Features Operations
On Final: Avoiding an international incident

One of the most significant concerns for commercial air operators is limiting liability when there is an incident during a flight that could expose their company to court proceedings that claim large amounts in damages. In particular, if the organization operates international flights, it’s important to be aware of the various international treaties and conventions that may limit the liability of an air carrier.

In Canada, the Carriage by Air Act incorporates the Warsaw Convention of 1929 and the Montreal Convention of 1999 (the “Convention”). The goal of these conventions was to create consistency in the application of the law to all air carriers operating internationally and they effectively limit an air carrier’s liability in certain circumstances.

In June 2012, the Ontario Superior Court of Justice reviewed the application of the Convention in the case of Gontcharov vs. Canjet and sets out when the Convention applies to international air travel.

According to his statement of claim, Gontcharov had purchased a return ticket through a tour operator for a vacation in Puerto Plata; his flights were operated by Canjet. On the return leg of the flight, he complained that he was cold and asked the flight attendants to either turn up the heat or provide him with a blanket; however both requests were denied. When he asked a second time for a blanket, he was told he was a “high-maintenance passenger” and that he would be charged $10 for the blanket. When the aircraft landed, Gontcharov was escorted off the aircraft by police and was required to stand aside with four armed guards to allow other passengers to disembark. He was detained by police for a few hours and was released with an apology from the airline.

The plaintiff commenced legal proceedings against Canjet claiming general damages, aggravated and punitive damages for pain and suffering and infliction of mental distress, and damages for forcible confinement and false imprisonment. The plaintiff also claimed he suffered damages from severe bronchitis he contracted as a result of the incident. Canjet brought a motion to strike the plaintiff’s claim on the basis that it did not disclose a cause of action since the injury was an “accident” that occurred while he was on the aircraft and is governed by the Convention.

The Convention applies “to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.” The Convention applies to commercial operations and may also apply to those independent agents who perform services for the carrier, including maintenance providers.

Article 17 of the Convention gives rise to liability for injury caused by an “accident” while onboard the aircraft or during the process of embarkation or disembarkation. Gontcharov argued that his injury occurred with his wrongful arrest by police after disembarkation but the allegations in the statement of claim were clear that the cause of his alleged injury commenced during the flight when the flight attendant refused to provide a blanket and continued throughout the plaintiff’s confinement by police.
Therefore, the Court upheld that there was a “chain of causation” and that the acts complained of by the plaintiff began on the aircraft and continued after disembarkation, so they were all part of the chain that caused the alleged injury.

The Court also reinforced the case law that interprets the term “accident” under Article 17 broadly and confirmed that an “accident” includes intentional acts of wrongdoing by carrier staff. In this case, the refusal of flight attendants to bring a blanket or provide heat fell within the definition of “accident” under the Convention.

The plaintiff was permitted to proceed with his claim for damages due to his bronchitis that arose as a result of the “accident,” but his claims for punitive, exemplary or other non-compensatory da-mages were struck because claims for these kinds of damages are not permitted under the Convention. Furthermore, the case law supported Canjet’s position that damages for psychological injury, without accompanying physical injury, are not recoverable under the Convention so the plaintiff’s claims under these heads of damage were also struck.

The end result is that Canjet’s potential liability was dramatically reduced and the Court decision supports the idea that the Convention should offer consistency and certainty to aviation claims that arise during international flights. Of course, every legal proceeding is based on its own unique set of facts but it is clear that an air operator’s liability may be significantly limited in cases where the Convention applies.

Krista Bulmer is a lawyer practising aviation law, business law and civil litigation with the law firm, Wires Jolley LLP in Toronto.