International Airline Accident Law

Almost everyone in the aviation industry travels on the airlines as a passenger. Suppose you are killed in an airline disaster. Will your family collect millions of dollars? Will it matter if the flight is international? Should it matter if the airplane crashes into the ocean rather than on land? Are the laws governing international airline disasters fair? Are airline accident lawyers necessary?

In this article, I will address these questions, while highlighting major changes in international airline aviation law. In plain language, I will explain controversial U.S. aviation laws that affect the rights of American litigants, with airline disasters such as TWA 800, Swiss Air 111 and Egypt Air 990, as an example.

Every person's case is different. Indeed most federal courts in the United States will not certify an airline crash case for class-action treatment because everyone suffers different damages. My goal is simply to offer an introductory education about some of the issues confronting Americans after major airline disasters occurring during international flights. This article does not constitute legal advice on any case arising out of any crash. I offer no opinion on the cause of the crash or on the ensuing litigation. Any person who has a claim against an airline must seek the advice of his own or her own aviation lawyer who is experienced in airline crash litigation. This article cannot possibly be used to determine a party's rights or legal options. . I make no effort to discuss the rights, options or limitations of persons outside the United States.

Three of the last major international airline disasters, TWA 800, Swiss Air 111 and Egypt Air 990, involved international flights, which crashed in the ocean after departing from JFK Airport in New York City. The survivors (the families who lost loved ones) were among the first plaintiffs to benefit from major changes in international aviation law that have occurred in last few years. Conversely, some survivors faced limitations on recovery of their losses simply because the aircraft crashed in the ocean rather than on land. This article will first explain the major changes in the law that control claims by passengers in all international airline flights. Because many international crashes occur on the High Seas, I will explain the U.S. federal law that applies to crashes on the "high seas" in U.S. courts.

The Warsaw Convention Controls the Rights of International Airline Accident Victims

An international treaty known as the Warsaw Convention controls the legal rights of international travelers to sue the airlines for injuries suffered on an airliner. The Warsaw Convention is 70 years old. The Convention was originally designed to protect the airlines against excess damage liability. Three recent major airline disasters, TWA 800, Swiss Air 111 and Egypt Air 990, involved international flights covered by the Warsaw Convention. This year the United States Supreme Court confirmed that the Warsaw Convention "exclusively" controls a passenger’s right of recovery in U.S. courts for "physical injuries" sustained on international flights.

The Warsaw Convention applies to passengers ticketed on an international itinerary even if the crash occurs on the domestic part of a continuous international trip. For example, let’s assume an American citizen purchases a round-trip ticket in Seattle for a flight to Mexico City with a change of planes in Los Angeles. If a crash occurred during the Washington to California leg, the Warsaw Convention would still apply because that passenger was embarked on an international flight based on his ticketing to Mexico, although other passengers may have only been ticketed for the Seattle to Los Angeles domestic leg.

For almost 70 years, the families of internationally-ticketed passengers killed in airline disasters were doubly traumatized. First, they lost a loved one in what was often a preventable accident. Second, they discovered a harsh economic reality — the maximum amount of money they could collect from the airline was $75,000 U.S. (Read about a major change infra). No matter how tragic the loss or how glaring the negligence, they could receive only $75,000.00. Comparatively, the family of domestic passengers who died from the same crash could expect to collect millions in U.S. Courts. The only way around this liability limitation was to prove that the airline was guilty of "willful misconduct." Many victims and their lawyers struggled in vain to satisfy this extremely difficult legal burden of proof. Only a few were successful, most notably in the Pan Am 103 disaster, where Pan American Airlines was found liable for willful misconduct in failing to prevent a bomb from being smuggled aboard Flight 103.

In 1991, a United States Federal District Court in Florida found that American Airlines was guilty of "willful misconduct" for the 1995 Cali, Columbia Flight 965, Boeing 757 flight disaster. Apparently, the airline’s pilots crashed into the mountains because they were confused as to their exact location while flying IFR (in clouds). Based on the finding of "willful misconduct," the Flight 965 plaintiffs expected to be able to collect the full measure of their damages. The families of the flight passengers were recently shocked when the United States 11th Circuit U.S. Court of Appeals reversed the Federal District Court Judge in Florida. The appellate judges held that the trial judge employed standards that were too liberal in enabling plaintiffs to establish that the airline was guilty of willful misconduct. Now without proof under the stricter test that the airline’s pilots knowingly flew recklessly, the families may face the traditional $75,000 liability limit.

The United States Signed a Treaty Agreeing to the Warsaw Convention

The Warsaw Convention was the result of a 1929 international air carrier meeting held in Warsaw, Poland. The Convention resulted in a treaty ratified by the United States in 1934. The Convention was an agreement by the airlines to limit their liability for damages to victims of international airline accidents. The fear in 1929 was that a major airline disaster would put a fledgling airline out of business and result in a morass of conflicting legal claims under different countries’ laws. A positive benefit to society from the Convention was the creation of a uniform system of legal jurisdiction for handling international accidents involving physical injury, death and cargo loss. The airlines also achieved a direct pecuniary protection — a liability damage limit for injuries and death based on an artificial monetary unit called a Special Drawing Rights (SDRs.) The airlines agreed to limit their liability to $100,000 SDRs, equivalent in those days to about $8,300 (U.S.). Subsequently in 1966, the limit was raised to $75,000 (U.S.) by the Montreal Agreement that amended the Convention. It was critical to the airlines and their insurers that The Warsaw Convention prevents victims from suing the airlines for punitive damages no matter how reckless the misconduct of the airline's employees.

The Warsaw Convention also protected the airlines by limiting the countries in which the victims could bring a lawsuit. Only countries that qualified under the following requirements could have jurisdiction to rule on Warsaw Convention airline injury or death claims: (1) the place of business where the contract of carriage was entered into. (Usually the place where the tickets were bought), (2) the county which was the destination of the flight, (3) the domicile of the carrier, or (4) the carrier’s principal place of business.

The Warsaw Convention applies only to the airlines and does not control damage claims by victims against other defendants. Thus, the manufacturer of the airliner and the manufacturer of sub-component parts or systems installed in the airliner can be sued without the Convention limitations. Airports, private security companies or other service providers can be sued outside the Convention unless they are found to be performing the airlines’ functions under The Convention. Even the United States government can be sued in U.S. federal courts without Warsaw Convention limitations, as long as the operational negligence of its air traffic controllers, or the non-policy making and non-discretionary functions of its government employees are found to be a cause of the disaster.

For 70 Years, There was Disparity in Airline Liability Law Between Domestic and International Flights

* The family of a passenger who is ticketed for a domestic flight, who is physically injured or killed in a domestic airline accident, whether on a U.S. carrier or a foreign carrier, can sue the airline and collect full measure of compensatory damages permitted by the appropriate state law.
* Prior to 1997, the family of a passenger who was ticketed for an international flight, and was physically injured or killed in an international airline accident, whether on a U.S. carrier or a foreign carrier, could not collect the full measure of damages permitted by U.S. Laws. The plaintiff was limited to recovery of a mere $75,000 (U.S.) pursuant to the Warsaw Convention Treaty.

The inequity imposed on American passengers injured while traveling internationally, was publicized by the efforts of leading aviation plaintiffs attorneys to change the law in this area. The efforts of these attorneys coupled with the growing lobby by airline survivor groups pressured legislators to achieve reform. These pressures led to threats by the United States to pull out of the Warsaw Convention and denounce the treaty. If the United States disavowed the Warsaw Convention, the treaty would unravel and the airlines of the world would be exposed to unlimited liability. There would be chaos in the courts and there would be no binding international treaty controlling which countries would have legal jurisdiction after an international airline disaster. The airlines of the world decided to engage in a little self-regulation to preserve the Warsaw Convention. The airlines struggled to preserve some of the important protections they enjoyed against claims by victims of airline disasters under the Convention. They called upon the International Air Transport Association (IATA) to come up with a plan.

After 1997, the Airlines Voluntarily Entered Into an Intercarrier Agreement Waiving the $75,000 Liability Limit

IATA in cooperation with the United States Department of Transportation sponsored an international intercarrier agreement on passenger liability that was adopted by airlines starting in 1997. Today, over 120 airlines have signed the agreement. The intercarrier agreement removes the $75,000 (U.S.) limit of liability and allows passengers to recover full compensatory damages for physical injury or death in an "accident," according to the laws of their domicile, or place of permanent residence. After 1997, almost all the airlines have agreed that they can be sued for the entire amount of damages that a victim’s country of domicile would normally allow the family to recover. The victims only have to show that the airline was negligent in causing their injuries.

The airlines have only one defense against unlimited compensatory damage liability under the new agreement. They can try to prove that they took "all necessary measures" to prevent the damage. Under U.S. laws, airlines are held to the ‘highest duty of care" because they are "common carriers." Air carriers have such high responsibilities because they hold themselves out to the public at large for common carriage by air. Theoretically given the "highest standard of care," it should be easy to show an airline was negligent because it failed to live up to the standard of care. Similarly, it should be extremely difficult for an airline to prove that it took "all necessary measures" to prevent the damage. Aviation lawyers have hypothesized that perhaps a missile shoot down, an unpreventable act of sabotage or some unforeseeable intervening cause of a crash would be the only circumstances in which an airline might successfully defend against unlimited liability for damages in a Warsaw Convention case.

After 1997, American Passengers Who Are Physically Injured on an International Flight Can Collect For All Proven Damages

As a result of the Intercarrier agreement, victims can collect for all the compensatory damages they can prove. Another unique aspect to the newly-modified Warsaw Convention is the fact that the airlines have strict liability up to $100,000 SDRs. A "Special Drawing Right" is a fluctuating composite unit of money) equivalent to approximately $135,000 for U.S. passengers. The $135,000 benefit is for physical injuries or death of international passengers suffered on the airline or while in the process of embarking or disembarking. The strict liability of the airlines for $100,000 SDRs in U.S. courts can be a "no questions asked" entitlement to payment of the first $135,000 U.S. of their damages. Indeed, after the Swiss Air 111 disaster, Swiss Airlines, which was a signatory to the intercarrier agreement, set precedent by promptly paying $135,000 to each of the victims’ families of Flight 111, without acknowledging its liability for the crash.

What about Accidents on International Flights not Involving Physical Injuries or Mishaps not deemed Accidents?

Airline insurance defense lawyers have successfully defended the airlines and their insurers against various tort claims resulting from wrongdoing on international airline flights that do not rise to the level of an actual "accident." The airlines have always taken the position that various mishaps or illnesses outside their control were not "accidents. " further they argued that emotional distress did not result from physical injury was not a damage payable under the Convention. The United States Supreme Court has supported the airlines in a landmark decision this year. The Supreme Court has held that an "accident" for purposes of the Convention, means "an unexpected or unusual event or happening which is external to the passenger." Thus, where the Warsaw Convention applies, international passengers will not be able to recover against the airline for emotional damage claims where there is no physical injury or for mishaps not caused by airline fault such as illnesses or passenger transgressions. As an example of how confusing the laws can be, Just last year, the Ninth Circuit Court of Appeals in California paved the way for domestic passengers to bring garden variety tort claims (a "tort" is a civil wrong) in U.S. Courts resulting from incidents on domestic airline flights that do not involve "accidents" — just the opposite of international flights.

The Warsaw Convention Needs Further Improvements

The Warsaw Convention is still being modernized. Just this year, major changes were incorporated in the 1999 Montreal Convention that is subject to ratification. Changes being made to modernize Warsaw Convention involve efforts to codify the question of joint liability for co-sharing carriers. Thus, the contracting carrier, the one that sells the ticket and the airline that actually conducts the flight may both be potentially liable under the newly modified Warsaw Convention. Additionally, the modernized Warsaw Convention may create a "Fifth Jurisdiction" wherein victims can bring a lawsuit in their country of domicile or permanent residence. The "Fifth Jurisdiction" would cure the problem of an American abroad who traveled on a foreign carrier from one country to another. Under the Warsaw Convention the family of the traveler abroad would under the traditional jurisdictional requirements, have to sue for his death in the country where he bought his ticket or at the destination. A "5th Jurisdiction" would allow the survivors to sue in U.S. Courts.

Importantly for the airlines, the newly modified convention still protects the airline against punitive damages even after the intercarrier agreement. Passengers may not sue the airlines for punitive damages in a Warsaw Convention case. Airline lawyers will insist that passengers’ damages should be measured by the laws of their domicile despite where they bring their lawsuit. This is a very important issue for the insurers of airlines. Although the United States is known worldwide for state laws that generously compensate air crash victims, many countries where international travelers are domiciled, do not have laws that provide such generous compensation.

Can Plaintiffs Collect Millions after International Airline Disasters?

The new Intercarrier Agreement modifying The Warsaw Convention theoretically exposes the airlines to unlimited liability. But the amount of damages for the plaintiffs is still dependent upon the laws applied by the country that has jurisdiction over the lawsuits. It is dependent upon the extent to which compensatory damages will be recoverable according to the law of the passengers’ domicile (home) or permanent place of residence. In a typical Warsaw Convention case, an American would be subject to recovery of damages under U.S. law; a Danish passenger for example, would collect damages in accordance with the law of Denmark; a Brazilian passenger would collect damages in accordance with the law of Brazil. This may sound straightforward, but these issues can be very complicated in the U.S. courts because of choice of law issues involving a determination of which states’ laws should apply to measure damages.

A U.S. court handling an international air crash case by an American plaintiff under the Warsaw Convention must use "choice of law" principles to determine which state laws in the U.S. will apply to a passenger’s claim. One way airline disaster lawyers earn their fee involves persuading the courts to apply the laws of the more generous states to their clients’ cases. Those attorneys, who represent families of victims not domiciled in the U.S., typically struggle for legal arguments to try to justify applying generous U.S. laws to their clients’ claims instead of the laws of the foreign domicile or permanent residence.

How Generous Are U.S. Laws for the Payment of Air Crash Damages?

Compensatory damages are supposed to pay a victim for the losses suffered because of the harm caused by a wrongdoer. Victims of airline accidents are entitled to collect two types of compensatory damages under the laws of most states in the United States. Injured passengers or the families of decedents can usually collect full pecuniary (economic) damages. Pecuniary damages include medical expenses and lost wages suffered by those who are personally injured. The families of those passengers who were killed can recover pecuniary damages for the lost support no longer provided by the decedent.

In addition to pecuniary damages, most states allow the recovery of non pecuniary (non-economic) damages, which may exceed pecuniary damages. In the case of personal injury victims, non pecuniary damages are recoverable for pain and suffering. In death cases, the families of the decedents are usually allowed the recovery of non pecuniary damages for the loss of care, comfort and society. Some states allow pre-impact (non pecuniary) pain and suffering damages for the time the person consciously suffered after being harmed but before dying.

When the plaintiff is represented by a skillful aviation attorney, the award for non pecuniary damages can be higher than the award for pecuniary damages. The total verdict may be in the millions of dollars, particularly where the decedent was a middle-class or higher wage earner who supported a family. In order to recover such large amounts, here must be a "collectible" defendant with insurance or sufficient assets to pay their damages. The award of non pecuniary damages is usually at the jury’s discretion subject to reduction by a judge if the amount is excessive. Punitive damages are prohibited under the Warsaw Convention and extremely rare in airline crash litigation.

A few states have enacted laws to limit accident victims with regard to recovery of non pecuniary damages. In those few states that impose such limits, the limit per victim, is often in the vicinity of $250,000 to $500,000 for non pecuniary damages. States with limits on non pecuniary damages will usually still allow victims’ families to recover the full amount of their pecuniary damages.

Crashes in the Ocean - The Death on the High Seas Act (DOHSA)

Air crash lawyers must analyze where a crash occurs and whether it was on an international flight. Questions of jurisdiction, venue, the law of liability and the law of damages may be affected by this analysis.

Domestic Crashes on Land: If a passenger dies in a domestic airplane crash on the land. The passenger’s family with proof of negligence has the potential of recovering all of their compensatory damages from the carrier under the state law that applies to their case. They may face defenses and damage limitations controlled by applicable state laws.

International Crashes on Land: If a passenger dies in an airplane crash on the land during an international flight, the passenger’s family can collect the full compensatory damages under the new Warsaw Convention with proof of negligence, plus be assured of payment of the first $135,000 of damages without the need to prove negligence. The passenger may also collect full compensatory damages from all liable parties if not paid by the airline.

Domestic and International Crashes in U.S. Territorial Waters: If a passenger dies in an air crash inside the "territorial waters" of the United States, the passenger’s family can collect their full compensatory damages in most U.S. Courts, according to applicable state or federal law. If the crash occurs on a domestic flight, the only limitations are those peculiar to the particular U.S. law that applies. With a crash into U.S. territorial waters on an international flight, the current provisions of the Warsaw Convention will be applied.

International Crashes on the High Seas: If a passenger dies in an airplane crash on or above the "high seas," The Death On The High Seas Act (DOHSA) applies in U.S. courts. Admiralty law applies. The survivor’s damage recovery was previously restricted to collection of pecuniary loss only. Since 2000, the victims’ families in commercial accidents, can recover for the non-pecuniary loss of care, comfort and society resulting from the death of their loved one. There is no recovery for the pre-impact pain and suffering of the victims as the airplane plummeted to the ocean. In KAL 007 disaster case, the United States Supreme Court held that neither the families nor the estates of the victims can recover non pecuniary damages for the pre-impact pain and suffering suffered by passengers in many airline disasters.

What are the "high seas"?

For decades, federal courts said the high seas were the ocean waters beyond a "marine league" from shore. A marine league is three nautical miles from the shores of the territories of the United States. In 1988, President Reagan issued a "Territorial Sea Proclamation" extending the United States’ sovereignty to a 12-mile territorial sea. The 12 mile limit was applied by the courts to the TWA 800 disaster. TWA 800 crashed inside 12 miles but outside 3 miles. The High Seas are beyond the 12 mile territorial limit from the shore of the United States and its islands.

The Year 2000 Death on the High Seas Act Amendment

The newly amended provisions of DOHSA clarify that crashes within 12 nautical miles of the shores of United States and resulting in wrongful death actions will be judged by those laws in effect in various states and under federal law. Those crashes outside 12 nautical miles from the shores of the United States will still fall under the Death on the High Seas Act. Under the amendment however, compensation for non-pecuniary damages will be allowed in addition to pecuniary damages for commercial crashes.

Non-pecuniary damages will be permitted only for the loss of care, comfort and companionship in death actions arising from commercial aviation accidents. Commercial aviation involves transport "for compensation or hire." Thus where persons are killed in "commercial" accidents on the high seas (typically the airline, commuter and charter passengers) the culpable defendants may be forced to pay non-pecuniary damages on top of pecuniary damages.

General aviation accidents on the high seas involving corporate aircraft and privately owned aircraft are excluded. Helicopter flights over water that do not involve compensation or hire, will not be covered by the amended DOHSA. Similarly, public-use aircraft accidents and military aircraft accidents are still subject to the harsh limitations of the 80-year-old Death on the High Seas Act, whereby only pecuniary damages can be recovered.


The Role of the Airline Accident Plaintiff’s Lawyer

U.S. airlines are good at offering settlements when they face liability after a disaster. When human error causes a disaster, it is not that difficult to prove that an airline is liable. Knowing this, mass disaster law firms specialize in advertising for large numbers of such passenger cases. Survivors should evaluate whether they want an individual lawyer to represent them or accept invitations to retain a mass disaster law firm. Mass disaster law firms often represent large numbers of victims’ families and settle dozens of death cases out of a single disaster with the same insurer. They are especially challenged to obtain distinctive awards of non pecuniary damages when they represent dozens of spouses in negotiating with the same insurance company. While the airlines will now pay sufficient damages for injuries or deaths on both domestic and international flights, the amount paid will depend on the skill of the lawyer at individualizing his client’s damage case. An experienced aviation lawyer should be able to present claims under the most favorable laws and in the best forum. The best lawyers use sophisticated forensic economics theories to distinguish their client’s damage claims from the other passengers.

NOTE: The subjects discussed in this article do not constitute legal advice. My objective is to alert you to some common issues so that you can avoid or minimize legal trouble. Anyone with an aviation law problem should be guided by the advice of his or her lawyer, under applicable federal and state laws, after a full and confidential disclosure of all relevant facts.