Since 1929, recovery for accidents suffered on international flights has been limited to bodily injury. Although the most recent treaty governing international commercial flight retained the “bodily injury” language, a close study of the treaty’s history and more importantly, the negotiations among the signatories’ delegates suggests that the great majority of nations intended to broaden allowable recovery beyond strict bodily injury and that many had in fact already interpreted the phrase to include mental injury. As a result, courts interpreting “bodily injury” under the new treaty should closely review the intent of the signatories before adopting the previous treaty’s precedent.
Regulation of international commercial air travel began when it was still considered dangerous and before a broad market existed. To advance its goal of protecting the emerging airline industry, the 1929 Warsaw Convention required arbitrary damages caps, preclusion of punitive awards, and restriction of recovery to bodily injury. As aviation innovations ushered in an era of global commercial air travel, the once-nascent industry evolved into a robust and profitable one. Although the policy to protect the industry was no longer relevant, the treaty’s strictures still applied.
To address perceived inequities stemming from the limitation of recovery to “bodily injury,” courts stretched, and the resulting and fragmented judicial precedent threatened the unity the Warsaw Convention hoped to achieve. Nations frequently convened to expand recovery beyond bodily injury but ultimately achieved only a patchwork of contractual agreements. The most comprehensive of such conventions, the Montreal Convention, successfully modernized its dated progenitor in numerous regards but nevertheless failed to alter Warsaw’s language that limited recovery to bodily injury.
Even though the bodily injury limitation was retained, a thorough review of the negotiations in Montreal indicates that multiple nations have historically interpreted “bodily injury” as a form of personal injury. More importantly, a great majority of delegates advocated for broader recovery than that afforded by “bodily injury.” The United States’ own delegate represented its precedent as broader than that allowed under the majority trend.
Because the policy informing the new treaty materially changed, and because the delegates’ negotiations evinced a decided disposition towards broader recovery, courts faced with claims under the Montreal Convention must undertake a materially different analysis from those courts that addressed similar claims under Warsaw.
- Montreal Convention,
- bodily injury
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