An Introduction to the Law of International Carriage by Air Part by gregoria

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									      An Introduction to the Law of International Carriage by Air – Part II
             Airline Liability Under the Montreal Convention 1999

Article 17 of the Montreal Convention 1999 provides for airline liability for passenger
death and injury and for damage to baggage.

Death or Bodily Injury

An airline is liable for death or bodily injuries that are caused by an accident which
takes place:

   1. on board the aircraft; or
   2. in the course of any of the operations of embarking or disembarking.

It is important to note that an airline is only liable if the death or injury is caused by
an “accident”. This point is critical because a line or cases has established that an
airline will not be responsible if the injury or death arises as a consequence of the
normal operation of the aircraft. There must be something unusual or unexpected. It
is not enough that a passenger has suffered a particularly adverse reaction to the
operation of an aircraft – for example an injury arising from turbulence.

Interestingly, deep vein thrombosis (DVT) has been held not to result from an
“accident”, within the terms of the Article 17 of the Montreal Convention. In this
case, it may not matter that the airline negligently failed to warn passengers of the
risk.

Assuming that there has been an “accident”, a passenger claiming against an airline
must go on to establish, either that the accident occurred whilst on board the aircraft,
or in the course of embarking or disembarking. The meaning of “on board the
aircraft” is clear – but what is covered by the words “any of the operations of
embarking or disembarking”?

A number of authorities have established that embarkation and disembarkation are
more extensive in scope than simply the time period between the boarding gate and
the aircraft and vice versa. Embarkation and disembarkation may in fact include
certain pre-boarding and post-disembarkation activities – for example, checking-in,
security control and immigration and customs procedures.

However, it should be borne in mind that airlines will seek to pass responsibility to
the airport operator wherever possible. Often, an airport operator will be the most
obvious and easiest target for action in a case where an accident occurs within the
airport facilities – whether landside or airside. Moreover, passengers will often not
consider an action against an airline, in circumstances where an airport operator can
be held liable, pursuant to domestic occupiers’ liability legislation.

In the following part of this article, the provisions of the Montreal Convention with
regard to baggage loss and damage will be considered. For more information please
contact – James N Harvey (250) 869 1245 or harvey@pushormitchell.com

								
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