International Air Law: Solicitors Advice - Assignment Example

International Air Law – Solicitor’s advice Material facts from the incident Mrs Smith, a British national purchased an air travel ticket on Qantas from a British Airways travel agent to fly to Melbourne, via Singapore. She was advised that she was going to join a connecting flight in Singapore to take her to Melbourne. The departure from Heathrow Airport was delayed due to congestion caused by snow at the airport. The plane did not manage to make-up for the lost time by the time it arrived at Changi Airport in Singapore. As a result, she missed her connecting flight to Melbourne at Changi Airport. Mrs. Smith may not be entitled to compensation for this inconvenience from Qantas since the delay was caused by a factor beyond the control of the servants of this carrier1. After arriving at Changi Airport, she was advised to walk to a transfer desk at terminal 1 in the airport to arrange for an alternative flight to Melbourne. The aged Mrs Smith had become weary from the long flight and consequently, she became lost and confused. She was carrying a cabin bag that weighed 6 kilograms which contained presents for her grandchildren. She did not find a trolley to carry the baggage and instead had to carry it around 400 meters to the transfer desk at Terminal 1 – straining her back muscle in the process. After several hours of delay, she was advised that Qantas had secured a seat for her on a Singapore Airlines flight to Melbourne. She was transferred from Terminal 1 to Terminal 2 on an automated sky-train. This further strained her ailing back as she did not receive any assistance from the Qantas ground staff. Generally Mrs Smith did not receive the desirable care from the staff of Qantas at Changi Airport and consequently, she strained her back muscle. Though her injury was not caused by an event that can be explicitly be regarded as an accident, it can be termed as an accident due to the failure of the staff of Qantas to provide the necessary assistance to her. This qualifies Mrs Smith for compensation from Qantas for the bodily injuries she sustained at Changi Airport under the Montreal Convention.2 On top of that, she can receive further compensation for the severe stress she went through if she can be able to prove that the physical injury led to psychological injury. Despite the difficulties and the worsening back pain, Mrs Smith managed to reach the gate lounge at Terminal 2 and to board the flight to Melbourne. During the course of flight to Melbourne, she noticed that the ‘fasten seat belts’ sign of the Singapore Airlines plane was off. She decided to walk to the toilet but as she was walking down the aisle, the plane suddenly hit a severe turbulence. She was thrown against the bulkhead of the cabin, fell on the floor clumsily and broke her arm in the process. Singapore Airlines are liable to compensate Mrs Smith for the arm injury since it occurred onboard. The responsibility can be transferred to Qantas if there was an explicit agreement for the latter to take full responsibility. 3 Mrs Smith went to hospital for her arm to be treated, immediately after arriving in Melbourne. Upon further examination, the she was found to have developed deep vein thrombosis in her leg which caused her to remain in the hospital for a long time. This injury also incapacitated her for the entire holiday period. Unfortunately, some illnesses triggered by flights, such as deep vein thrombosis, are not covered under the Montreal Convention.4 Mrs Smith wrote to both Qantas and Singapore Airlines to seek compensation for the injuries she sustained but they refused to accept any liabilities for the injuries she suffered. Legal issues One of the issues that could arise in this case is whether Mrs Smith is entitled to compensation for the inconvenience that was occasioned by the delay in flight. Secondly, an issue arises on whether she is entitled to compensation for the severe stress she suffered, which was caused by the difficulties she encountered at Changi Airport in Singapore. The third issue relates to whether she should be compensated for the injury that she might have sustained at Changi Airport in Singapore. Fourth, an issue arises on whether she should be compensated for the bodily injury she sustained on her arm during flight from Changi Airport in Singapore to Melbourne. Finally, an issue arises on whether Mrs Smith should be compensated for the deep thrombosis injury she sustained in the course of her flight. This leads to the question: are Qantas and Singapore Airlines liable to compensate Mrs Smith for the injuries she sustained throughout the flight? Regarding whether Mrs Smith may be compensated for the inconvenience that was caused by the delay in flight, it should be noted that under the 1999 Montreal Convention, a carrier is liable for damages or injuries on passengers resulting from delay in international flights.5 However, the carrier will not be liable if it proves that the delay was not occasioned by factors beyond its control or the control of its servants or agents. Further, it must be proved that it was impossible for the carrier, the servants or agents to take measures to avoid the delay. In this case, the delay was caused by the presence of snow at Heathrow Airport. This is a meteorological factor and thus, it was beyond the control of Qantas and its servants. 6 Thus, although the delay may have inconvenienced Mrs Smith, she is not entitled to compensation under the 1999 Montreal Convention. Concerning whether Mrs Smith is entitled to compensation for the severe stress she suffered at Changi Airport, it should be realised that psychological injury is not solely sufficient for a claimant to recover compensation under the Montreal Convention. Application of the Montreal Convention in the past has shown that a claimant has to show that the psychological injury resulted from physical injury or the vice versa.7 Mrs Smith in this case sustained severe psychological stress as a result of the physical difficulties she encountered at Changi Airport and from the operations of Qantas. She can recover compensation from Qantas for the psychological difficulties she encountered if she can to prove that they occurred as a result of the physical injuries she sustained. The most suitable jurisdiction for Mrs. Smith to file her claims against Qantas in relation to this issue is London. Being her place of permanent residence, this would help to reduce costs related to the case. The third issue concerns whether Mrs Smith is entitled to compensation for the body injury she sustained (strained back muscle), while walking from one terminal to another while carrying her bag at Changi Airport in Singapore. It should be noted that a cause of bodily injury falls within the substantive scope of the 1999 Montreal Convention as long as the accident leading to injury occurred during the flight or while embarking or disembarking, and if the flight was international. As long as these conditions are met, the 1999 Montreal Convention provides exclusive remedy for claimants. This convention applies throughout the flight even if there is a scheduled stopover at a point between the place of departure and the final destination. Thus, airlines are required to compensate passengers for injuries resulting from accidents occurring during stopovers. It is therefore clear that under the Montreal Convention, carriers are only liable for injuries resulting from “accidents”. However, the convention does not clarify what constitutes an accident. The application of this convention in past cases has shown that the dividing feature is whether the event leading to injury is a usual or expected feature of air travel. In other words, an accident can be termed as an unexpected or unusual event that is external to the passenger. Further, various case judgments have determined that if the staff of an airline notice the need for and fail to provide the necessary care or assistance to passengers who encounter difficulties, a subsequent injury to the passenger can be termed as an injury. Qantas staff failed to provide Mrs Smith with the necessary assistance to enable her to transport her baggage around the airport. Consequently, she strained her back muscle while carrying her baggage from one terminal to another at the Airport. If it is determined that Mrs Smith sustained an injury on her back muscle, she will be entitled to compensation from Qantas if she is able to prove that the injury resulted from the accident as explained above. The event that might have caused injury on her back muscle might be termed as an unexpected case since she alerted Qantas staff but they ignored her or in case the staff noticed the difficulties she was going through but failed to act. Therefore, Mrs Smith’s success for compensation for any injury she sustained on her back muscle will be determined by her ability to show that the injury was caused by an accident. The fourth issue relates to whether Singapore Airlines should compensate Mrs Smith for the injuries she sustained onboard during flight from Changi Airport to Melbourne. The 1999 Montreal Convention provides that any accident that leads to injury on the part of passengers while travelling on a plane is the liability of the airline company.8 It states further that airlines must accept, as a condition of carriage, responsibility for any injury occurring onboard or in the course of embarking or disembarking operations. Mrs Smith was engaged in an air carriage contract with Qantas to be transported from London to Melbourne, via Singapore. She was handed over to a successive carrier, Singapore Airlines after the stop over. In this case, Qantas is the contracting carrier while Singapore Airlines is a successive carrier. Both are parties to the provisions of Montreal Convention and each of them is dealt with independently in regard to the part of the contract which is performed under its supervision. In other words, a passenger can file a suit against the successive carrier if damage occurs in its supervision. However, the contracting carrier can take responsibility for the whole journey if there is an explicit agreement with the successive carrier.9 In this case, the accident that caused Mrs Smith to break her arm took place onboard as the Singapore Airlines plane was travelling from Singapore to Melbourne. Thus, Mrs. Smith is entitled to compensation from Singapore Airlines for the arm injury she sustained from the accident that occurred during the flight from Singapore to Melbourne. If there was an explicit agreement between the two carriers that Qantas would take the whole responsibility, this carrier should be liable for the injury. The other issue relates to whether Mrs. Smith should be compensated for the deep vein thrombosis that she developed during the course of the flight. Mrs. Smith needs to understand that serious illnesses such as deep vein thrombosis which are triggered by an airline flight are not covered for compensation under the 1999 Montreal Convention.10 The application of this convention in the past court cases has determined that it is difficult to determine whether the illness was caused by the accident or he/she was ill before the accident, unless there is medical proof to show that. Mrs. Smith may not be liable for compensation for the deep vein thrombosis she was diagnosed with unless she presents a medical proof that she was not suffering from that condition prior to the flight. Relevant law Several laws are relevant to Mrs. Smith’s case. First, Article 19 of the Montreal Convention (1999) provides that the carrier is liable for damage resulting from delay in the carriage of passengers, baggage or cargo by air. The article states further however, that “the carrier shall not be liable for damage resulting from delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.” This article, therefore, confirms the fact that Qantas is not liable to compensate Mrs. Smith for the delay since it was caused by factors beyond the control of its servants. Article 17 (1) of the Montreal Convention stipulates that 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.”11 This article helps to settle two issues in this case. First, the article helps to settle the fact that Mrs. Smith is entitled to compensation from the responsible carrier for the arm injury she sustained onboard during the flight from Singapore to Melbourne. Secondly, it settles the fact that Mrs. Smith is entitled to compensation from Qantas for the injury on her back muscle that she might have sustained as she walked around at Changi Airport, if it is determined that the injury was caused by an accident. In Rafailov v. El Al Israel Airlines, Ltd case, the court ruled that an accident under the Montreal Convention refers to “an unexpected or unusual event or happening that is external to the passenger.”12 The court explained further that “when the injury indisputably results from the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident.” This verdict helps in understanding that the dividing feature is whether the event leading to injury is a usual or expected feature of air travel. A US Supreme Court decision during Olympic Airways v. Husain case indicated that the failure of airline staff to provide necessary assistance to a passenger, leading to an injury, also constitutes an accident. However, the airline staff must have neglected their duty of taking care of the passenger’s “wellbeing and safety” by failing to take appropriate action when it appeared that the passenger was experiencing difficulties and needed assistance.13 These two verdicts help to settle the fact that Mrs. Smith is entitled to compensation for the injuries she sustained at Changi Airport. The incident that led to her injury can be termed as an accident if the staff of Qantas noticed her difficulties and failed to assist her. An English court of appeal during the case of Morris .v. KLM [2002] UKHL 7 ruled out the claims brought forward by the plaintiff on this basis. The plaintiff, a fifteen year old girl was assaulted by a male passenger seated next to her. She claimed that as a result, she suffered clinical depression but she did not sustain any physical injury. The court found that the psychological injury she sustained fell outside the scope of the Montreal Convention. However, the judgment held in a district court rule case Jack .v. Trans World Airlines Inc, 854 F Supp 654 (ND Cal, 1994) indicated that it is possible to recover psychological injuries provided that the passenger proves that they were caused by physical injuries sustained. A judgement of a French court on Emirates v X no 09-71307 cases which took place in June 23 2011 is particularly relevant to the issue relating to whether Mrs. Smith should be compensated for the deep vein thrombosis she was diagnosed with after the flight. 14 In this case, a passenger developed deep vein thrombosis during an Emirates flight from Colombo to Paris on March 1 2004. The flight involved stopovers in Muscat and Dubai, and the passenger was diagnosed with deep vein thrombosis after his return to France. The passenger commenced proceedings against Emirates in a Paris court. The court ruled that he could not be compensated since it was not clear that he developed the condition before or during the course of the flight. Efforts by the passenger to lodge an appeal were not successful after the First Civil Chamber of the Court of Cassation reiterated the conditions for establishing an international air carrier’s liability under the 1999 Montreal Convention. As noted, Article 17 of the Montreal Convention provides for compensation on injuries resulting from accidents that occur during an airline travel. However, the Court of Cessation in this case reiterated that Article 17 applies only where the injuries occur from an accident. 15 The court found that the cause of the deep vein thrombosis was unknown since there was no evidence of a previous case. Therefore, this case settles the fact that Mrs. Smith is entitled to compensation from the responsible carrier only if she can present medical proof that she was not ill before the flight and the condition developed as a result of accident that occurred during the flight. Conclusion In conclusion, the 1999 Montreal Convection defines various grounds under which a passenger can file claims against a carrier for injuries sustained during an international flight. Applying the provisions of this convention to Mrs. Smith’s context, it is clear that she is not entitled to compensation for the inconvenience that was occasioned by the delay of Qantas’s plane from London to Singapore. She can be compensated for the back muscle injury she might have sustained at Changi Airport, if it is proved that the injury was caused by an accident. Third, Mrs. Smith can receive compensation from Qantas for the psychological injury she might have sustained at Changi Airport if it is proved that this resulted from physical injury. Further, she is entitled to compensation from either Singapore Airlines or Qantas for the arm injury she sustained from an accident that occurred onboard while travelling from Singapore to Melbourne. Finally, Mrs. Smith may not receive any compensation for the deep veil thrombosis illness that she was diagnosed with after the flight. The most suitable jurisdiction for Mrs. Smith to file her claims is London, where she resides permanently. References 1st Civil Chamber of the Cour de Cassation, Emirates v. X. n° 09-71307, 2011 [Accessed 4 November 2012] http://www.internationallawoffice.com/newsletters/Detail.aspx?g=703c8d80-468f-446c-8120-e9e520ea9076 Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Montreal on 28 May 1999 [Accessed 4 November 2012] http://myweb.whitman.syr.edu/pjcihon/MontrealConvention1999.htm Cotter, C., E, Recent Case Law Addressing Three Contentious Issues in the Montreal Convention, 2011 [Accessed 4 November 2012] http://www.ralaw.com/resources/documents/Cotter.AirSpace.pdf Giemulla, E., Schmid, R., Müller-Rostin, W. Dettling-Ott, R. & Margo, R. (2010), Convention for the Unification of Certain Rules Relating to International Carriage by Air, [Accessed 4 November 2012] http://www.kluwerlawonline.com/toc.php?pubcode=MCO Read More