Understanding Your Rights as an Injured Canadian Passenger
To say aviation law is complex is an understatement.
When any airline accident occurs, there are a wide variety of factors that will have a bearing on your ability to seek compensation. Adding an international travel component to this equation complicates matters further.
If you or a loved one is seriously injured or killed during air travel, you likely have many questions and very few answers. An experienced aviation accident lawyer can offer trusted advice and help answer many of these questions as you seek justice to the harm done to you.
In this second part of our series on international airplane accident injuries, I explain why it is in your best interest to consult a personal injury lawyer who has the knowledge and practice experience in this field of law to ensure you can make informed decisions to protect your right to compensation.
How to Choose the Right Airplane Accident Lawyer
If you are searching for legal advice following a life-altering injury from an airplane accident, you may opt to speak to lawyers or firms offering no cost, no obligation initial consultations.
These free discussions are not only an excellent way to become better informed about the legal implications of pursuing a personal injury claim, but also an opportunity to get a sense of whether the lawyer you speak with would be an effective representative for you in future proceedings.
Effective representatives generally have two qualities: the ability to communicate in a clear, understandable, and empathetic manner, and the ability to demonstrate their familiarity, competence, and insight into the applicable law.
When it comes to international aviation law, this means distilling complex legal knowledge in a manner that potential clients can digest without oversimplifying the comprehensive analysis needed to effectively build a case.
For Canadians injured in airplane accidents abroad, an effective aviation accident lawyer should be able to explain:
- What law(s) are likely to be applicable?
- Why the choice of jurisdiction used to advance a claim can be significant?
Case-specific facts matter greatly in answering these questions, but in the sections below, I summarize some important factors that a lawyer will need to address.
Which Laws Apply to International Airplane Accident Claims?
Canada, like more than 140 other countries and territories, is a signatory to the Convention for the Unification of Certain Rules for International Carriage by Air (more commonly known as the Montreal Convention).
This international treaty requires airlines operating routes between member countries to abide by the Convention’s rules and procedures for handling personal injury claims. Under the treaty’s exclusivity principle, if an accident-causing injury is covered by the Convention, you cannot opt to choose to advance a claim using legal procedures outside of those defined by the Convention. However, as I discuss in the next section, statutory laws and case law precedents within member countries’ legal systems can have an influence on how the Convention’s provisions apply.
The Montreal Convention, which succeeded the earlier Warsaw Convention, was designed to ensure “fairer compensation and greater protection” to injured passengers by making airlines strictly liable for damages caused by an accident (an unexpected or unusual event or happening external to the passenger) up to a certain threshold. This means a carrier is liable for damages due to bodily injuries or death fatalities airplane accidents even if the accident was not the result of the carrier’s fault, intent, or negligence.
The air carrier may also be liable beyond this threshold if it fails to prove the damage was not caused by its own wrongful or negligent actions/inaction. Unlike most personal injury tort where the onus is own a plaintiff to prove their claims, the Convention established a reverse onus in which the airline is considered liable unless proven otherwise.
Strict liability to the threshold and reverse onus liability beyond the threshold are both generally beneficial for passengers. But, determining if the Montreal Convention is applicable to a Canadian passenger’s personal injury claim is not as straight forward as it may sound.
For example, injuries caused by an airplane accident that occurred on flights departing from a signatory country and destined for a non-signatory country, would not necessarily be covered by the Convention. However, if a passenger was flying on a round-trip ticket, it would be. A round-trip ticketed trip is considered a single indivisible “international carriage” because the signatory country is both the point of departure and final destination of an international journey.
Conversely, if an accident occurring during a purely domestic flight within a signatory country was planned as one leg of a larger journey to another signatory country, the Convention would only apply if the passenger’s ticket on the domestic flight was included as part of a complete ticketed travel itinerary that explicitly started and ended in two different signatory countries.
If this sounds confusing, it’s because it is. An experienced international aviation lawyer will understand how to determine a flight’s status according to law and what the applicable law provides as remedies for the injured passenger.
If the Montreal Convention does not apply, some international flights between signatory and non-signatory countries may still fall under the provisions of the older Warsaw Convention. Otherwise, in situations where neither the country of departure nor destination is a signatory to these treaties, local and national laws would apply. Airlines could, therefore, implement restrictions or limits on compensation in accordance with these laws, and an injured person may need to prove their injury was caused by another entity’s wrongful or negligent act or omission in an attempt to be compensated for their losses.
How To Choose a Jurisdiction When Filing?
Determining which laws apply is not the only reason jurisdiction matters. Whether your case is bound by the Montreal Convention or an individual state’s national or local laws, you may have the option to choose among more than one jurisdiction in which to file your claim.
The Montreal Convention has provisions which may allow passengers to file claims in courts located where tickets were purchased, the country in which an airline is incorporated or based, the place which house the airline’s headquarters or principal place of business, or the ticket’s final destination. Additionally, claims related to bodily injury of death can be heard by courts in the passenger’s country of principal and permanent residence under certain conditions.
While Montreal Convention establishes the rules and procedures for liability claims by which all member countries and territories are bound, the laws of the jurisdiction where an injured person files a claim for damages govern what types of damages can be claimed – including the quantum/amount of damages. One uniform exception is a provision that “punitive, exemplary or any other non-compensatory damages shall not be recoverable.”
Understanding the implications of local and national laws is significant when determining where to advance a claim. Beyond practical considerations unique to the passenger, certain legal traditions and conventions in some jurisdictions may contribute to greater potential awards or coverage of types of damages not available elsewhere. As a result, experienced aviation lawyers may consult with colleagues, partner with them, and/or refer clients to them to help injured passengers decide where it’s in their best interest to file.
A comprehensive knowledge of local and national laws can also be important if complications – such as post-accident limitations – arise.
For example, there are different challenging limitations Article 28 of the Montreal Convention mandates airlines, if required by its national law, to make advance payments to meet the immediate economic needs of persons entitled to claim compensation for injuries or fatalities caused by an accident.
These advance payments are purely designed to assist these persons as an interim measure, and do not constitute a recognition of liability. If the airline is required to pay additional damages to person receiving such payments, they may deduct these advances from subsequent funds.
Whether or not a passenger is entitled to advance payments under the Convention, if you are offered any money from an airline or an agent acting on its behalf on the condition that you sign documentation, it is strongly advisable to seek legal advice before accepting such an offer. While most airlines will be ethical when facilitating advance payments or offering other support following an airplane accident, some may use these offers to induce passengers to sign waivers designed to limit your right to seek additional compensation.
Challenging a signed waiver is difficult (but not necessarily impossible) depending on factors such as statutes and precedents. There are often significant differences in jurisdictions with common law compared to jurisdictions using civil law or codes, including standards of reasonable notice versus specific understanding of what rights are being waived.
Why Experience Matters in Airplane Accident Claims
Diving into international aviation law can often raise more questions than answers. Seriously injured passengers should not be expected to become experts in this field to make an informed decision of how to proceed. Instead, knowledgeable and experienced lawyers can provide a good explanation of your rights and the potential risks and benefits of pursuing a particular course of action to access compensation.
As someone who has extensive practice experience in this field of law, I would be honoured to help you in any way I can.
If you or a loved one has been seriously injured in an airplane accident abroad, please reach out for a free, no obligation initial consultation.
