Aviation Law ' September 2022

• Published date: 20 September 2022
• Subject Matter: Litigation, Mediation & Arbitration, Transport, Aviation, Personal Injury, Professional Negligence
• Law Firm: Morrison Mahoney LLP
• Author: Mr Tory A. Weigand and Noel B. Dumas

MONTREAL CONVENTION'GUANTANAMO BAY/ARTICLE 57 AND PREEMPTION

Petteway v. Miami Air International Airport, Inc. 2022 WL 4076577.D. Fla. 2022)

Consolidated action by passengers as to a flight in May 2019 from the Naval Station at Guantanamo Bay Cuba to the Naval Air Station in Jacksonville Florida. When the aircraft attempted to land in Jacksonville it veered off the runway and crashed into rock wall and landing in a nearby river. The claimant passengers asserted bodily jury, pain and suffering and mental anguish. The novel issue presented was whether the Montreal Convention or state law controlled which turned on whether the flight constituted a "domestic flight" or "international carriage" under the Convention given the unique status of Guantanamo Bay.

The Court held that the Convention applied to the flight.

The Court analyzed the issue by stating that Article 1(2)'s definition of "international carriage" focuses on the locations of the places of departure and arrival, requiring that such places be "situated" "within" the territories of the State Parties. Guantanamo Bay is situated within the country of Cuba, a State Party. The United States does not own Guantanamo Bay; rather, it leases the land comprising Guantanamo Bay from Cuba for its "coaling and naval stations." The Court confirmed that the United States' operation of a military base in a foreign country generally does not render that land a territory of the United States and that, as such, under the plain understanding of the word "territory" in the Convention, Guantanamo Bay is not a part of the United States.

Under Article 57(a) of the Convention, a State Party may reserve from the Convention any international air carriage performed directly by the State Party for non-commercial purposes. Pursuant to Article 57(b), a State Party may also reserve any chartered international air carriage leased by that State Party for its military authorities. Accordingly, a State Party can exempt from the Convention international flights performed by the State Party or privately chartered flights for its military. The United States reserved the first exception, but not the second.

The claimant passenger argued that the flight operated as a "common carrier for hire engaged in the transportation of charter airline passengers in both domestic and international air travel," which Miami Air dispatched and thus did not constitute transportation conducted by the United States in its official capacity, and therefore, is not exempt under Article 57 from the Montreal Convention. It was noted that the flight could have potentially qualified as a chartered flight leased by the United States for its military (although more information would be needed for that determination); but it was not material as the United States chose not to exempt such flights from the Convention. Accordingly, it was held that the flight remained within the Convention's ambit under a plain reading of the text as a commercial flight from one United States' military base in Cuba to another in the United States.

While the Court noted the numerous historical facts about Guantanamo Bay that make it unique, it nonetheless held that even under the descriptions of "territory" in the Warsaw Convention and The Hague Protocol, Guantanamo Bay still constituted a territory of Cuba, not the United States. It also found that the holding that the Convention applied to the flight was consistent with the uniformity goals underlying the Convention. To accomplish this uniformity, Article 57 limits the reservations available to State Parties to only two circumstances of international carriage and expressly precludes State Parties from making other exceptions. One of those reservations'for flights commercially chartered by the military'might well have applied to the flight but the United States did not choose that reservation. Further, the Convention's use of the word "territory" without further elaboration (including not incorporating the prior definitions in the Warsaw Convention and The Hague Protocol) indicates the intention to ascribe the simplest meaning possible. Guantanamo Bay is situated within Cuba. The United States holds rights to occupy it as a tenant. Although the history of Guantanamo Bay demonstrates a complex and fraught landlord-tenant relationship, the Lease Agreement between the countries and related case law make clear that Cuba still owns and retains sovereignty over Guantanamo Bay. Accordingly, it was held that under the Convention Guantanamo Bay is a territory of Cuba, which made the flight "international carriage" subject to the Convention.

On the issue of preemption, the Court confirmed that pursuant to Article 29, the Convention was the exclusive mechanism of recovery for personal injuries suffered on board an aircraft or in the course of embarking or disembarking from an airplane. As such, "[f]or all air transportation to which the Montreal Convention applies, if an action for damages falls within one of the treaty's damage provisions, then the treaty provides the sole cause of action under which a claimant may seek redress for [his or her] injuries." Preemption applied and any recovery was limited to the terms of the Convention and not state law.

MONTREAL CONVENTION-TURBULANCE, ARTICLE 17, & LIMITATION OF LIABILITY

Furuta v. Hawaiian Airline Inc., 2022 WL 3645764 (D. Hawaii 2022)

Passenger brought action under the Montreal Convention for alleged injuries sustained in flight from Japan to Hawaii alleging that the airline was negligent in its failure to avoid the turbulence that caused the injuries. The facts before the Court on the airline's motion for summary judgment included that the plaintiff passenger was returning to his seat after using the restroom and when the fasten seatbelt sign illuminated; when at his seat he tried to fasten his seatbelt but failed to so; that the turbulence lifted the plaintiff-passenger out of his seat and caused him to hit the ceiling of the plane; five other passengers were "affected" by the turbulence and suffered injuries; and the plane itself suffered damage from the incident.

Airline asserted passenger had no right to recover under Article 17 contending: (1) that turbulence preceded by a warning to the passengers to fasten their seatbelts is not "unusual or unexpected"; (2) that Plaintiff's injuries could only be attributed to his internal reaction ' his failure to fasten his seatbelt ' rather than any external event; and (3) that even if an accident occurred, it did not cause Plaintiff's injuries.

The Court held it was a matter for a jury/factfinder to determine whether the airline was liable under Article 17.

The Court rejected the contention that "there is nothing objectively unusual or unexpected about turbulence that is preceded by a warning" and that the airline failed to prove as a matter of law that the turbulence that occurred on the flight in question was not unusual or unexpected as a reasonable factfinder could conclude that the turbulence was unusually strong or unexpected. It noted the paucity of case law addressing turbulence and Article 17 but that the consensus was that turbulence was not exempt from the definition of accident under the Convention and that it is usually a question of fact whether the turbulence the flight experienced was unexpected or unusual particularly here given that the passenger-plaintiff was ejected from his seat and then fell to the floor during the turbulence suggesting a degree of turbulence greater than that experienced during most flights; some of the flight attendants onboard characterized the turbulence as "severe" in their incident reports; and the...