RECENT aircraft accidents have drawn attention to the legal framework governing airline liability. Although air travel remains the safest mode of transportation, as we’ve seen recently, accidents do occur.

Our firm specialises in representing airlines and their insurers in claims arising from air incidents, whether through negotiation or litigation. One of the key areas of law in these cases is private international air law — a specialised field that often warrants adjudication by a commercial division judge.

Mid-air and tarmac collisions are perhaps the most obvious examples of accidents in international air travel. However, not all unfortunate incidents which happen in air travel are accidents which render the airline liable.

This article examines critical legal questions related to airline liability for international air accidents.

What law governs air accidents?

The Montreal Convention (1999), incorporated into Jamaican law by the Carriage by Air (Montreal Convention) Act, 2009 (the “Act”), governs claims related to international air accidents. The convention modernised the Warsaw Convention, to which Jamaica is also a signatory.

When does international carriage begin?

An airline’s liability applies only during “international carriage”, defined as travel between two signatory countries. For example, if a passenger travels round-trip from the United States to Jamaica, the convention applies since both countries are signatories.

The ticket issued to the passenger incorporates the carrier’s conditions of carriage and the convention, by reference.

International carriage begins once the passenger has successfully completed check-in procedures.

Cause of action against airlines

Under Section 3 of the Act, the convention has the force of law in Jamaica; it provides an exclusive cause of action for claims arising from international carriage. This means claimants cannot sue airlines for common law negligence or breach of contract outside the convention’s framework, even if they are left without a remedy.

Where to sue?

A lawsuit against an airline must be filed in one of the following jurisdictions:

• The carrier’s domicile

• The airline’s principal place of business

• The location where the contract of carriage was made

• The place of destination

• The passenger’s permanent residence if the airline operates services there.

When is the airline liable for passenger injuries?

The convention imposes liability when a passenger suffers:

1) Bodily injury

2) Due to an accident

3) That occurred on-board the aircraft or during embarking/disembarking.

Types of recoverable injuries

Airlines are liable only for bodily injuries sustained due to an accident. Psychological injuries such as PTSD, stress, or anxiety are not compensable unless accompanied by a physical injury.

For example, in Kerrikay Cameron v Caribbean Airlines Limited [2020] JMCC COMM 2, the only local case on this point, we successfully argued for Caribbean Airlines, in the Jamaican Supreme Court, that claims for false imprisonment, breach of contract, and emotional distress were unsustainable under Article 17, as there was no bodily injury.

What constitutes an “accident”?

An accident is defined by case law as an unexpected or unusual event external to the passenger. It does not include injuries caused by the passenger’s own internal reaction to the normal operation of the aircraft.

Examples of accidents for which airlines may be liable:

• Hijacking or terrorist incidents

• A passenger slipping on wet stairs while boarding

• A flight attendant spilling hot coffee on a passenger

• Crew serving alcohol to an already intoxicated, aggressive passenger.

Incidents that do not qualify as accidents:

• A passenger developing deafness due to normal pressurisation changes

• Tripping over luggage left in the aisle

• A false accusation of drug use leading to arrest post-flight

• A fight between passengers.

In the leading Jamaican Supreme Court case of Fern Oddman v Delta Airlines [2019] JMCC Comm 29, we defended Delta Airlines against a passenger’s claim of injury after slipping on stairs at Norman Manley International Airport. The court ruled in Delta’s favor, finding no unusual or unexpected external event — the staircase was normal, and no defect caused the fall.

Embarking and disembarking: When is the airline liable?

The airline is only liable under Article 17 of the convention if the accident took place on-board the aircraft or in the course of any of the operations of embarking and disembarking.

Determining whether a passenger was embarking or disembarking is fact-specific, and regard must be given to the different layouts of airports. The determination depends on factors such as:

• The passenger’s activity at the time of injury

• Restrictions on movement

• Imminence of boarding

• Proximity to the aircraft gate.

For instance, in Fern Oddman v Delta Airlines the claimant was held to be in the process of embarking since she was descending the stairs at Norman Manley International Airport in order to make her way to the boarding gate of the aircraft, her flight having been called — but this was still not within the scope of an airline accident under the convention.

Baggage liability

Under Article 17 of the convention, airlines are liable for checked baggage if damage occurs on-board or while the baggage is in the airline’s charge. However, they are not liable for damages due to:

• Inherent defects in the baggage

• Passenger negligence.

For unchecked baggage (carry-ons and personal items), airlines are liable only if the damage resulted from their fault or that of their employees.

Delays and airline liability

Under Article 19 of the convention airlines may be liable for damage caused by delays in passenger transport, unless they can prove they took all reasonable measures to prevent the delay. However, damages are capped, and airlines are not liable for extraordinary circumstances beyond their control such as air traffic control restrictions, weather conditions, or security risks.

Limitation period for claims

Under Article 35 of the Montreal Convention, a claim for damages must be brought within two years from the date of arrival at the destination, the date on which the aircraft should have arrived, or the date on which the carriage stopped. This period is strictly enforced, and claims made after the expiration of this period are barred, leaving claimants without legal recourse.

Limits on airline liability

If Article 17 of the convention applies, liability for passenger injuries is capped at 100,000 IMF Special Drawing Rights — approximately US$130,000.

Punitive, exemplary, and non-compensatory damages are not recoverable under Article 29 of the convention. This was reaffirmed in Kerrikay Cameron wherein the passengers’ claims for aggravated damages were dismissed.

Defenses available to airlines

•No “accident” occurred – If the event was not unexpected or unusual, the convention does not apply.

•No “bodily injury” – Emotional distress claims without physical harm are barred.

•Contributory negligence – Article 20 wholly or partially exonerates airlines if the passenger’s own negligence contributed to their injury.

•Acts of third parties – If the injury was caused by another passenger or a third party, the airline may not be liable.

Conclusion

The Montreal Convention provides a structured legal framework for air accident claims, limiting airline liability and defining clear criteria for recoverable damages. Successful claims require proof of bodily injury caused by an accident that occurred on-board or during embarking/disembarking.

Our firm continues to defend airlines against claims that fall outside the scope of the convention, ensuring that liability is assessed fairly and within the boundaries of international air law.

Amanda Montague is a partner in the Litigation Department at Myers, Fletcher & Gordon. She has extensive experience in aviation law, including private international air law, and has successfully represented major airlines in complex litigation arising from air accidents and other aviation-related claims. Her expertise includes defending air carriers in liability disputes, advising insurers on policy coverage, and navigating the intricate framework of international air law. Amanda is well-versed in the Montreal Convention and frequently appears before the Jamaican court in aviation-related matters.

She may be contacted at amanda.montague@mfg.com.jm or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.