BPC Aviation Personal Injury Section
The liability of an airline carrier for the death or injury of an Australian passenger on an airline flight is governed by an international convention known as the “Montreal Convention” 1999. Passengers of other nationalities may be covered by another convention, known Warsaw Convention 1929. It is each passenger’s “place of departure” and final “place of destination” which determines which treaty applies.
For example if a passenger was flying from Amsterdam in Holland to Sydney, Australia via Kuala Lumpur in Malaysia then because each of the Netherlands, Malaysia and Australia are all parties to the Montreal Convention, that convention applies for anyone suffering death or injury.
Under the Montreal Convention, liability arises for the aircraft carrier in the circumstances set out in Article 17:
“The carrier is liable for damage sustained in the 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 in any of the operations of embarking or disembarking”.
The important point to note here is the requirement that the deaths or injury was caused by an “accident”. That term is not defined within the convention itself, but the definition has been considered by courts around the world. The authoritative definition of the term is now widely accepted to have been pronounced by the Supreme Court of the United States in the case of Air France v Saks 470US392  in which O’Conner J. said that liability arises when; “a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger”.
Although his Honour was referring to the Warsaw Convention, the same text appears in the Montreal Convention, and it is generally considered to have the same meaning.
Extent of liability
Under the Warsaw Convention liability was capped. This is not the case under the Montreal Convention, where liability is potentially unlimited. There are some practical controls on this, however as Article 21 of the Montreal Convention splits liability of the carrier into two “tiers” and slightly different rules apply in each tier.
In the first tier, which applies for all compensation amounting to less than 113-100 Special Drawing Rights (which is about Australian $183,500.00) the carrier cannot exclude or limit its liability. This means that the passenger need not prove that the carrier was negligent (but, of course, must show that requirements of Article 17 are met, including the event was “an accident”). It also means the carrier is liable even if it was not negligent.
In the second tier, for all damages higher then 113-100 SDRs the carrier is liable unless it can show it was not negligent. This reverses the traditional onus of proof normally it is the Plaintiff (or person making a claim) that must show the Defendant (the person the claim is made against) was negligent.
Solely due to the negligence or wrongful act of a third party?
In the second tier, a carrier may also escape liability if it can show the “accident” was solely due to the negligence or wrongful act or emission of a third party.
Where can claims be made?
Claims against carriers under the Montreal Convention can be made in anyone of “5 forums” being:
- The domicile of the carrier i.e. Malaysia.
- The carrier’s principal place of business; i.e. Malaysia.
- Where the carrier has a place of business through which the contract of carriage was made.
- The passenger’s place of destination.
- The passenger’s principal place of residence, but only if the carrier operates services to that jurisdiction and the carrier conducts business from leased or owned premises there.
The BPC Aviation team has access to an international network of aviation consultants and aviation lawyers.
Courtenay Poulden – Partner
David Ford – Special Counsel