Turbulence Ahead for the Airlines Under the Montreal Convention? 

March 23, 2020
The current COVID-19 pandemic will no doubt be an inspiration to the plaintiffs’ bar to seek redress from any and all possible targets arguably responsible for the contracting of the disease, including on behalf of someone who has recently traveled on an international flight. This alert analyzes the basis for potential legal exposure for international air carriers. Of course, our understanding of the virus and how it is transmitted remains very preliminary; thus the views set forth may evolve with our understanding of this disease. 
Liability for injury or death of a passenger on an international flight is, for most countries, governed by the Montreal Convention1 (the Convention), which the United States ratified in 2004. In addition to covering numerous aspects of air travel, the Convention governs the liability of international air carriers for the death or injury of passengers during the period of embarking, air travel, and disembarking.2 The Convention essentially requires proof that (a) the passenger was in the process of embarking, on board, or disembarking when injured, or when he or she expired (b) the injury or death complained of was the result of an “accident” and (c) the accident was a link in the chain of causation causing the injury or death.3 Under the Convention, if these elements are proved, the airline will be strictly liable (without proof of fault) up to a maximum of about 129,000 Special Drawing Rights (or about $160,000) as of December 28, 2019.4 The limitation cap can be broken if the airline is unable to prove that it was not negligent in connection with the accident causing the injury.5 This is obviously a very difficult burden (proving a negative); thus it is fairly rare to see cases where the limitation is applied if the damages exceed the limitation amount. One significant aspect of the Convention is that emotional distress damages will not be recoverable in the absence of physical injury, although that rule has been somewhat watered down in a recent Sixth Circuit decision.6 In addition, the airline can seek exoneration of or a reduction in liability if it can prove that the passenger’s injury or death was caused or contributed to by the passenger him or herself.7
The critical question of what constitutes an accident was finally settled in the seminal case of Air France v. Saks, 470 U.S. 392 (1985). In that case a passenger lost her hearing in one ear allegedly as a result of the pressurization of the aircraft. She sued for damages. It was shown that there had been no malfunction in the pressurization and that the passenger’s loss of hearing was an unusual reaction to a normal condition. The U.S. Supreme Court found that the incident did not constitute an accident under the Convention, holding in the oft-cited phrase that “liability arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger.” In Saks, the passenger had an unusual reaction to a normal condition on board the aircraft, ergo, no accident. Examples of accidents on board aircraft include luggage falling out of the overhead bin and injuring a passenger, the spilling of a hot liquid on a passenger causing burns, and, in one notorious case, being groped by a sexual predator in the middle of the night.8
So, the question becomes: is the presence of an infected individual on board the aircraft an abnormal or unusual event, external to the passenger making the claim? Unfortunately, there is no clear answer at present, although an argument could be made that an infected and contagious passenger was “an unusual or abnormal” occurrence. The far more complex question is one of proof that the condition, if established, was a proximate cause of the injury (or death). How would one know the complaining passenger had not contracted the virus before boarding, especially assuming an approximately 14-day incubation period? Further, the complaining passenger would have to prove that he or she was actually exposed to the virus while on board. How far away was the complaining passenger from the infected individual? How much contact occurred, if any? These would appear to be difficult, if not insurmountable, hurdles to recovery. Another issue could involve contributory negligence. Did the complaining passenger know of the risks of contracting the virus, but decided to fly anyway? Of course, in a case where a passenger actually develops symptoms while on board, there could be a basis for liability if the crew fails to take appropriate measures to isolate the sick passenger and disinfect the areas that may carry the virus. That could well be an easier case. Moreover, as discussed above, claims based only on emotional distress for having been exposed to the virus, in the absence of actual physical injury, would probably be unavailing under the Convention, despite the Sixth Circuit’s Doe decision.9
These legal issues are as novel as the virus itself and it may take years before they are resolved. Hopefully the pandemic itself will have petered out much sooner.
1 Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 28 May, 1999).
2 Art. 17.1 provides: “The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”
3 Olympic Airways v. Husain, 540 U.S. 644 (2004).
4 https://www.icao.int/secretariat/legal/Pages/2019_Revised_Limits_of_Liability_Under_the_Montreal_Convention_1999.aspx.
5 Convention, Art. 21.
6 Doe v. Ethiad Airways, 870 F.3d 406 (6th Cir. 2017), reh'g en banc denied (6th Cir. Oct. 6, 2017).
7 Convention, Art. 20.
8 Wallace v. Korean Air, 214 F.3d 293 (2d Cir. 2000).
9 There have been several recent lawsuits filed by passengers against Princess Lines for pure emotional distress as a result of the quarantine imposed on the Grand Princess cruise ship.