Flightwatch

Volume 123 - August 2002

DISTRICT COURT DECLARES THAT FLIGHT BETWEEN COASTAL CITIES IN CALIFORNIA AND MEXICO WAS GOVERNED BY ADMIRALTY JURISDICTION – NOT THE WARSAW CONVENTION

Damages that may be recovered for the death of a loved one on an international flight have generally been limited to $75,000 under Article 22(1) of the Warsaw Convention of 1929, as amended by the Montreal Agreement of 1966. See 49 U.S.C. § 40105. Because of these limitations, a lawyer confronted with an aircraft accident involving transportation between two coastal cities may wish to avoid application of the Warsaw Convention. [A brief overview of the Warsaw Convention appears in Volume 109 of Flightwatch published in June of 2001, which is posted at www.alanarmstronglaw.com.]

The underlying case involved a passenger jet that departed Puerto Vallarta, Mexico for a coastal city in California. The aircraft crashed in the navigable waters of the United States. Survivors filed suit against the airline claiming that damages would be governed not by the Warsaw Convention, but by admiralty jurisdiction. The United States District Court for the Northern District of California reasoned that in order for admiralty jurisdiction to apply, (1) the alleged wrong must take place on or over navigable waters, and (2) the wrong must bear a significant relationship to traditional maritime activity. With regard to the second element of this two prong test, the Court found that the primary mode of travel between these coastal cities was via aircraft. Although transportation was possible by way of road or rail, aviation was the main route of travel. Further, the evidence revealed that the main mode of travel between these cities before the advent of the airplane was by ship. Based upon these proofs, the District Court found that the Plaintiffs would not be limited to damages allowed under the Warsaw Convention. Rather, the Plaintiffs could recover for the wrongful deaths of their loved ones as well as damages for pre-impact pain and suffering and also the loss of future wages.

In Re: Air Crash Off Point Mugu, California, on January 30, 2000, ____ F.Supp.2d ____, No. MDL-00-1343-CAL, 2001WL619427 (N.D.Cal. May 1, 2001).

STATE LAW CLAIM OF PASSENGER INJURED BY LUGGAGE WAS NOT PREEMPTED BY THE AIRLINE DEREGULATION ACT

Several years ago, the Airline Deregulation Act (ADA, 49 U.S.C. § 1305(a)(1)) was enacted with a preemption clause that forbids states from enacting laws or regulations “relating to rates, routes, or services of any air carrier.” Since the enactment of ADA, the airlines have repeatedly attempted to use ADA as a basis for defeating state law (common law) claims of passengers injured as a consequence of baggage falling from overhead compartments. This was such a case.

The plaintiff claimed that she was injured when baggage fell from an overhead compartment and hit her head. She claimed the airline was negligent in stowing the baggage. She further claimed that the airline was negligent and breached its duty as a common carrier under a state civil code. The trial court granted the airline summary judgment reasoning that the preemption clause in the ADA precluded a cause of action grounded in state (California) law. The California Court of Appeals reversed the trial court noting the following: (1) that federal law requires airlines to carry insurance for damages due to bodily injury or property damage, and (2) there is no federal remedy for persons injured by aircraft operations. Based upon these findings, the California Court of Appeals reversed the trial court reasoning that the Airline Deregulation Act did not preempt a state cause of action for negligence where the plaintiff claimed the airline was negligent in the storing of luggage in an overhead bin.

Vinnick v. Delta Airlines, Inc., 113 Cal. Rptr. 2d 471 (Ct. App. 2001).

IN ORDER FOR TURBULENCE TO BE THE CAUSE OF AN ACCIDENT UNDER THE WARSAW CONVENTION, THE TURBULENCE MUST HAVE BEEN SEVERE OR EXTREME

As related above in this issue of Flightwatch, the Warsaw Convention applies with respect to injuries or deaths that occur in international air transportation. 49 U.S.C. § 40105. Article 17 of the Convention will allow a passenger injured as a consequence of an “accident” on board the aircraft to be compensated providing the accident took place “on board the aircraft or in the course of any operations of embarking or disembarking.”

In the case under consideration, the passenger was on an international flight and bumped his head while walking from the bathroom to his seat. The passenger claimed that he had been injured by an “accident” as defined by the Warsaw Convention.

The airline argued that there are four categories of turbulence, to wit: (1) light [where the passengers may feel a slight strain on his or her seatbelt and unsecured objects may be displaced, but there is little difficulty in walking]; (2) moderate [where passengers feel strains against their seatbelts and walking is difficult]; (3) severe [where the aircraft undergoes abrupt changes in altitude and which may cause the aircraft to be momentarily out of control]; and (4) extreme [where the aircraft is tossed about violently and is practically impossible to control]. Because the passenger testified that he was walking from the lavatory to his seat, the court reasoned that the turbulence must have been either light or moderate. Had the turbulence been severe or extreme, it would have been impossible for the passenger to walk from the lavatory to his seat. The court further reasoned that light or moderate turbulence is to be anticipated in air travel and, therefore, cannot constitute an “accident” under the Warsaw Convention. Accordingly, the airline was granted summary judgment against the claims brought by the passenger for personal injuries.

Magan v. Lufthansa German Airlines, 181 F. Supp. 2d 396 (S.D.N.Y. 2002).

Alan Armstrong is engaged in the general practice of law with an emphasis on the following areas:
Aviation Matters, Personal Injury, Professional Negligence (Malpractice), and Products Liability
© 2002, Alan Armstrong. All rights reserved. Phone: (770) 451-0313. Fax: (770) 451-0317
Email: alanarmstrong@mindspring.com

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