Emotional Harm Damages For Personal Injury Claims Under The Montreal Convention

When an aircraft full of passengers during an international flight encounters an unexpected event, such as severe turbulence, an emergency evacuation, or a crash landing, the injuries may run the gamut. Some passengers may sustain no physical injuries at all while others may sustain severe physical injuries. The question then becomes: what damages can these passengers recover?

The Convention for the Unification for Certain Rules for International Carriage by Air, commonly known as the Montreal Convention, will govern any claims for bodily injury as long as the international travel was between two countries that are signatories to this international treaty. The purpose of this Convention is to create uniformity around the world in the compensation of passengers for claims arising out of international air travel.

Given the variety of claims that may arise in an incident on board an aircraft, American jurisprudence has interpreted the Montreal Convention, and its predecessor treaty the Warsaw Convention, to contain certain threshold requirements for the recovery of damages. For example, in Eastern Airlines v. Floyd, 499 U.S. 530 (1991), the United States Supreme Court determined that passengers who do not sustain a bodily injury in the accident cannot recover any damages whatsoever. This means that any passengers who are involved in a frightening event on an aircraft, such as a crash landing, but walk away from the aircraft uninjured can receive no compensation whatsoever. This is true even though the passenger has a claim for emotional harm, such as anxiety or post-traumatic stress disorder (PTSD).

In Floyd, the United States Supreme Court left a critical question unanswered – if a passenger sustains a bodily injury, can they recover damages for emotional harm? Federal courts across the United States have considered this issue. In the often-cited opinion of Jack v. TWA, 854 F. Supp. 654 (N.D. Cal. 1994), a district court in California held that a plaintiff may only recover damages for emotional harm under the Warsaw Convention if caused by bodily injury. In reaching this conclusion, the district court rejected an approach that would allow a party to recover for emotional harm as long as the party sustained a bodily injury because this approach would lead to great inequities among passengers. Using such an approach, if one passenger was scratched on the way down the evacuation slide, that passenger would be entitled to damages for emotional...