Aviation Law (Montreal Convention)

• Author: International Law Group, PLLC
• Pages: 193-197

Page 193

British Airways (Defendant) is, inter alia, an international commercial air carrier. On Sunday October 17, 2004, Beverley Anne Barclay, the Plaintiff , was the Defendant's passenger for reward on international flight number BA288 from Phoenix, Arizona in the United States to London Heathrow in the United Kingdom.

The crew showed Plaintiff down the port aisle of the aircraft to her seat #26E, the second seat in a row of four seats (26D-G). The four seats were in the center of the aircraft with an aisle at either end. The Plaintiff 's seat was immediately to the port of the aircraft's midline. Immediately ahead of Plaintiff 's row of four seats was another row of four seats. The first two seats of that row ahead (25D-E) were in a reclined position. To reach her seat, the Plaintiff passed sideways to her right between the reclined seats ahead and the first seat in her row (26D). To do so, she had to lean slightly backwards.

As she lowered herself into her seat, with her body weight towards the right, the Plaintiff 's right foot suddenly slipped on a strip embedded in the floor of the aircraft and went to the left. Upon slipping the Plaintiff heard and felt her knee "pop" and as it gave way it struck the arm rest injuring the Plaintiff .

The layout of the passenger cabin, the seating space available to each passenger, the type of passenger seats and the strips installed on the aircraft covering the seating tracks all conformed to the Defendant's Page 194 usual standard for an aircraft of that type, a Boeing 747, flying on the route in question. They were not defective and were in full working order. All of the aircraft's seating and all of its systems aff ecting the passenger cabin environment and floor were in their normal working order. The aircraft complied with, and the flight was carried out in accordance with, all applicable aviation regulations.

The provisions of the Montreal Convention of 1998 applied to the flight. "This Convention provides the exclusive cause of action and sole remedy available against an international air carrier in respect of loss, damage or delay suff ered by passengers, or their baggage, in the course of, or arising out of, their international carriage by air."

The strip referred to was a narrow plastic strip running under the seats and covering what the airline refers to as the "seat fix tracking." This was entirely standard equipment on a BA Boeing 747. After considering the arguments of learned counsel, the Court of Appeal (Civil Division) unanimously dismisses Plaintiff 's appeal.

"So far as is shown by counsel's researches, however, this is the first case in this court on Article 17.1 of the 1998 Montreal Convention. Both parties accept that authorities on the meaning of the 1929 Warsaw Convention measure are just as valuable in relation to the current legislation."

"By common consent, the leading case on Article 17 of the Warsaw Convention, no less applicable to Montreal Article 17.1, is Air France v. Saks, 470 U.S. 392 (Sup. Ct. 1985). There the plaintiff , a passenger aboard an aircraft coming in to land, suff ered pressure and pain in her left ear and doctors later diagnosed her as permanently deaf in that ear. The aircraft's pressurisation system was working normally. The airline moved for summary judgment against the plaintiff on the ground that she could not prove that her injury had been caused by an 'accident' within Article 17 of the Warsaw Convention."

"O'Connor J, delivering the opinion of the Supreme Court, analysed the text of the Convention (in both English and French), the negotiating history of the Convention and the travaux preparatories (sic), along with existing authority of courts in the United States and elsewhere. She identified two 'clues', as she described them, to the meaning of the term 'accident'. The first points to the contrast between the word...