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International Aviation Law

The Warsaw Convention

In 1929, a treaty was formed in Warsaw, Poland, which was meant to protect airlines - especially smaller or newer ones - from incurring excessive damage liability in case of an accident. The Warsaw Convention treaty was ratified by the United States in 1934. In effect, the treaty served to restrict the rights of international air travelers and their families, by setting a limit to the amount of money they could collect in case of an accident causing injury or death.

The Warsaw Convention set into place a maximum amount of liability, regardless of circumstances. The only way to receive more was to prove the airline guilty of "willful misconduct," but it was nearly impossible to demonstrate that an accident was due to intentional negligence. The exact amount that could be collected was based on a standard so that despite diverse and changing economic conditions between countries, the award would be comparable in practical terms. In the United States, that amount was $75,000 until 1997.

Disparity with U.S. Domestic Law

The Warsaw Convention's bias towards protecting the airlines resulted in an overwhelming difference between the rights of domestic air travelers and those of international passengers. While those on domestic flights could sue for full compensatory damages, international travelers were held to the $75,000 maximum. And since the Warsaw Convention rule applied to passengers on a domestic leg of an international flight, two people on the same flight that chose to sue the airline after being injured could conceivably receive disparate compensation. The one staying in the United States could receive millions of dollars, while the one planning to connect to a flight going abroad would be limited to $75,000. This inconsistency led to dissatisfaction among international travelers, who began lobbying for the U.S. to pull out of the treaty.

The Intercarrier Agreement

When the U.S. government threatened to abandon the Warsaw Convention treaty because of domestic pressures, the airlines had to act in order to avoid being left vulnerable. Without the United States involved, the Warsaw Convention treaty could not function properly.

Beginning in 1997, over 120 airlines signed an intercarrier agreement that amended the restrictions of the nearly seventy-year-old treaty. The agreement, sponsored by the International Air Transport Association and the U.S. Department of Transportation, waived the $75,000 limit in the U.S. Now, in the United States and most other countries, a victim or family may sue for full compensatory damages, up to the amount allowed for domestic flights in each country. In the United States, victims of international air disasters almost always automatically receive $135,000 from the airline involved, even without an accompanying admission of guilt.

Compensatory Damages

Most airline passengers both international and domestic now have the right to sue for compensatory damages. There are two types of damages in this category:

  • Pecuniary damages -- These are the economic results of the injury or death, such as medical costs and lost wages. For a family who lost a provider, it may also constitute the support that that person's income would have supplied.
  • Non-pecuniary damages -- These refer to the pain and suffering caused by the injury or death. When applicable, non-pecuniary damages often exceed those awarded for strictly economic harm. The amount is levied by the jury, per the judge's approval.

Accidents Not Involving Physical Injury

The revised Warsaw Convention still prohibits victims from suing for emotional damages when there was no physical injury sustained. This is another area of discrepancy with domestic law. Recently, U.S. courts have allowed passengers on domestic flights to bring civil claims against airlines. This is not allowed in international aviation law, where misconduct of other passengers or airline workers can only be prosecuted if physical injury or death results from their actions. There is no recompense for emotional damages alone in international aviation law.

 

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