Warsaw Convention in the ourt Systems - Article Example

A discussion of the Warsaw Convention and the definition of accident as it has been defined and utilized in the court systems Introduction The purpose of insurance is to protect individuals and entities from liabilities that occur through uncommon events that are defined legally.1 In order for the risk to be insured, criteria must be developed and met so that the incident will qualify. Criteria include subjects such as the nature of the incident, the damage that was suffered, the time, the place, and the causes behind the consequences of the incident. The severity of an incident will be taken under consideration as will the way in which the law defines the way in which the incident relates to the liability of the defendant. For the purposes of airline travel, the Warsaw Convention that was signed in 1929 put into place rules and regulations that would help to guide international airline travel for passengers, luggage, and cargo in order to provide some safeguards for both the traveler and the airline. Through these guidelines the airline industry can find some protection through limitations that were set forth. The Convention for the Unification for Certain Rules Relating to International Carriage by Air, dealt with the matters that related to air transportation. This convention, also know as the Warsaw Convention, was signed on 12 October 1929. The intent of the work was to determine the liability that would be given to air carriers in regard to passengers and their possession, and the possessions put into cargo when transported by air. Problems over the convention, however soon arose as it did not seem to adequately regulate the issues of liability that would arise. Subsequent conventions were introduced in order to more adequately compensate passengers and those with cargo through such works as the Hague Protocol (1955), the Guadalajara Convention (1961), the Guatemala City Protocol (1971) and the Montréal Protocol, numbers 1, 2 and 3 (1975)2. Eventually, the Warsaw Convention was revised and the system was once again made more uniform through the Convention of the Unification of Certain Rules for International Carriage by Air which came into existence on 28 May 19903. This convention, known as the Montreal Convention, is important as even though it provides clarification on some matters, it is still the Warsaw Convention that provides the foundation because more states are signed with this convention, thus it has the stronger sense of rule. Article 17 of the Warsaw Convention has an interpretation of the word accident which is: “The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. 4“ This article has been the centre of a great many controversies over the years as it does not adequately provide the description that is needed in order to properly govern many of the scenarios that have occurred in aviation history. Defining an Accident and the Liability of Airlines The court systems have been set with the burden of defining what is to be determined as an accident in regard to incidents that occur on air transportation. The word accident has the same meaning whether it is used in the United States or in the United Kingdom. While the Warsaw Convention intended to identify and define what constituted an accident, it has been left to the courts to legally define the term and assess damages according to that definition. In order to prove that an incident is an accident under Article 17, the claimant must prove that the damages that were suffered were due to an incident that happened during or between the time of boarding and disembarking the plane. The injuries must have been obtained as a result of the accident, but not have caused the accident. As well, the incident must have occurred as an external event, rather than an internal event within the passenger. One of the biggest issues that is ignored by the convention is in the need to give explanations for how an accident can be defined. This has created a great deal of issue in the court as this term has had to be redefined through many differing cases as they were heard in the court systems. As in the example of Air France v Saks (1985)5, the passenger felt a severe pressure and pain stemming from her left ear and as a result suffered permanent deafness. The claim was made that the pressurization system had not been maintained properly, thus creating liability of the airline. The resulting hearing issues would not be resolved and she would have permanent damage. The case was presented as an accident under Article 17. It was not termed as an accident in the District Court, but this was overturned in the Ninth Circuit when it was appealed because it was determined that a malfunction or abnormal operation of the plane was not a determining factor in the liability for which the airline might be held, but that the event that caused the injury occurred between the time the passenger boarded the plane and when the passenger got off the plane, therefore making the airline liable. The decision was eventually turned down when the Supreme Court handed down a determination that there was a decided difference between an accident and an occurrence. In this case, the difference was defined through the concept of flexibility, which means that the cause of the injury is relevant to the quality of the incident. In this case, there was no specific event that caused the injury. An accident, therefore, was defined as an event that occurred outside of normal operations, while an occurrence was something happened within the boundaries of normal operations6. The question became differently framed when a suit was brought by Rubina Hussain against Olympic Airways. In the decision Olympic Airways v. Husain (2004), the issue was whether or not the negligence to perform a function for a passenger constituted an accident. In this case, Dr. Abid Hanson, the husband of Rubina Hussain, was experience difficulties because of his asthma in relationship to second hand smoke that was causing him to have difficulty breathing. After the flight attendant refused to move their seating assignment, and Dr. Hanson died from a reaction to the second hand smoke. While on first glance this might seem either a negligent or willful act that caused his death, the court decided that it qualified under the definition that was created in Air France v Saks (1985) in that an accident is defined by “ an unexpected or unusual event or happening that is external to the passenger”.7 The event qualified under this definition because the smoke was external to Dr. Hanson. The reasoning behind the decision is that this was not wholly the responsibility of the internal events that created an unusual occurrence, as was found in Air France v Saks (1985). This event occurred because of events that were outside of the purview of Dr. Hanson and beyond his own ability to control. It is the external factor that creates the foundation for the decision that this qualified under the definition of accident. Furthermore, there was a point during the flight when Dr. Hanson asked for oxygen, but he still died from the incident because of the refusal of the flight attendant to assist him initially. The refusal was admittedly not usual behavior and this is what created the framework for the accident. It would have been the policy of the airline to reseat a passenger if such a complaint was made. Another medical issue that has been at the center of legal controversy has been that of Deep Vein Thrombosis (DVT) as it relates to air travel. DVT on airlines happens when a blood clot is formed in a deep vein, leading to pain and inflammation. This can then lead to the clot breaking free and traveling to the lungs, resulting in a pulmonary embolism. The condition is very serious and can be caused by flights (or any situation) where someone is seated for more than four hours8. In Deep Vein Thrombosis and Air Travel Group Litigation (2003) the liability of the airlines in regard to the resulting condition of DVT was examined in the English courts9. In this case, the court of the UK had the opportunity to discuss the definition of the term accident. The action was brought against 18 airlines from all over the world where passengers had suffered from the effects of DVT. In this case, the flights had not been abnormal and no unusual events had occurred. There was also no specific attempt to warn the passengers of the effects of long term sitting without getting up to encourage circulation. The effects of DVT were not discussed and no warning was given. The House of Lords made a decision in December of 2005 that the event of DVT did not constitute an accident. The case of Air France v Saks (1985) was of seminal influence as the defining factors of an accident were used in order to decide if the occasion of DVT was under this definition. Seating in an airplane, while contributory to the event, it was not specifically an unusual event or cause, so therefore did not constitute an accident under the Saks decision. Specifically, the decision stated that “A failure to act - a failure to warn - inaction - cannot ever be described as an accident”10 The definition of the Warsaw Convention through Article 17 that was defined by the decision handed down in Air France v Saks (1985) was used as a standard when the House of Lords made their decision. In order to further define the decision in Deep Vein Thrombosis and Air Travel Group Litigation (2003), the court depended on Fenton v. J. Thorely & Co (1903) in which it was determined that an accident was not a term that had a technical legal meaning. Lord Lindley stated than as accident was, “…any unintended and unexpected occurrence which produces hurt or loss. But, it is often used to denote any unintended or unexpected loss or hurt apart from its cause” and if the cause is not known, the loss of hurt itself would certainly be called an accident.”11 The decision in the case Blansett v. Continental Airlines Inc (2002), the plaintiff suffered a stroke an hour before landing in London while on a flight from Houston Texas. The man was confined to a wheelchair, without the ability to care for him, walk, or talk normally. In this case as well the inaction of the airline in providing warnings about the potential of DVT and claimed that this constituted an accident under Article 17. The Court of First Instance, the District Court would not grant a summary judgment, but were not prepared to deny a jury the opportunity to rule in favor of the claimant. However, the Court of Appeals in 2004 sent down a decision that failure to give a warning did not constitute an accident and that it was not outside the industry standards to not include this type of information directly to the passengers. The court said that Continental’s failure to warn of DVT was not an “unusual or unexpected event” and not a qualifying accident. Though many international carriers in 2001 included DVT warnings, it is undisputed that many did not. Moreover, Continental’s battery of warnings was in accord with the policies of the Federal Aviation Administration (FAA) which prescribes what warnings airlines should issue to passengers.12 In the decision of Caman v. Continental Airlines Inc (2006)in the UK, a failure to warn about the dangers of DVT was ruled as not an accident under Article 17 of the Warsaw Convention. The event of DVT did not affect the plaintiff until after he had landed and was at his destination. This decision was a matter of law that was subject and the failure to act is not covered by the wording of Article 17. In other words, not acting in a preventative manner does not fit the definition of accident as set forth in the Warsaw Convention13. Another deficit in the Warsaw Convention and Article 17 is that it does not cover any strictly psychological damage that might occur due to an accident on a flight, although some forms of psychological damage related to injury is covered. A case that shows the inadequacy is that of Morris v. KLM (2002) where a young girl who was on a flight between Kuala Lumpur and Amsterdam was mildly molested by a man that she discovered stroking her thigh while she was sleeping. The incident was reported immediately, but the depression that followed was contributed to that event. Since she did not suffer any physical damage, the Court decided that it did not fall under an Article 17 ruling.14 However, in some cases, the resulting physical harm can come from mental stress, thus constituting a positive result for the claimant. In King v. Bristow Helicopters (2001), the incident of a helicopter crash resulted in a case of post-traumatic stress disorder. The stress from the disorder resulted in peptic ulcer disease which caused serious physical damage. Because there was physical damage involved, the Court ruled that Article 17 did apply. 15 The liability of the airline also extends to incidents that occur while embarking and disembarking the plane. In the case of Day v. TWA (1975), the damages that were done during embarking, therefore the airline was considered liable. The same is true in the case of Evangelinos v. TWA where the incident in question happened during disembarking the vessel.16 These two cases provided a clarification that the acts of embarking and disembarking of the vessels covered under Article 17 were subject to its tenets. The case of MacDonald v. Air Canada (1971) was decided in favor of the defendant when the incident happened not during disembarking, but by the baggage claim. In this case, the events of the incident were defined by the location, rather than by the event itself. This further defined the scope of Article 17 as it pertained to the liabilities of the airlines.17 The court decided that the defined space of the plane itself, embarking and disembarking was the responsibility of the airline. However, in the case of Husserl v. Swiss Air Transport Company, it was decided that once the passenger had embarked onto a flight, they were the responsibility of the airline until the time they were safely disembarked. This incident occurred when the Swiss Air plane was boarded and hijacked to Jordan where the passenger was detained for four days. The resulting injuries and mental anguish were litigated under Article 17 and the decision that was handed down was that the passenger had never disembarked from the flight as intended and was therefore under the responsibility of the airline during the entire incident. The is furthered to include any time when the passengers are still under the control of the hijackers, but may have been lead from the plane. The passengers in their hostage state are still the responsibility of the airline.18 Conclusion The use of Article 17 of the Warsaw Convention has a vagary that has created an inconsistency in the way that liability has been defined and how courts have ruled. The attempts that have been made to define the concept of an accident have created problems in appropriately deciding cases brought under the idea of the accident. However, the courts have defined accident to mean an incident that happens externally to the passenger causing bodily harm, and in some incidents, mental harm. The courts have defined the space in which the airline is liable for issues which is limited to the embarking, travel, and disembarking of the plane. The English courts and the American courts have utilize the precedents and decisions from both countries in order to create definitions that can lead to appropriate decisions on cases that are brought against airlines under Article 17. There appears to be some differences in how strictly the defining incident fits into the terminology of accident, but the English courts tend towards a more strict parameter. Both courts have come to the conclusion that to define the word accident, the incident must be an unexpected event which can be compensated to the plaintiff when the criteria has been met. As well, the compensation is limited to physical injuries, with some exception to mental injures that are the result of the incident. The courts in both the United Kingdom and in the United States have defined the terms of Article 17 under similar definitions and have used them to create a body of legal decisions that define the protections for both the airlines and the passengers. Bibliography Agusti, F., Earle, B., & Schaffer, R. (2009). International business law and its environment. Mason, OH: South-Western Cengage Learning. Alexander, Y., & Sochor, E. (1990). Aerial piracy and aviation security. International studies on terrorism, v. 5. Dordrecht: Martinus Nijhoff Publishers. Beek, E. J. R. Buller, H. R., & Oudkerk, M. (2009). Deep vein thrombosis and pulmonary embolism. Chichester, UK: J. Wiley-Blackwell. Bohlen, F. H. (1915). Cases on the law of torts. Indianapolis: Bobbs-Merrill Co. Brisibe, T. (2006). Aeronautical public correspondence by satellite. Essential air and space law, 3. Utrecht, The Netherlands: Eleven International Pub. Butler, M. A., & Diederiks-Verschoor, I. H. P. (2006). An introduction to air law. Alphen aan den Rijn: Kluwer law international. Cane, P. (2006). Atiyahs accidents, compensation and the law. Law in context. Cambridge [u.a.: Cambridge Univ. Press. Goldhirsch, L. B. (2000). The Warsaw Convention annotated: A legal handbook. The Hague: Kluwer Law International. Gollier C. (2003). To Insure or Not to Insure?: An Insurance Puzzle. The Geneva Papers on Risk and Insurance Theory Heilbronn, G. N. (1990). Essays on aviation and travel law in Hong Kong. Hong Kong: Hong Kong University Press. Murphy, S. D. (2006). United States practice in international law: Vol. 2. Cambridge: Cambridge University Press. Organisation de laviation civile internationale. (1999). Convention for the unification of certain rules for international carriage by air: Done at Montreal on 28 May 1999 : signed at Montreal on 1 October 1998. Montreal: OACI=ICAO The Montreal convention in the European context: A Passengers Paradise?, Harry Manuel, Judge in the District Court of Zwolle/Lelystad, The Netherlands, March 2008. Read More