Planes and claims

Image: IG @alvcro

What a week it has been in my aviation practice. Lots of stuff going on, including two aircraft grounded for regulatory reasons in different parts of the world, one aircraft embargo in Curaçao, and aircraft financing deals. Besides that, the Court of First Instance in Curaçao issued a read-worthy decision regarding a passenger’s claim against Avianca Airlines for alleged damages suffered. In the news, an Amerijet cargo aircraft somehow managed to tip a small plane over with a jet blast during a taxi, and a police helicopter was grounded due to lack of payment. Allow me to share part a bit of this with you.

Avianca

The Avianca case smells like someone wanted to do some ambulance chasing in the sky. What happened? A passenger was on a flight from Cali-Bogota-Curacao and suffered an accident mid-flight on November 30th, 2014. His knee sustained an injury — he claimed. The verdict doesn’t contain any further details as to how the injury was suffered or what the nature of the injury was.  We could speculate about the possibility of some turbulence. He filed a claim with Avianca, and Avianca paid him close to $550. In February 2015, the passenger sent a letter to Avianca, holding Avianca liable for all material and immaterial damages suffered. His lawyers repeated this in March 2015. In May 2015, Avianca’s insurer got involved. In June 2015, the airline asked him to substantiate his claims.   After a radio silence, Avianca asked him in June 2016 to contact the insurer. In August 2016, the passengers responded, indicating that the claim preparation was complicated. In October 2016, he suggested that the paperwork was ready. It took him until May 2017 to submit the medical claims. In July 2017, the insurer informed him that his claim had expired and that Avianca would not pay him anything else besides the US$ 550 paid to him earlier. Ouch, that must have felt like a rough landing to him. Our unhappy passenger filed suit against Avianca in Curaçao in February 2022. The Court of First Instance of Curaçao ruled on February 19th, 2023.

Warsaw Convention

Our guy should have read the fine print on his airline ticket or boarding pass. Who reads that stuff anyway? Well, had he read it, he would have learned that The Warsaw Convention, formally known as the Convention for the Unification of Certain Rules Relating to International Carriage by Air, is a foundational international treaty established to regulate the liability of air carriers in global aviation. Signed in Warsaw in 1929, this convention created a uniform legal framework for passengers, baggage, and cargo transported on international flights. For passengers, the Warsaw Convention sets forth the conditions under which an airline can be held liable for injuries, death, or loss of luggage during international carriage. It outlines the rights of passengers to seek compensation in the event of accidents, damage, or loss but also places limits on the amount of compensation that can be claimed. This means that in international air travel, passengers have certain protections and entitlements to compensation in case of mishaps. Still, these are subject to the specific terms and limitations outlined by the convention. The Montreal Convention, officially known as the Convention for the Unification of Certain Rules for International Carriage by Air, was drafted to modernize and amend the Warsaw Convention. It applies only to the international carriage of persons, baggage, or cargo that originates in the territory of one of the states parties to the Convention and terminates in that of another. 

Article 35 determines the maximum permissible period for plaintiffs to file claims against air carriers under the Montreal Convention 1999. This period shall be a maximum of two years. Starting from the date of arrival at the destination, the date on which the aircraft should have arrived, or the date on which the carriage stopped. Thus, if the claim falls under the Montreal Convention 1999, and it is not made within two years, the right to claim is extinguished. 

Our friends at Avianca’s legal department and their insurer certainly were well aware of the small print. They defended themselves by invoking a statute of limitations from the Warsaw Convention, stating that any claim must be filed within two years from the date of the flight’s arrival. Do the math, and you will see that our litigious happy passenger’s claim expired on November 30th, 2016, two years after the flight landed. So, all actions taken since December 1, 2016, were in vain.

The verdict

The court rejected his claim based on the statute of limitation of the Convention and sentenced him to pay court-awarded legal fees to Avianca of approximately US$ 2,100. So, excluding his legal fees, our guy is down at least US$ 1,600. Sort of an expensive flight if you add all this up together.

Not fair?

The passenger tried to contest the fairness of enforcing the statute of limitations, arguing that his timely initiation of the claims process should negate the statute’s applicability. He further accused Avianca of not informing him about the deadline, constituting a breach of duty. However, the court determined that the Warsaw Convention did not allow domestic law or principles, such as reasonableness and fairness, to override its stipulations. The court also noted that the passenger’s arguments regarding Avianca’s alleged failure to inform him about the filing deadline did not hold, as the general terms and conditions had already clarified this. Our friendly passenger didn’t have a good day in court.

How do we benefit?

The Convention benefits passengers in multiple ways. It provides a standard set of rules and protects them across borders. The convention establishes airline liability for damages caused to passengers while on international transport. Passengers can seek compensation in the event of an injury, death, or luggage loss/damage. The Convention simplifies legal processes for passengers by standardizing rules across all countries. The uniformity of the laws across countries helps to reduce confusion and complexity that could arise when dealing with them. Passengers can feel more secure and predictable when they know that established rules govern their rights during international air travel. It can help make international travel more accessible. The convention limits the amount of compensation that can be claimed. This also helps to accelerate the compensation process. When the costs of settling claims are known, airlines are more willing to do so. By providing a framework that balances the interests of both passengers and airlines, the Convention has helped to grow international air travel. The growth of international air transport has led to increased options, lower costs, and greater passenger convenience.

Takeaway

This case underscores the importance of conventions in our legal system. The Montreal Convention benefits airliners and passengers. In the case of claims, it strictly governs the timelines within which claims related to air travel must be filed. Two years seems a reasonable time frame to file a claim; besides, legal instruments are available to reserve one’s rights to prevent the statute of limitation from expiring. Our passenger missed the boat (or plane) on this one.  The court’s application of the statute of limitations reflects a commitment to upholding international legal standards despite the plaintiff’s arguments regarding procedural fairness and the defendant’s alleged duty of care. The verdict illustrates the obligation plaintiffs face when filing a claim for damages in the international transportation sphere, especially concerning the tight deadlines for filing claims. It also highlights the necessity for passengers to be acutely aware of their rights and the procedural requirements under conventions to safeguard those rights effectively.

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