New life for Montreal Convention litigation?
Once upon a time, liability for passengers’ injuries was a very active area of aviation law. Then, for years, it was very dull. Crack, fine-tuned and highly-paid defence lawyers were left overseeing junior counsel playing whack-a-mole in small claims tribunals. It seemed as if all of the compelling issues had been thrashed out during nearly 80 years of court cases interpreting the world’s oldest private international law treaty, the Warsaw Convention of 1929. Now, the United States Court of Appeals for the Sixth Circuit may have breathed new life into this mainstay for funding school fees and long lunches for generations of lawyers. The Warsaw Convention was replaced, give or take, by the Montreal Convention of 1999. Generally, the change from one to the other was seamless and it was assumed that what was good for Warsaw was good enough for Montreal. Whoever thought that did not count on the Sixth Circuit. As with most personal injury cases, unusual events bring new challenges to older interpretations. Jane and John Doe v Etihad Airways, decided on 30 August 2017, is a case in point. On a flight from Abu Dhabi to Chicago, Jane Doe reached into the seat pocket in front of her and was unexpectedly pricked on her finger by a hypodermic needle which had not been removed when the aircraft was cleaned prior to the flight. She immediately notified the cabin crew, who gave her an antiseptic wipe to clean the wound and a bandage to cover it. Tests for communicable diseases were negative. However, given the latency of detectability of some diseases, Ms Doe remained vigilant, abstaining for over a year from sex with Mr Doe and from sharing food with their child. The Does filed suit under Article 17 of the Montreal Convention, claiming not only bodily injury (the needle prick), but also mental anguish over the possibility of having contracted a communicable disease. Citing the Second Circuit Court of Appeals ruling in the 2004 case Ehrlich v American Airlines, a US District Court granted partial summary judgement to Etihad on the basis that Ms Doe’s mental anguish was not caused by the injury – compensable mental injury must flow from the bodily injury, not merely be associated with the accident. The Does filed an appeal with the Sixth Circuit. At appeal, Etihad’s defence relied on Ehrlich. The problem is that the Ehrlich case was decided under the terms of the Warsaw Convention. Article 17 of the Warsaw Convention is not identical to Article 17 of the Montreal Convention. While the Sixth Circuit acknowledged that Warsaw jurisprudence is persuasive on interpretations of the Montreal Convention, it nevertheless stated that the Montreal Convention is a new treaty that warrants interpretation independent of the Warsaw Convention. ‘Persuasive’ is judge-talk for ‘interesting, but not binding’, so you can usually bet that something remarkable is in the offing when you see it. In a departure from Warsaw jurisprudence and in direct contravention to the holding in Ehrlich, the Sixth Circuit held that mental injuries are recoverable if they are caused either by a compensable bodily injury or by the accident that caused a compensable bodily injury. In reaching its conclusions, the Sixth Circuit determined that some of the language of Article 17 of the Montreal Convention is ambiguous. You think? It was compromise wording built on the back of eighty years of jurisprudence. To resolve the ambiguity, the court turned to the purpose of the Convention, as evidenced in preparatory documents and official statements about its ratification. This is not unusual. Under the Vienna Convention on the Law of Treaties, recourse may be had to supplemental means of interpretation when there is ambiguity. The Second Circuit did the same in its decision in Ehrlich when they considered Article 17 of the Warsaw Convention. However, the Sixth Circuit refused to follow the persuasive authority of the Second Circuit’s Ehrlich case because the purpose of the Montreal Convention is different than the purpose of the Warsaw Convention. In contrasting the purposes of the treaties, the Sixth Circuit stated, “The Warsaw Convention provided limitations of liability to protect fledgling airlines from litigious passengers; the Montreal Convention provides limitations of liability to protect (still litigious) passengers from the not-so-fledgling airlines”. Simply put, airlines no longer need the protections they were afforded in 1929 and the Montreal Convention should be interpreted in light of developments over the past 80 years. Plaintiffs’ attorneys, start your engines! You can almost hear those crack, fine-tuned and highly-paid defence lawyers noting in their deep modulated tones that the remarkable analysis on the purposes of the Montreal Convention is merely obiter dicta. In other words, as remarkable as they may be, the words are not pivotal for the decision in this case and thus are of interest, rather than binding in any later case. Nothing more to see, move along now, they will suavely say. Which is a pity, because this backwater of aviation could do with a shake-up. The bright side is that the words might be relied upon by courts in future decisions. The worst part about the decision, however, is the judges’ obvious ignorance of the nuances of international law. They repeatedly refer to parties to the Montreal and Warsaw Conventions as ‘signatories’ and ‘sister signatories’. Clearly, they do not know the difference between signing and ratifying a treaty. That is also obiter dicta and unlikely to bring into question the otherwise ground-breaking ruling. Nevertheless, come on Sixth Circuit, get it together. The US Supreme Court has never interpreted any of the provisions of Montreal Convention. The holding in the Sixth Circuit case just might give the US Supreme Court its first opportunity. As they pointed out, it is a new treaty and needs new rules. We wait with not-so-bated breathe.Trackback from your site.