If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation the carrier shall be wholly or partially exonerated…
Should a carrier be able to establish exoneration, it is entitled to a set off of all or some of the amount otherwise awardable to the plaintiff. A typical example of such a situation would be where the passenger sustains injury due to his or her refusal to wear a seat belt when the seat belt sign is illuminated.
Interestingly, the Warsaw Convention allowed the carrier to avail itself of the “due care” defense. As the U.S. Supreme Court put it while examining the Warsaw Convention:
After a plaintiff has established a prima facie case of liability under Article 17 [of the Warsaw Convention] by showing that the injury was caused by an “accident,” the air carrier has the opportunity to prove under Article 20 that it took “all necessary measures to avoid the damage or that it was impossible for [the airline] to take such measures.” 14
Under the Montreal Convention, however, this defense is not available to the carrier until the first 100,000 SDR limit is exhausted.15 After the exhaustion of the 100,000 SDR initial tier of damages, a carrier may plead and prove that it is not responsible for any further damages due to the fact that the accident at issue was caused by the negligence of a third party. 16
All of the above is a significant departure from the 125,000 gold francs (approximately US$10,000) limitation placed on damages under the Warsaw Convention.
In conclusion, just as the technology in the field of international aviation has changed from internal combustion propeller- driven engines to jet, and possibly some day soon scram-jet engines, so too the law which governs international aviation has changed. Like technology, the Montreal Convention does not necessarily make everyone’s life easier; but like technology, the Montreal Convention is here to stay.
1 2 3 Ehrlich v. Am. Airlines, Inc., 360 F.3d 366 (2d Cir. 2004). Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301, 306 (2d Cir. 2000), cert. denied, 533 U.S. 928, 121 S. Ct. 2549 (2001). Formally known as the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal May 28, 1999. See, e.g., Paradis v. Ghana Airways, 348 F. Supp. 2d 106 (S.D.N.Y. 2004). See, generally, In re Air Crash Disaster Near Peggy’s Cove, MDL No. 1269, 2002 U.S. Dist. LEXIS 3308 (E.D. Pa. Feb. 27, 2002). Formally known as the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929. See, J.C. Batra, Modernization of the Warsaw System-Montreal 1999, 65 J. Air L. & Comm. 429. Ehrlich v. American Airlines, Inc., 360 F.3d 366, 371 (2d Cir. 2004) (certain citations and attributions omitted). See, e.g., Hosaka v. United Airlines, 305 F.3d 989 (9th Cir. 2002). See generally, Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301 (2d Cir. 2000), cert. denied, 533 U.S. 928, 121 S. Ct. 2549 (2001); see also, www.state.gov/e/eb/rls/rm/2003, John R. Byerly, Deputy Assistant Secretary for Transportation 4 5 6 7 8 9 10
Affairs, Testimony Before the Senate Foreign Relations Committee, See, e.g., Ehrlich v. American Airlines, Inc., 360 F.3d 366 (2d Cir. 2004). Washington, D.C., 17, 2003. June 11 12 See, e.g., Hosaka v. United Airlines, 305 F.3d 989 (9th Cir. 2002), in which the Court is compelled to grapple with a