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Field, Andrew --- "International air carriage, the Montreal convention and the injuries for which there is no compensation" [2006] CanterLawRw 8; (2006) 12 Canterbury Law Review 237


Andrew Field[*]

The New Zealand government, by adopting the 1999 Convention for the Unification of Certain Rules for International Carriage by Air (the 'Montreal Convention'), incorporated into New Zealand law the most recent international code for coverage of claims arising between passengers or cargo owners and carriers involved in international carriage by air. In so doing they removed some protections which had shielded carriers against plaintiffs' claims which dated back to when air carriage was an infant industry in need of protection from suit. However, in a cruel irony, even while the new convention was coming into force, legal proceedings in other jurisdictions were demonstrating that in some areas it was as inadequate as its predecessor, the Warsaw Convention of 1929, in that it failed to provide a remedy for all injuries suffered during international air travel; an inadequacy born of a failure to replace the seventy year old prescription for claims arising from death or injury to passengers.

I. Introduction

On 4 November 2003, the Montreal Convention[1] came into force.[2] This treaty, which New Zealand signed in 2001 and incorporated into its Civil Aviation Act 1990 in 2002, is the most recent in a series of international treaties going back to the Warsaw Convention[3] 1929 dealing with the rights and liabilities of air carriers, their passengers and the shippers and consignees of cargo carried by such carriers. Although in terms of carriage of cargo, the Montreal Convention essentially replicates the law of the most recent versions of the Warsaw Convention, it represents a substantial increase in the rights of plaintiffs claiming damages for death or personal injuries in that it removes the caps which its predecessors applied to such claims. In New Zealand, this is of significance as claims for injuries suffered during international air carriage form a class of proceedings which are permitted to be brought under New Zealand's no fault compensation scheme, even if such compensation would also be allowed under the scheme.[4]

However, despite its recent development, a series of recent decisions from senior courts in other jurisdictions around the world have indicated that in relation to some claims for personal injuries, the Montreal Convention is still very much tied down by the language of its predecessors. Although dealing with claims under the Warsaw Convention, those decisions indicated that not only does the new Montreal Convention not cover what have been described as 'mental injuries', but it also does not cover injuries caused by Deep Vein Thrombosis, or 'DVT', a disease so closely associated with air travel that it is often referred to as 'economy class syndrome'.[5] In the common law jurisdictions in which these cases were decided, these decisions no doubt caused much consternation, if only because had the common law applied, a claim founded on negligence might have been successful. Conversely, in New Zealand, these decisions are important both for this reason, and also because they would very likely fall through the cracks in the no fault compensation scheme. These cases indicate that although the legislature in New Zealand has done its best by its population in adopting the Montreal Convention, it is still an international agreement subject to the limitations inherent in achieving compromise among a world of nations, and still has scope for improvement. It is also subject to a desire for international consistency in the interpretation of treaties, meaning that New Zealand's courts will take heed of what these foreign courts have said. Thus, until such improvement occurs in the text of the treaty, many injured air travelers will be without a remedy. Certainly in countries of the South Pacific - countries which are only reached via long haul air travel - such news is of some concern. And yet, it appears to be the prevailing state of the law.

In explaining this situation, this article sets out to do the following: Firstly, explain the development and application of the international regime covering carriage by air under the Warsaw Convention. Secondly, identify the key innovations introduced by the Montreal Convention. Thirdly, explain how the Montreal Convention has failed to reform the flaws in the Warsaw provisions relating to personal injuries. And finally, explain the decisions which highlight the restrictions of personal injuries claims under the Conventions.

II. New Zealand and the Warsaw Convention

New Zealand's era of international air travel commenced with the flight of Sir Charles Kingsford-Smith from Sydney, Australia to Christchurch in September 1928. However, almost from that moment the dangers associated with such travel were apparent - Kingford-Smith's instruments iced up during the flight and his aircraft almost crashed into the Tasman Sea.[6] In reflecting a recognition by many national governments of such dangers to life, limb and property inherent in air travel, the Warsaw Convention was formulated by the following year, to regulate the claims which could be made against carriers. This initial version of the Convention was ratified and incorporated into New Zealand law in July 1937.[7] To remedy certain initial oversights, and to update where necessary, many subsequent treaties amended the Convention. Those adopted by New Zealand and now included in the Civil Aviation Act include the Hague Protocol of 1955, the Guadalajara Convention of 1961 and the additional Protocols 1, 2 and 4 made at Montreal in 1975. However, at the same time, although amended versions of the convention were adopted by New Zealand and other signatories, the earlier and unamended versions were not repudiated.[8] This course of action was necessitated by reason of Article 1 of all versions of the Warsaw Convention which applies the treaty to 'international carriage', defined to mean carriage where the place of departure and the place of destination are either in the territory of the one 'High Contracting Party' with a stopping place in another state, or in the territories of two 'High Contracting Parties' to the convention. This has been held to mean the same version of the convention.[9]

The Compromise

The Warsaw Convention represented a compromise. On the one hand, it protected an infant industry of air carriers from the potential for crippling law suits which might arise from loss or damage to persons, baggage or cargo. Conversely, it restricted a carrier's contractual right to exclude its liability.

The Convention still protects carriers by limiting damages under Article 22. In the original text, for death or bodily injuries this was fixed at 125,000 francs, increased to 250,000 by the Hague Protocol, and finally modernized (and 'de-nationalized') by the Montreal Protocol No 2 which fixed the sum at 16,600 Special Drawing Rights or 'SDRs' (approximately NZ$40,000[10] ). With regard to baggage and cargo, the original sum of 250 francs per kilogram is now fixed by Montreal Protocol No 4 at 17 SDRs. For passengers and cargo owners, the potential for actual damage to exceed these sums is obvious. And yet, in most cases the limits will apply, with only a few exceptions. With regard to passengers and their baggage, they are as follows:

First, under Article 22, the carrier and passenger may agree to set a higher limit. This device is still apparent on many air tickets where a notice advises of a higher limit of US$75,000 applying for flights to, from or through the United States.[11]

Secondly, under Article 3, if no ticket is provided to the passenger, or the ticket does not include a notice advising of the applicability of the Convention, then the Article 22 limits shall not apply. And thirdly, under Article 25 the limit will not apply where the death or injury was caused intentionally or recklessly by the carrier (described in the original Warsaw Convention as 'willful misconduct' but amended in the Hague Protocol to the present concept).[12]

The liability limit for cargo can also be removed by special agreement under Article 22. However, although flaws in the air waybill including the lack of a 'Warsaw Notice', or harm caused intentionally or recklessly, will prevent the carrier relying on the liability limits under most versions of the Convention, these exceptions were removed by Montreal Protocol No 4, effectively giving the carrier the protection of these limits in all circumstances where this version of the Convention applies. And yet, as was recently determined in the New Zealand District Court in the case of Vinotica Ltd v Air New Zealand Ltd, there will still be many cases where both the value of the cargo and freight charges may still fall within that limit.[13] Thus, it is clear that in most cases the carrier will have the benefit of the limit on damages payable, to the detriment of passenger or shipper alike. However, in reflecting the compromise, carriers' rights are also limited. Most significantly, under Article 23, carriers are not permitted to exclude or limit their liability beyond those limits set by the Convention. In addition, once the claim against the carrier is established, the presumption of liability is carried by the carrier, upon whom it is incumbent to then present its defence.

Carrier's Liability

There are three principal claims which might be made against a carrier. Death and Injury are dealt with under Article 17, the wording of which has remained constant in all versions of the Warsaw Convention. It states:

The carrier is liable for the damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Provided this prescription is met, the carrier will be liable for proven damages up to the liability limit, except in where it can establish either under Article 20 that it has taken 'all necessary measures' to prevent the damage,[14] or under Article 21, that the passenger contributed to the death or injury.

With regard to claims for loss or damage to registered baggage and cargo, these were originally both dealt with under Article 18(1), which stated

The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage by air.

For such claims, the 'carriage by air' was defined to include the time during which the baggage or cargo was 'in the charge' of the carrier. Once again, the defences applicable to Article 17 applied to Article 18. However, Montreal Protocol No 4 removed cargo from this provision, introducing a new Article 18(2) in virtually identical terms, save only that it did not refer to baggage. The effect of this was to clearly identify that cargo was to be treated differently to baggage. This has already been made apparent in the above text by noting that the liability limit for damage caused will no longer be removed even in exceptional circumstances. However, it is further emphasized because Article 18(3) inserted by Montreal Protocol No 4 also provided a new series of defences. These include where the loss or damage is cause by inherent defect or vice, defective packing, an act of war, or an act of public authority carried out in connection with the entry, exit or transit of the cargo. Finally, the third claim provided for under the Warsaw Convention was for delay under Article 19, which states:

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo.

Case law has determined that where no dates are set down in the agreement between the parties, whether that be in the ticket or airway bill, that delay will be determined on the basis of what time frame is 'reasonable' in the circumstances of each case.[15] The Article 20 and 21 defences also apply to Article 19 claims, even in the case of delay of cargo carriage.

Time Limits and Exclusivity of the Convention

These are the relevant claims and defences set down in the Warsaw Convention. However, in addition there are certain time limits which can also threaten a claim. Firstly, under Article 26, are the time limits during which a written complaint had to be given to the carrier to advise of damage to baggage (7 days) or cargo (14 days). In the absence of such notice, no action can be brought, the sole exception being where there is fraud. Thus, noting that these provisions do not apply to 'loss' of the relevant goods, the importance of establishing loss where a claimant has neglected to give notice is immediately apparent. However, it is now established that 'loss' will only occur if it is readily apparent to the carrier. Thus, in Fothergill v Monarch Airlines the loss of goods from a damaged bag was held to be merely damage.[16] And in the The Stud v Trans International Airlines,[17] a racehorse who contracted pneumonia on a flight from Canada to New Zealand and subsequently died was at best damaged when he was taken off the aircraft. In addition, notice of complaint is also required for damage caused by delay within 21 days from the day the passenger, baggage or cargo arrived at the relevant destination.

Finally, in all cases a two year limitation period applies in which to bring claims under Article 29. Beyond this time, a claim will be extinguished. As the House of Lords determined in Sidhu v British Airways,[18] the effect of this is significant. In that case, two appellants sought to bring claims for injuries suffered when their British Airways flight landed in Kuwait one hour after the Iraqi invasion of 1990. However, whatever the merits of their claims, they failed to bring them within the two year limitation period. Instead, their Convention claim extinguished, they attempted to bring claims under the common law of negligence, on the basis that such claims under domestic law could continue to co-exist with the Convention. However, as Lord Hope said in his leading judgment:

The convention does not purport to deal with all matters relating to contracts of international carriage by air. But in those areas with which it deals - and the liability of the carrier is one of them - the code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law...
It was not designed to provide remedies against the carrier to enable all losses to be compensated. It was designed instead to define those situations in which compensation was to be available.[19]

Accordingly, Lord Hope determined that the claims could not stand, a decision which has since been endorsed by courts not only in New Zealand,[20] but also in Canada,[21] Australia[22] and the United States.[23] In these common law jurisdictions, claims in negligence for personal injuries have no place where international air travel is concerned. Of course, in New Zealand, such claims are already largely displaced by the no fault compensation scheme, which already prohibits claims for injuries where a claim might be made under the Injury Prevention, Rehabilitation, and Compensation Act 2001.[24] Proceedings can now only be brought for those claims for injuries which do not fall within the scope of the Act.[25] However, in this respect a crucial difference can be observed between the no fault scheme and the Warsaw Convention. Whereas the no fault scheme does not purport to 'cover the field', and still allows proceedings where the scheme allows no compensation, the Convention is not so generous, excluding the claims it does not allow.

III. The Montreal Convention

Although the Warsaw Convention has in many cases been superseded by the Montreal Convention, it is still a part of New Zealand law[26] and versions of it will still apply in many cases. Hence the initial importance of the preceding discussion. Indeed, even in the South Pacific, a number of different Warsaw regimes will apply. For example, air carriage between New Zealand and Australia will still be governed by Montreal Protocol No 4, because Australia has still not adopted the Montreal Convention.[27] Similarly, for carriage between New Zealand and Indonesia the original unamended Warsaw Convention will apply because this is the only version adopted by the latter country. Indeed, the unamended Warsaw Convention with some 151 parties[28] has been one of the most successful international treaties ever and will still be applicable in many cases. However, for carriage between the 71 states[29] which have adopted the Montreal Convention, the new regime applies. How different is it to the various Warsaw regimes?

Liability Limits

The most apparent changes relate to the liability limits for passenger travel. The liability limits for death or bodily injury have now been abolished, and replaced with a new two tier scheme. Under the first tier, set out in Article 21(1), the carrier cannot exclude or limit its liability for damages not exceeding 100,000 SDRs. This is a strict liability regime which applies irrespective of the carrier's fault once the claim is established under Article 17. In addition, under the second tier, set out in Article 21 (2), any damages beyond this sum may be recovered, but subject to the carrier being able to raise defences either that it was not negligent, or that the damage was solely due to the negligence or wrongful act of a third party. Thus is removed the protection once accorded to the 'infant' air industry. This was the key reform trumpeted by ICAO[30] when the Convention came into force.[31]

In addition, a new liability limit is set for loss or damage to baggage under Article 22, not based on weight, but rather fixed at 1,000 SDRs. Article 22 also sets a new limit for damages for delay in carriage of passengers, fixed at 4,150 SDRs.

Finally, in relation to liability limits, Article 24 now provides for five yearly reviews of all liability limits. The benefit of this provision is manifest, particularly when it is recalled that the liability limits under the Warsaw Convention for death and injuries have changed only once since 1929, and have remained virtually constant for baggage and cargo. The new provision has the benefit of avoiding the search for consensus among the state signatories which has evidently proven so elusive over seventy years.

Other Significant Innovations

Of the other significant new features of the Montreal Convention, the following stand out:

Article 28 requires that in cases of accident causing injury or death to passengers, carriers are required to make advance payments without delay to meet the immediate needs of those entitled to claim compensation. Although the article also states that such payment in no way constitutes recognition of liability, the benefits to passengers in this situation can be well appreciated.

Article 33 also benefits claimants, creating a new forum in which plaintiffs may bring claims for death or injury. Under Article 28 of the Warsaw Convention, a plaintiff could only bring proceedings in one of four jurisdictions, either: before the court where (1) the carrier is ordinarily resident, or (2) has its principle place of business, or (3) where it has an establishment through which the contract was made, or (4) at the place of destination. In the case death or injury of passengers, the Montreal Convention adds a fifth forum, which is a court 'in the territory of a State Party in which at the time of the accident the passenger has his or her principle and permanent place of residence'.

Documentary requirements have also been modified. Specifically, the regime of ticketing and air waybills, flaws in which previously could lead to the liability limits not applying, has now been overhauled by in Chapter II (Articles 3 to 16). The new regime appears to implicitly recognize that in an age when electronic documents are employed in air carriage, that passengers and cargo owners may simply fail to receive them. In such circumstances, failure to comply with the documentary provisions 'shall not affect the existence of the contract of carriage, which shall, nevertheless, be subject to the rules of this Convention, including those relating to limitations of liability'.[32]

Finally, to underscore this regime of claims and their scope, Article 50 requires all state parties to the Convention to require their carriers to maintain adequate insurance to cover any liabilities which might arise under the Convention.

Significant Similarities

Of course, there is also much in the Montreal Convention which is not new. One of the key benefits of the Montreal Convention is that it consolidates the many other variations of the Warsaw Convention, hence the reference in its title to the 'unification' of rules. Accordingly, many parts of it will be very familiar. For example, the two year limitation period still appears under Article 35, as do the requirements for written complaints for loss, damage or delay to baggage or cargo, which appear under Article 31.

The liability for loss or damage to cargo which appears in Article 18(1), and the liability limit of 17 SDRs per kilogram as set down in Article 22(3), is also the same as it was under the Montreal Protocol No 4 regime. The maintenance of that limit for cargo, even if the damage is caused intentionally or recklessly by the carrier also remains. Similarly, the prescription for claims for death or injury under Article 17(1) is largely unchanged, the new Article 17(1) stating:

The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

However, it is with regard to this provision that it is now apparent that the Montreal Convention, in common with its predecessor, is inadequate to address all claims which might arise during international air carriage.

IV. Claims for Death or Injury

Article 17(1) of the Montreal Convention contains three key concepts which are unchanged from the Warsaw Convention which have been the subject of recent decisions and some controversy. They are: (1) the temporal coverage of the Article during which the carrier is responsible for death or injury; (2) the issue of what is covered by the expression 'bodily injury'; and (3) what constitutes an 'accident', sufficient to fall within the Article.[33]

Temporal Coverage

Article 17 provides that that carrier is liable for death or injury which occurs either on board the aircraft or 'in the course of any of the operations of embarking or disembarking'. No difficulty arises with the claim which arises onboard the aircraft. Delineating when embarkation commences and disembarkation is complete is not so clear.

The usual authority on this topic is the US case of Day v Trans World Airlines,[34] in which it was queried whether a terrorist attack in the departure lounge of Athens' Hellenikon Airport occurred during the 'international carriage' covered by Article 17. Noting that such operations are far more protracted than was the case when Article 17 was drafted, the trial judge identified eleven operations which were necessary before a passenger finally boarded the aircraft. On this basis, he determined that the plaintiff, who had already checked in, obtained boarding and baggage checks and seat numbers, and had passed through passport and currency control, and had been searched by security staff, was engaged in the operations of embarkation. Further, in confirming this decision, the US Court of Appeal described the trial judge's reasoning as comprising a 'tripartite test based on activity (what the plaintiffs were doing), control (at whose direction) and location', a description which has been applied in many cases since.[35] In this case, the effect of the decision was that the claim was covered by the Convention.

More recently, in the English case of Phillips v Air New Zealand,[36] similar reasoning was applied to determine whether a claim fell within the Warsaw Convention. In that case, the plaintiff was injured at Nadi International Airport, Fiji, when she fell off a wheelchair being pushed by an agent of the defendant on an escalator. She claimed damages for negligence, but it was found that she was engaged in 'international travel', and the accident causing her injury occurred after she had checked in, and had passed through security and passport control. She was therefore held to have been engaged in the operations of embarkation, and fell within the terms of Article 17. Unfortunately for the plaintiff, the result of this was that her claim was therefore struck out because it fell outside the Convention's two year limitation period. However, the decision confirmed consistency in the interpretation of the temporal aspects of Article 17.

'Bodily' Injury and 'Mental' Injury

The second noteworthy feature of Article 17 is its prescription for liability for death and 'bodily' injury. In many common law jurisdictions, the expression 'personal injury' has been used to describe all manner of injuries, including those of a psychiatric or psychological type (although caution has been exercised in these cases[37] ). These latter injuries are often referred to as 'mental injuries'. In the context of Article 17 the use of the expression 'bodily injury' has been held to exclude such mental injuries.[38] This is the finding of the highest courts in the United States and the United Kingdom, and has been followed in other jurisdictions.

The leading case in this area is the 1991 decision of the US Supreme Court in Eastern Airlines v Floyd.[39] In that case, an aircraft flying from Miami, Florida to the Bahamas lost power in all three of its engines. The crew having notified the passengers that a crash landing into the sea was imminent, awaited their fate. Fortunately, the crash was averted when at the last moment one of the engines was re-started. However, a number of passengers subsequently brought claims against the carrier seeking damages for the emotional distress they suffered. Their claims were dismissed. There being no question of the passengers suffering any physical injury, the Court had to determine only whether a 'mental or psychic injury', fell within the terms of a 'bodily injury'. The Court determined that it did not, stating:

Our review of the documentary evidence confirms - and the courts and commentators appear universally to agree - that there is no evidence that the drafters of the Warsaw Convention specifically considered liability for psychic injury or the meaning of lesion corporelle.. Indeed the unavailability of compensation in many common and civil law countries at the time of the Warsaw Convention persuades us that the signatories had no specific intention to include such a remedy in the convention. Because such a remedy was unknown in many, if not most jurisdictions in 1929, the drafters most likely would have felt compelled to make an unequivocal reference to purely mental injury if they had specifically intended to allow such recovery.[40]

Through the 1990s, and prior to the negotiation of the Montreal Convention, this decision appeared to be accepted by the House of Lords,[41] and was also followed in Canada[42] and Australia.[43] And yet, the exclusion of mental injuries under Article 17 of the Montreal Convention remains. It is in these circumstances that it should be appreciated that the omission of such injuries is therefore no longer a question of historical anomaly; the omission was clearly accepted when the Montreal Convention was being negotiated. At least this is what the British Secretary of State for the Environment, Transport and Regions stated when queried on the matter in Parliament, explaining that the initiative to include mental injuries was dropped when it was determined that it had insufficient support.[44] Indeed, it appears that the only way to claim for mental injuries is when there is some physical manifestation of the injury. This was explained in the House of Lords decision in Morris v KLM,[45] the most important case on this subject since the negotiation of the Montreal Convention. In Morris, a 16 year old female was travelling from Malaysia to Amsterdam. She was seated next to two men. Having fallen asleep during the flight, she awoke to discover the hand of the man next to her touching and caressing her thigh. She immediately left her seat and reported this to the cabin crew. However, after the flight she became depressed and was diagnosed as suffering from clinical depression. Although successful at first instance, the plaintiff's claim was refused by the House of Lords. Once again, the plaintiff did not allege any physical injury. However, in his judgment, Lord Hobhouse (with whom Lord Nicholls agreed) noted that:

There now exist techniques for investigating the functioning of the living brain and the central nervous system together with the roles played by neurotransmitters, hormones and electrical impulses. Physical changes can be scanned and observed using sophisticated instruments and the alterations in the normal chemistry of the brain can now be detected by sophisticated sampling techniques. What was previously invisible can now be made visible. These developments have two relevant results. It can now be shown by valid scientific techniques that certain psychiatric symptoms correspond to physical changes in the brain.[46]

Similarly, Lord Hope (with whom Lords Mackay and Steyn agreed) also noted that it would be wrong to refuse a claim where such changes to the brain were established. In the plaintiff's case, her difficulty was her failure to allege such changes. And yet, this judgment clearly indicates that there could come a time when such mental injuries could fall within the legal understanding of what is a 'bodily injury'.[47]

In the meantime, for New Zealand claimants this omission of mental injuries has a profound effect. As noted above, there is no prohibition on making claims under both the Injury Prevention, Rehabilitation, and Compensation Act as well as the Warsaw or Montreal Conventions. However, in most cases the mental injuries are excluded under the Act.[48] Ordinarily, this would allow a plaintiff to pursue common law proceedings.[49] However, as also noted above, the Conventions provide the exclusive source of claims against carriers for all damage incurred during international carriage.[50] Accordingly, this is one case in which the law in New Zealand, as in other jurisdictions will fail injured passengers.

'Accidents' and DVT

The other area of recent consternation under Article 17 concerns the requirement that only death and injuries caused by an 'accident' are covered, and the effect this has had on claims for injuries caused by Deep Vein Thrombosis or 'DVT'. The immediate difficulty posed here is best illustrated in the judgment of the US Supreme Court in the leading case of Air France v Saks.[51] In that case, a passenger flying from France to the United States suffered an injury to her inner left ear which left her deaf in that ear. It was presumed that this injury was caused by the pressurisation of the aircraft cabin during the aircraft's descent. The plaintiff initially sought to claim damages from the carrier on the basis of negligence, alleging negligent maintenance of the aircraft's pressurisation system, a claim which would carry with it the implicit argument that her injury was reasonably foreseeable. Reasonable foreseeability is, of course, the basis of the law of negligence under the common law.[52] However, this negligence claim was abandoned for two reasons. Firstly, the plaintiff subsequently conceded that the pressurisaton system was operating in the usual manner. And secondly, the flight was actually covered by the Warsaw Convention, thereby excluding the common law claim. The question therefore was whether there was a valid claim under Article 17. The Supreme Court determined that there was not, as the injury was not caused by an 'accident'. Delivering the judgment of the court, O'Connor J said:

We conclude that liability under Article 17 of the Warsaw Convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to a passenger.[53]

Regarding the plaintiff's own claim, Her Honour said

when the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and Article 17 of the Warsaw Convention cannot apply.[54]

The plaintiff was left without a claim.

This reading of what is meant by 'accident' has been followed by courts in the United Kingdom,[55] Canada[56] and Australia,[57] and most clearly illustrates the juxtaposition with the law of negligence. Whereas negligence provides for liability only where the danger of injury is reasonably foreseeable, Article 17 only provides for liability where the injury is caused by an event or happening which is quite unusual or unexpected. Indeed, Article 17 carries with it the possibility that if you can foresee an injury which will be caused by something quite usual, then this alone will exclude liability as there would be no accident. To lawyers raised in the common law, and (as in New Zealand) who will still use Article 17 when no fault compensation schemes do not apply, this position must be extremely perplexing.

And yet, this is the law applied in a series of cases, in which claims for DVT injuries have been refused because these injuries were not caused by an accident. In itself, a DVT is a blood clot or 'thrombosis' formed in the veins of the leg, such formation being encouraged by long periods of inactivity and lack of movement. DVTs become dangerous if they detach from the wall of the vein and subsequently lodge in other blood vessels through which they cannot pass. The most serious type of injury arises when these clots become lodged in the lungs, creating a pulmonary embolism, which can cause respiratory failure, and sometimes death.[58] In other words, it is neither 'events' or 'happenings', external to a sufferer, whether unexpected or unusual, which causes a DVT to form. On the contrary, it is inactivity. This much was made clear in the early DVT case of Scherer v Pan American World Airways[59] when the Supreme Court of New York in 1976 refused a claim because the plaintiff's 'thrombophlebitis' resulted from the plaintiff 'merely "sitting"' during a flight from Tokyo to California. However, this thirty year old decision has now been confirmed successively by recent decisions of the US Court of Appeal, the High Court of Australia and finally the House of Lords.

The first of these decisions was that of US Court of Appeals in Rodriguez v Ansett Australia.[60] In that case, a passenger who slept for the duration of her Air New Zealand flight from Los Angeles to Auckland, collapsed soon after exiting the aircraft in New Zealand. When she regained consciousness, she found she had lost the ability to speak and control of her right arm. She was taken to an Auckland hospital where doctors told her she had suffered a DVT which caused a pulmonary embolism. However, when she claimed damages for this injury, her claim was dismissed because she could not establish that an 'accident' had occurred. The Court found that the aircraft was doing nothing other than 'operating under normal conditions', and that the plaintiff's injury was the result of her own internal reaction to the normal operation of the aircraft. The Court also commented that at that time, there was nothing unusual about a carrier failing to warn about the dangers of DVT.

Following soon after, the decision of the High Court of Australia in Povey v Qantas[61] was the first ruling by a national court of final appeal in a DVT case. In this test case, it was alleged that there was an accident which caused the DVT related injuries. The 'accident' as pleaded comprised either the failure of the carrier to warn of the dangers of DVT, or in the alternative a series of 'flight conditions' which included: seating the plaintiff in a confined and restricted physical environment; impediments to the plaintiff getting out of his seat during the flights; the offer and supply of alcohol, tea and coffee during the flights; discouragement of the plaintiff from moving around the aircraft cabin during the flights; and also the plaintiff not being provided with information or warnings about the risk of DVT. Suffice it to say, this argument was rejected. There was nothing unusual set down here.

In refusing the argument, the majority judgment stated that the plaintiff's argument was based on three propositions. Firstly, that no distinction should be drawn between 'events' or 'happenings' on one hand, and 'non-events' or 'inaction' on the other. Secondly, that what was unexpected or unusual was to be determined from the perspective of the passenger as distinct from the carrier. And thirdly, that an 'accident' as a temporal concept might occur during the whole of a flight.[62] These propositions - all crucial to the plaintiff's case - were rejected. In the decision, the Saks formulation of 'accident' was once again affirmed. The claim was refused, their Honours observing that 'it is central to the appellant's case that nothing happened on board the aircraft which is in any respect out of the ordinary or unusual'.[63]

This decision pre-empted the decision of the House of Lords in Re Deep Vein Thrombosis and Air Travel Litigation,[64] a case originally concerning twenty-four separate actions against eighteen defendant carriers (including Air New Zealand). Once again, in a manner very similar to Povey, the plaintiffs argued that either a failure to warn could constitute the required accident, or alternatively, a series of flight conditions could constitute an accident.[65] The claim was refused unanimously, and for largely the same reasons as in Povey. There was no accident. Indeed, although there was some concern expressed by Lord Scott (with whom Lord Walker and Baroness Hale agreed) regarding the possible danger of preferring formulations on the meaning of a convention to the actual language of the convention - and this is clearly a danger when the reliance on a decision such as Saks is so apparent - His Lordship demonstrated why the Saks reading was correct in the interpretation of 'accident'. He said:

The use of the term 'accident' in art 17 but the term 'occurrence' in art 18 must be significant. Both terms impart the idea that something or other has happened. But 'occurrence' is entirely general in its natural meaning. It permits no distinction to be drawn between different types of happening. 'Accident' on the other hand must have been intended to denote an occurrence of a particular quality, an occurrence having particular characteristics. In the many decided cases in which the issue was whether the occurrence in question constituted an 'accident' for art 17 purposes, the judges have had to ask themselves whether the occurrence possessed the necessary quality or characteristics to qualify as an 'accident'. It is evident that it was never, or should never have been, enough for there to have been an occurrence that caused the damage. For art 17 liability the occurrence had to have the characteristics of an 'accident'.[66]

In other words, some event needed to happen. And it needed to be unexpected. The usual incidents of air travel alone could not constitute an accident. In New Zealand, these decisions were obviously of some significance, not merely because New Zealanders were among the plaintiffs in proposed class actions in Australia,[67] but also because local proceedings were also anticipated.[68]

Indeed, as with mental injuries, DVT related injuries do appear to fall between the cracks in the Injury Prevention, Rehabilitation, and Compensation Act. This is because: firstly, in common with Article 17, the Act also provides most of its coverage to injuries caused by accidents;[69] and secondly, because cases such as Innes v Wong[70] indicate that cardio-vascular injuries such as heart attacks and strokes also have no place in the Act (unless caused by medical misadventure or are work-related[71] ). Accordingly, it is very unlikely that in New Zealand such DVT claims arising during international carriage will give rise to a claim for compensation under the Act. And whereas in most situations like this, the alternative would be to pursue common law proceedings, once again the effect of the Conventions providing the exclusive remedy mean this option does not arise. Against the carrier, there is no claim for this injury, albeit a small class of injury.

V. Conclusion

Against this backdrop, it is still undeniable that the adoption of the Montreal Convention is a positive step. It does consolidate the variations which emerged in the Warsaw System over seventy years and sets down a carrier's liability for carriage of passengers and goods in one document. Further, although at present it has been ratified by only half the number of states using the Warsaw Convention, the fact that its membership has doubled in the three years since it came into force indicates that it has the potential to be as successful as its predecessor. All the more cruel the irony, therefore, that at the same time that this treaty was removing the last of the limits for damages payable by a carrier to claimants for death or injury, that it was also becoming apparent that it did not cover all claims, mental injuries and DVT claims - the latter which are so closely associated with international air travel.

For New Zealanders who were seeking compensation this irony is doubly felt, for New Zealand is a country where even the need to initiate proceedings for personal injury has been largely abrogated. Indeed, New Zealand was a world leader when it created its broad based no fault compensation scheme for injuries back in 1974. And yet, the limitations found in Article 17 also appear to pervade this scheme. There are injuries which are reasonably foreseeable for which there is no compensation. What is the solution? On the one hand, there is the option which is open to national governments of allowing such claims, and abandoning the exclusivity of the both the Warsaw and Montreal Conventions. Of course to do this would be to undermine the uniformity which is inherent in the conventions. As noted above, there were a number of reasons why the Warsaw Convention was first agreed in 1929. A primary motivation was to limit claims which might be made against players in an infant industry, claims which might have been fatal to those players and the industry. This imperative has now passed.[72] However, other imperatives remain. They include: firstly, protecting both passengers and cargo owners from the potential for carriers to insert far reaching exclusion clauses to prevent recovery for damage occurring during international carriage by air; and secondly, a general desire to harmonise domestic law in an area where the transactions are by their nature prone to the laws of more than one state.[73] Both of these two imperatives are typical of other treaty regimes dealing with international carriage, the rules dealing with sea carriage of goods being the obvious point of comparison. However, it is the second which is of most importance in assisting international traders in knowing their rights in foreign jurisdictions where otherwise the law would be uncertain. To abandon the conventions' exclusivity would be to threaten this certainty, and potentially see the existing uniformity devolve into a quagmire of different laws for every different state.

Accordingly, for governments around the world, the more useful and realistic answer is to negotiate and seek to improve the Montreal Convention's already outdated Article 17. But this is a task easier said than done.[74] Thus, for passengers, until this occurs, the answer is to seek insurance protection prior to engaging in international travel - as always.

[*] BA(Hons) LLM Monash, Barrister at Law (Vic); Senior Lecturer, Department of Business Law and Taxation, Monash University, Australia.

[1] Set out in Schedule 6 of the Civil Aviation Act 1990 (NZ).

[2] A brief overview is provided in Duncan Webb, 'Au Revoir Warsaw, Bonjour Montreal' [2003] New Zealand Law Journal 441. For further reading, see also: Pablo Mendes De Leon & Werner Eyskens, 'The Montreal Convention: Analysis of some aspects of the attempted modernization and consolidation of the Warsaw System' (2001) 66 Journal of Air Law and Commerce 1155; Jennifer McKay, 'The Refinement of the Warsaw System: Why the 1999 Montreal Convention represents the best hope for uniformity' (2002) 34 Case Western Reserve Journal of International Law 73; Bin Cheng, 'A New Era In The Law Of International Carriage By Air: From Warsaw (1929) To Montreal (1999)' (2004) 53 International and Comparative Law Quarterly 833; 'The Montreal Convention 1999' in Butterworths, Shawcross and Beaumont: Air Law, Vol 1 (at issue 104, June 2006), Division VII: Carriage by Air, Chapter 25, 'The Warsaw System' [218] - [224]; Paul Stephen Dempsey & Michael Milde, International Air Carrier Liability: The Montreal Convention of 1999 (2006).

[3] Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw, 12 October 1929), reproduced in [1963] Australian Treaty Series 18.

[4] Section 317 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 (NZ) bars persons from bringing proceedings for personal injuries which are covered by the Act. However, a specific exception is allowed where the liability arises under the law of New Zealand under any international convention relating to the carriage of persons: s 317 (5).

[5] Interestingly, New Zealand medical practitioners recently determined that the risk of DVT is proportionally distributed across all classes of seat, and for this reason should simply be referred to as 'traveller's thrombosis' or 'air travel-related venous thromboembolism'. See RJ Hughes et al, 'Frequency of venous thromboembolism in low to moderate risk long distance air travelers: the New Zealand Air Traveller's Thrombosis (NZATT) study' (2003) 362 The Lancet 2039.

[6] Ian Mackersey, Smithy: The Life of Sir Charles Kingsford-Smith (1998) 170-175.

[7] Ratified 6 April 1937; Entered Into Force 5 July 1937. See 'Contracting Parties to the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929 and the Protocol Modifying the said Convention signed at the Hague on 28 September 1955’, <> (accessed June 2006).

[8] Civil Aviation Act 1990, ss 91O-91RA.

[9] This was illustrated in the United States case of Chubb & Sons v Asiana Airlines, [2000] USCA2 211; 214 F 3d 301 (2nd Cir, 2000) when no version of the convention applied to carriage between the United States and South Korea, as at that time the United States had only adopted the unamended Warsaw Convention, and the earliest version adopted by South Korea was that amended by the Hague Protocol. The United States adopted all versions soon after, as well as the Montreal Convention.

[10] IMF valuation of the New Zealand dollar being 0.42 SDRs on 30 June 2006 <> (accessed 30 June 2006).

[11] This notice was incorporated into International Air Transport Association (‘IATA') air tickets, pursuant to the Montreal Intercarrier Agreement 1966. See Committee on Aeronautics, 'The Warsaw Convention Revisited: An Update on Liability Limitations for the Twenty-First Century' 54 The Record 318 (May/June 1999).

[12] Concepts discussed in Newell v Canadian Pacific Airlines (1976) 74 DLR 574.

[13] [2004] DCR 786; 2004 NZDCR LEXIS 38. In Vinotica, a case in which a cargo of cheese being shipped from Melbourne to Auckland was ruined, the issue was not whether the convention limited the claim, but whether the plaintiff could claim both the value of the cargo and also the cost of the freight. The Court, in finding for the plaintiff, determined that damages under Article 22 are not limited to covering damage sustained to the cargo, but could also cover pecuniary loss, and therefore could include freight.

[14] Interpreted to mean the carrier has proven that it 'exercised all reasonable skill and care in taking all necessary measures to avoid causing damage by accident to the passenger, or proves it was impossible to take such measures'; Grein v Imperial Airways [1937] 1 KB 50, 59.

[15] Panalpina International Transport Ltd v Densil Underwear Ltd [1981] 1 Lloyd's Rep 187.

[16] [1980] UKHL 6; [1980] 2 All ER 696.

[17] [1984] USCA9 387; 727 F 2d 880 (9th Cir, 1984).

[18] [1996] UKHL 5; [1997] AC 430.

[19] Ibid 453.

[20] Emery Air Freight Corp v Nerine Nurseries [1997] 3 NZLR 723.

Arguably this endorsement of Sidhu was weakened by the decision in DanzasAG v Hally Press Ltd [2004] NZCA 88; [2005] 3 NZLR 146, when the Court of Appeal allowed a Warsaw Convention claim which was erroneously commenced in the High Court in its Admiralty jurisdiction to be transferred to the Court's civil jurisdiction after the two year limitation period had expired. However, the Court concluded at paras [32]-[33] that: 'There is one High Court without separate divisions in New Zealand ... We are satisfied the proceedings filed [ie in Admiralty] constituted the commencement of a valid action in the High Court. While there was an irregularity of procedure, there was no nullity.' See also Andrew Beck, 'Admiralty and General Jurisdiction' [2004] New Zealand Law Journal 395. This approach is also consistent with the decision of the High Court of Australia when it allowed claims which were erroneously commenced by common law pleadings to be substituted after two years had passed with claims pleading a statutory cause of action for domestic air carriage (which in Australia is based on the Warsaw Convention). Specifically, in Agtrack (NT) Pty Limited v Hatfield [2005] HCA 38 and Air Link Pty Limited v Paterson [2005] HCA 39, the High Court of Australia determined that a relevant claim has been brought within time, even if the pleading was flawed.

[21] Gal v Northern Mountain Helicopters, Gal v Northern Mountain Helicopters Inc (1998) 54 BCLR (3d) 87.

[22] Kotsambasis v Singapore Airlines (1997) 42 NSWLR 110.

[23] ElAl v Tseng, 525 US 155 (1999).

[24] Of course, with regard to domestic air carriage, such claims were displaced even before the introduction of the no fault compensation scheme by New Zealand's domestic regime under the Carriage by Air Act 1967, by which a regime based on the Warsaw Convention applied. However, with regard to death and injury of passengers this was itself subsumed by the no fault compensation scheme. It is important to note that although the initial version of the Accident Compensation Act 1972 expressly referred to the Carriage by Air Act and excluded its application in cases of death and personal injury where the Accident Compensation Act applied, that even though this Act was subsequently repealed and later no fault compensation legislation did not repeat that exclusion, the Court of Appeal has held that the scheme still prevails and that an unfettered Carriage by Air Act has not been reanimated: McGrory v Ansett New Zealand Ltd [1999] 2 NZLR 328.

As regards domestic air carriage of goods in New Zealand, s 6 of the Carriage of Goods Act 1979 also imposes a statutory regime for claims against carriers, exclusive of any common law claims. It is also based on a compromise, restricting the carrier's ability to exclude liability but limiting the quantum of damages claimable against that carrier.

[25] Section 317(1).

[26] See above n 8.

[27] In May 2005, a recommendation was made to the Australian Parliament by its Joint Standing Committee on Treaties, that Australia accede to the Montreal Convention. See Report 65: Treaties tabled on 7 December 2004 (3) and 8 February 2005 (May 2005), Chapter 5; <> (accessed 29 June 2006).

[28] See above n 7.

[29] List of parties available at <> (accessed 1 June 2006).

[30] International Civil Aviation Organization.

[31] 'Montreal Convention of 1999 on Compensation for Accident Victims set to enter force', PIO 14/2003 (5 September 2003), available at <> (accessed 22 January 2004).

[32] Identical words are used in Article 3(5) in relation to passengers, and Article 9 in relation to cargo.

Although it has been suggested that under the Warsaw Convention, that a passenger's sighting of an electronic Warsaw notice in an electronic passenger ticket and then ticking a dialogue box should arguably satisfy the notice requirements under Article 3 even without a printed Warsaw notice, the untested ambiguity inherent in this argument has now been removed by the Montreal Convention stating that the Convention's limits shall apply in all cases: see Anders Rueda, 'The Warsaw Convention and electronic ticketing' (2002) 67 Journal of Air Law and Commerce 401. However, it has also been pointed out that the phenomenon of the electronic ticket also raises new issues, including that of jurisdiction under Article 33 as there may be ambiguity as to the place in 'which the contract has been made': see also Ruwantissa Abeyratne, 'Electronic ticketing - Current Legal Issues' (2005) 70 Journal of Air Law and Commerce 141.

[33] These issues are discussed in Andrew Field, 'Air Travel, Accidents and Injuries: Why the new Montreal Convention is already outdated' (2005) 28 Dalhousie Law Journal 69.

[34] 393 F Supp 217 (SDNY, 1975).

[35] 528F2d31 (2nd Cir, 1975).

[36] [2002] 2 Lloyds Rep 408.

[37] See Stephen Todd (ed), The Law of Torts in New Zealand (3rd ed, 2001) 173-191.

[38] However, there is still debate regarding coverage of mental injuries accompanied by physical injuries: Brent All dredge, 'Continuing Questions in Aviation Liability Law: Should Article 17 of the Warsaw Convention be Construed to Encompass Physical Manifestations of Emotional and Mental Distress?' (2002) 67 Journal of Air Law and Commerce 1345. John Easton et al, 'Post Traumatic "Lesion Corporelle": A Continuum of Bodily Injury under the Warsaw Convention' (2003) 68 Journal of Air Law and Commerce 665, further raise the issue as to coverage of mental injuries which is quite unrelated to an accompanying physical injury.

[39] [1991] USSC 58; 499 US 530 (1991).

[40] Ibid 544-545.

[41] Sidhu v British Airways[1997] AC 430.

[42] Chau v Delta Airlines (2003) 67 O.R. (3d) 108.

[43] Kotsambasis v Singapore Airlines (1997) 42 NSWLR 110.

[44] United Kingdom, Parliamentary Debates, House of Commons (3 July 2000), cols 87-88; available at <> .

[45] [2002] UKHL 7.

[46] Ibid [152].

[47] In Weaver v Delta Airlines, 56 F Supp 2d 1190 (US Dist Ct Mont 1999) a court allowed a claim based on 'recent scientific research explaining that post-traumatic stress disorder evidences actual trauma to brain cell structures.' Easton, above n 38, also concludes that it now being clear that 'bodily injuries' do not include purely 'mental injuries' or 'emotional injuries', that better informed plaintiffs will seek to argue that such injuries are actually physical injuries, and will do so armed with the evidence of their scientific and medical experts who are in turn endowed with knowledge assisted by the advances in their disciplines.

[48] Sections 20(4) and 22(6) provide coverage for 'personal injury', but s 26 in defining this term only incudes mental injuries caused by physical injuries or those mental injuries falling within the coverage of s 21 (ie mental injuries caused by criminal acts).

[49] This was precisely the point confirmed in Queenstown Lakes District Council v Palmer [1998] NZCA 190; [1999] 1 NZLR 549 when the Court of Appeal rejected an argument that the predecessor of s 317, above n 4, barred proceedings for mental injuries which were not covered by the no fault compensation legislation, when it allowed the claim of the plaintiff to proceed, a common law claim which was for nervous shock caused by witnessing the death of his wife who was killed when the raft on which they were travelling capsized on the Shotover River.

[50] Sidhu v British Airways [1996] UKHL 5; [1997] AC 430.

[51] [1985] USSC 43; 470 US 392 (1985).

[52] Donoghue v Stevenson [1932] AC 562.

[53] [1985] USSC 43; 470 US 392, 405 (1985).

[54] Ibid 406.

[55] Morris v KLM [2002] UKHL 7.

[56] Quinn v Canadian Airlines International [1997] Ont CA Lexis 267.

[57] Povey v Qantas [2005] HCA 33.

[58] Re Deep Vein Thrombosis and Air Travel Litigation [2003] EWCA Civ 1005, [6]. See also Hughes, above n 5.

[59] 54 AD 2d 636 (SCNY, 1976).

[60] [2004] USCA9 614; 383 F 3d 914 (9th Cir, 2004).

[61] [2005] HCA 33.

[62] Ibid [29].

[63] Ibid [40].

[64] [2005] UKHL 72.

[65] Ibid [10].

[66] Ibid [7].

[67] Cathy Aronson, 'DVT cases underway', The New Zealand Herald, 6 May 2002.

[68] Ibid. See also 'DVT Litigation: 20 New Zealanders to file damage suit against airlines', (2002) 4 (25) Class Action Reporter (5 February 2002), obtained at <> (accessed 14 June 2006). See also Andrew Scott-Howman, 'Deep Vein Thrombosis: Who pays the price?', The Independent, 14 September 2005, 20, commenting that the question was vexing as neither the carriers were liable, and there was no claim for international passengers suffering DVTs under the no fault compensation scheme.

[69] Section 20.

[70] [1996] NZHC 187; [1996] 3 NZLR 238.

[71] Ibid.

[72] Although the return on capital investment for air carriers is comparatively low, established carriers nevertheless earn substantial returns in dollar terms. For example, Air New Zealand reported a profit of NZ$235 million for 2005, also ending 2005 with $NZ1.07 billion cash on hand: Ralph Norris, 'Chief Executive Officer's Review', Air New Zealand Annual Report 2005, 6.

[73] With regard to the carriage of goods, these two imperatives also motivated the agreement of International Convention for the Unification of Certain Rules relating to Bills of Lading 1924 (the 'Hague Rules') to govern carriage of goods by sea; see Martin Davies & Anthony Dickey, Shipping Law (3rd ed, 2004) 169-171.

[74] And yet, although difficult, the history of the Warsaw Convention and the Montreal Convention indicates that such amendment is quite feasible. In comparison with the Hague Rules governing carriage of goods by sea, which have only had one major revision agreed at Visby, Sweden, in 1968 (incorporated in New Zealand's Maritime Transport Act 1994, Fifth Schedule), as noted in the text above, the Warsaw Convention has been revised and amended many times. Perhaps this success can be attributed to the broader coverage of the Warsaw system, in so far as it also covers carriage of passengers as well as goods, thereby encompassing many more interests which have the potential to exert pressure over national governments. In contrast, the Hague and Hague-Visby Rules, which consist of a mere ten articles, have a much narrower reach and do not touch on passenger rights.

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