According to the United States Department of Commerce National Travel and Tourism Office, in 2017 almost 75 million Americans traveled abroad. More than half of these trips were to countries in North America, Mexico and Canada.
While the overwhelming majority of these trips occur without any problem, sometimes passengers are injured or even killed in plane crashes, incidents that occur during the flight or accidents that occur while boarding or disembarking the plane. In these circumstances, a passenger’s rights are governed by the Montreal Convention, an international treaty signed by most of the countries of the world in 1999.
The Law Office of Richard Schechter has recently filed a case on behalf of a family from the Houston area that was injured in the Aeroméxico Connect plane crash on July 31, 2018, while en route from Durango, Mexico to Mexico City.
The Montreal Convention
The Montreal Convention provides a totally different set of legal remedies than those encountered in most personal injury or wrongful death actions in the United States. For that reason, it is important that you and your lawyer understand the nuance of the Montreal Convention.
This crash and the rights of the family we represent in the Aeroméxico crash are governed by the Montreal Convention because they were injured during an international round-trip from Houston to Durango through Mexico City and back again. This is true even though the crash occurred on a leg of the flight within Mexico, because it was one of the legs of an international trip.
The Montreal Convention applies if you are flying on an international trip that involves many stops
For example, in March 2015 Germanwings Flight No. 9525 crashed in the French Alps, killing six crew members and 144 passengers. Two of the passengers killed in the crash were scheduled to travel from Washington Dulles Airport in Virginia to Munich, Germany on United, and then days later from Munich to Barcelona, Spain on Lufthansa. After vacationing in Barcelona, they were then scheduled to travel to Diisseldorf, Germany on Germanwings, which is the leg of their trip during which the crash occurred. The Court held the Montreal Convention governed the rights of the families of the passengers who died in this crash.
The Montreal Convention applies to all types of injuries sustained on an international flight, not just plane crashes
For example, if you are injured when a passenger’s luggage falls from the overhead bin, your claim falls under the Montreal Convention, just as if you are injured as a result of a fall either boarding the plane or disembarking. Lawsuits involving passengers injured due to a slippery ramp while disembarking, food poisoning or failure to provide proper medical care on the plane are all covered by the Montreal Convention.
The Montreal Convention and Compensation
The Montreal Convention establishes a scheme for compensating those who are injured on an international flight or the loved ones of passengers who die on an international flight. To prevail on a claim for damages a plaintiff must prove that:
- there was an “accident,” defined as “an unexpected or unusual event or happening that is external to the passenger”;
- the accident happened either “on board the aircraft” or during “the operations of embarking or disembarking”; and
- the accident caused “death or bodily injury of a passenger.” The Convention thus imposes strict liability for injuries up to 100,000 SDRs per passenger, with a decennial adjustment for inflation. The current amount is approximately $160,000 per passenger. This amount can be reduced by any percentage of fault attributable to the passenger.
The airline is also liable for damages over the amount of $160,000 unless the airline can prove that the passenger’s injury was not its fault or that the injury was due solely to the fault of a third party. This means the burden of proving who caused the injuries falls on the airline as opposed to the passenger. This is an important difference between the common law in the United States and a case involving the injury or death of a passenger on an international flight.
Aeroméxico Plane Crash Victims
In the case of the family we represent in the plane crash in Mexico, this means they each may recover up to $160,000 without having to prove the airline was at fault. Their damages, in our opinion, far exceed that amount of money. To recover the full extent of the damages we need only defeat the airline’s claim that the crash was not their fault or that it was the fault of a third party.
As with liability, the law governing the type of damages a passenger injured in an accident on an international flight may claim is slightly different than that available in your typical personal injury case. While you have the right to recover past lost wages as well as future loss of earning capacity and all medical costs, both past and future, your right to recover mental anguish is limited.
The law is unclear in this area, which is why it is important to retain someone familiar with the nuances of the Montreal Convention if you are injured on an international flight. What is clear is that a passenger may not recover for mental anguish in the absence of a physical injury. Thus, if you are involved in a crash and have only mental anguish or post-traumatic stress disorder without any physical injuries, you are not entitled to a recovery. You must report physical injuries to be able to recover for mental anguish.
Montreal Convention: Mental Anguish & Physical Injuries
The issue under the Montreal Convention is whether the mental anguish you suffer must be as a result of the physical injury. The courts are split on this issue. Some courts have held that a passenger may only recover for mental anguish arising from their physical injuries. Others have held passengers may recover for mental anguish unrelated to their physical injuries (i.e. post-traumatic stress disorder) but must suffer some type of physical injury in order to make this recovery.
Montreal Convention Attorney
Because the Montreal Convention and the interpretations of its provisions are unique in American law, if you are injured on an international flight or either boarding or disembarking from that flight, it is important to retain a lawyer who has handled cases under the Montreal Convention and is familiar with the potential traps facing passengers injured on international flights or the families of those whose loved ones are killed on those flights.