Passenger claims in international air travel: How far does the Montreal Convention reach?

In the 2014 decision of Thibodeau v. Air Canada, the Supreme Court of Canada confirmed that the Montreal Convention, an international treaty incorporated into Canadian law, exclusively governs passenger claims for damages in relation to international air travel that fall within its scope. Consequently, if an action in respect of such a claim is not specifically provided for in the Convention, it is not available at all, regardless of local law.  This statement of the law is consistent with the interpretation of courts in most other signatory countries.

The Montreal Convention provides that personal injury claims may only be brought if the passenger has suffered “bodily injury” as a result of an “accident” that occurs during an international flight or during embarkation or disembarkation.  Courts have consistently interpreted “bodily injury” to refer to physical injury, and have concluded that claims for pure psychological injury, including stress and inconvenience, are precluded.  However, if a claim is found to fall outside the scope of the Montreal Convention, this limitation does not apply and a common law negligence claim is available.

In the recent case of El-Zoobi v. United Airlines, Inc., a passenger claimed damages resulting from a complaint made by a flight attendant to the United States Federal Aviation Administration (“FAA”) regarding his refusal to turn off his cell phone on a flight from Washington, D.C. to Beijing.  Prior to take-off, two flight attendants had asked the passenger, Mr. El-Zoobi, to turn off his phone, but he refused, stating that it was sufficient that he turn it to “airplane mode”.  As a result, the flight attendants summoned one of the pilots.  Mr. El-Zoobi informed the pilot that he was an employee of the FAA, but eventually agreed to turn off the phone.

At some point in the several days after the flight, the head flight attendant made an online complaint to the FAA regarding Mr. El-Zoobi’s refusal to turn off his phone and his unruly behaviour. As a result of the complaint, Mr. El-Zoobi was disciplined by the FAA, although the penalty was later withdrawn. Mr. El-Zoobi claimed that the complaint was false.  He argued that the Montreal Convention did not apply and that he was entitled to damages at common law, on the basis that the cause of his damages was the filing of the report, which occurred well after he disembarked the flight.

The Appellate Court of Illinois disagreed, finding that the Convention applied and precluded his claim.  The court engaged in a “chain of causation” analysis, finding that while the report was submitted after the flight, but for the events that occurred during the flight, it would not have been submitted.  Therefore, the altercation and Mr. El-Zoobi’s conduct on the plane was a link in the chain that could not be separated from the filing of the complaint.  This brought Mr. El-Zoobi’s claim within the scope of Convention, and the court upheld the lower court’s decision to dismiss it.

This reasoning is consistent with Canadian cases.  For example, in Gontcharov v. Canjet, the plaintiff claimed damages for false imprisonment after he was escorted off a flight by police and detained for three hours after an altercation over the temperature on board the aircraft.  The court dismissed the claim on the basis that while the detention occurred after the plaintiff disembarked, it was a link in the chain of events that began while he was on the plane.

Similarly, in O’Mara v. Air Canada, the court struck the plaintiffs’ common law claim for psychological injury resulting from an incident in which a pilot mistakenly believed the aircraft was on a collision course with another plane, leading him to make a sudden altitude change.  The plaintiffs had argued that their psychological injuries resulted from an alleged “cover-up” after the flight regarding the cause of the incident, rather than the incident itself.  However, the court applied the chain of causation analysis and the reasoning in Gontcharov, concluding that the alleged “cover-up” was causally connected to the incident that occurred during the flight.

While these types of cases are fact-dependent, these decisions suggest that courts will not isolate particular events that occur outside the temporal scope of the Montreal Convention in determining whether the plaintiff is entitled to bring a common law claim for damages.  Rather, they will consider all of the events leading to the alleged injury and determine whether a sufficient causal chain links any subsequent events to events that occurred during the flight or during embarking or disembarking.  Where such a causal chain is present, plaintiffs will not be able to escape the application of the Convention through artful pleading.  This is appropriate, given that the Convention is intended to be applied uniformly across jurisdictions and in similar factual circumstances, in order to increase certainty for both carriers and passengers.