Asiana Airlines Flight OZ214 and the Montreal Convention

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August 23, 2013

When an international flight is involved in a crash, a multinational treaty known as the Montreal Convention addresses and determines various issues relative to airline obligations and passenger rights and compensation. The treaty only applies to air carriers, not aircraft and parts manufacturers, the federal government or airport personnel, i.e. other entities who may have been responsible for the July 6th Asiana Flight OZ214 disaster at San Francisco International Airport.

The Montreal Convention is named for the city in Canada in which it was drafted in 1999. It replaces the Warsaw Convention of 1929 which previously governed international aviation law. The three countries with the most direct ties to the Asiana crash, the United States, Korea and China, are all signatories to the treaty and are therefore bound by it.

Montreal ConventionThe Montreal Convention limits the place where international aviation disaster cases against the airline may be litigated to:

1. The passenger's residence;
2. The final destination of the passenger;
3. The country in which the ticket was sold or purchased;
4. The country where the airline is based; and
5. The country where the airline is incorporated.

The 64 passengers on Flight 217 who are United States citizens will clearly be entitled to file suit against Asiana Airlines in the U.S. However, the 141 Chinese and 77 South Korean passengers, as well as the 9 passengers from various other non-U.S. countries, present a more complex situation with regard to whether Asiana, a South Korean company, can be sued by them in the U.S. These are issues which will be litigated and decided in the courts. The itinerary of each passenger will be examined as part of the effort to determine where that passenger might be allowed to file suit against Asiana Airlines. However, because the Montreal Convention does not cover any company other than the airline everyone, including Chinese, Korean and other non-U.S. resident passengers, will be permitted to file their claims against potential defendants such as The Boeing Company (the U.S. corporation that designed and manufactured the 777 model aircraft), various equipment and parts manufacturers, the Federal Government, entities who owned and maintained the electronic approach and landing equipment at the airport, the owner of SFO, airport personnel, and rescue/fire department personnel.

Under the terms of the Convention, passengers are entitled to monetary damages against the airline for death and injuries currently in an amount up to about $170,159.63 U.S. under a system the Montreal Convention uses known as Special Drawing Rights or "SDRs". (SDRs are a mix of currency values established by the International Monetary Fund. By tying the value of damages to SDR units, the available damages rise with inflation, values which fluctuate daily.) But, this limit is actually not relevant in this case because the negligent conduct of the airline pilots removes the damages cap.

This means that with respect to Flight OZ214, Asiana Airlines is strictly liable to its passengers up to the current SDR amount of about $170,159.63. Therefore, it would have no defense to provable claims up to that amount, but could seek reimbursement from other entities found to be liable. However, the airline will be liable for further damages beyond the stated limit unless it can prove that the crash was not caused by its own negligence or was caused solely by a third party's fault, such as that of a manufacturer. The facts in this case point to negligence on the part of the Asiana flight crew. Therefore, the Montreal Convention limit on passenger damages relative to Asiana, will not limit any injured passenger's right of compensation.

The Montreal Convention is the successor to the Warsaw Convention, a treaty adopted in the early days of aviation when the international community wanted to protect the fledgling industry from damages awards so large as to put the airline out of business. That day is long gone. Airlines like Asiana, carry more than two billion dollars worth of liability insurance, and are themselves multi-billion dollar companies.

The effect, modernly, of the Montreal Convention is primarily to limit a passenger's ability to be treated equally and fairly in the event of an airline disaster such as the crash of Flight OZ214. There is no rational reason to say that a passenger, for instance, in seat 34A should have different rights than one in 34B, simply because they live in a different country, or are on a different flight itinerary, or bought their ticket in a different place. Justice and equity demand that all passengers be treated equally. A person does not suddenly become less valuable simply because that person lives in Seoul or Beijing rather than San Francisco; all people, wherever they reside, suffer equally from the same injury, as all human bodies react similarly to the same trauma.

One of the worst discriminatory affects of the convention is to require that those who suffer serious mental or emotional harm, such as Post Traumatic Stress Disorder ("PTSD"), cannot recover for the debilitating, and sometimes life altering, affects of this serious injury unless they can prove that the injury "arose out of" some bodily injury. PTSD, according to the archaic thinking of the convention drafters, is not a physical injury. Science knows better, but politicians influenced by the aviation and airline lobbyists have decided otherwise when drafting and adopting the Montreal Convention. The mind set of most of those responsible for the language of the convention think in terms of the law of contracts rather than the human cost resulting from aviation catastrophes.

The special protection provided to airlines by the Montreal Convention needs to be changed so that the discriminatory affect on passenger rights is eliminated. The lawyers at Baum Hedlund Aristei & Goldman are dedicated to bringing about this kind of necessary change. The economic cost, both in terms of lost income and suffering, needs to be the centerpiece of the treaty, not arcane considerations found in the law of contracts.

By Ronald L. M. Goldman Google+

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