disembarking’ is interpreted with a four-factor determination. The factors include (1) the activity of the passengers at the time of the accident; (2) the restrictions, if any, on their movements; (3) the imminence of actual boarding; and (4) the physical proximity of passengers to the gate. Each of these factors are weighed in determining whether a passenger was embarking or disembarking at the time of the injury.

Donald J Nolan

Founder

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As a first generation law firm with more than three decades of experience in aviation accident litigation, Nolan Law Group understands the uniqueness of the issues associated with each case, including jurisdiction, venue, conflicts of law, and proof of damages. Its attorneys are also well-versed in the language, processes and inner workings of federal and international agencies responsible for investigating air disasters and regulating air carriers.

Attorneys at Nolan Law Group have served in many leadership capacities for plaintiff groups in aviation matters including roles as Lead Counsel, Plaintiffs’ Trial Team, Liaison Counsel, Plaintiffs’ Steering Committee, and Plaintiffs’ Executive Committee. This leadership has led to many successful verdicts, settlements, and reported cases on wide-ranging issues in aviation accident litigation.  Nolan Law Group has also been a leader assisting victim groups, including supporting its clients in lobbying for the Aviation Disaster Family Assistance Act of 1996 and support in the founding of the National Air Disaster Alliance. With its experience and results, Nolan Law Group has been an excellent resource for other attorneys and is often sought out by media following high-profile aviation accidents.

Nolan Law Group has successfully represented clients in most major air disasters in recent history. In June 2017 Nolan Law Group secured a $115.75 million jury verdict which resulted in a post-trial settlement arising from a Boeing 747 cargo crash in Afghanistan.  It also recently resolved its cases arising from the accidents involving Asiana Airlines Flight 214, Malaysia Airlines Flight 370, Malaysia Airlines Flight 17, and AirAsia Flight 8501.

In addition to major air carrier litigation, Nolan Law Group’s litigation practice includes other commercial accident cases and accident cases arising from corporate, general aviation, cargo, military, and helicopter operations.

[1] El-Zoobi v. United Airlines, Inc., 2016 IL App (1st) 150813