THE INTERPRETATION OF “ACCIDENT” WHICH TRIGGERS AN AIR CARRIER’S LIABILITY FOR PASSENGERS’ DEATH OR INJURY UNDER THE THAI INTERNATIONAL CARRIAGE BY AIR ACT B.E. 2558
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Abstract
Hundreds of millions of people participate in air travel each year and, despite the proliferation of airlines, air routes, and tourist destinations, it is by far the safest way to travel. At the same time, the risk of accident remains with the air transportation industry.
This article examines the term “accident” which triggers an air carrier’s liability for a passenger’s death or injury in international carriage by air in relation to significant legal instruments, namely, the Warsaw Convention 1929 and the Montreal Convention 1999. Article 17 of each Convention is one of the most important and problematic provisions, resulting in an airline’s liability when damage is sustained in the case of the passenger’s death or other bodily injury. This implies that the accident causing the death or injury has taken place onboard the aircraft or in the operation of embarking or disembarking.
Yet, the definition of the word “accident” under Article 17 is not determined in any convention. Rather, it is the duty of the national courts to define what circumstances constitute an “accident” in their point of view. There is an abundance of evidence arising from cases involving the term “accident” that have been held by courts in various jurisdictions, for instance, in the case of Air France v. Saks, 470 U.S. 392 (1985). In this case, the United States Supreme Court held that in Article 17 “accident” is, “an unexpected or unusual event or happening that is external to the passenger and does not encompass an injury caused by the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.” Consequently, this has become the established and universally accepted definition of “accident” of Article 17 and, subsequently, adopted and followed by the courts in other state parties. Nevertheless, it can be questioned whether the “accident” requires there be some connection with the irregular operation of the aircraft; whether it incorporates medical emergencies including a passenger’s previous medical condition; or whether it incorporates activities or behavior of fellow passengers such as sexual and other assaults, hijacking or terrorist activity like a bomb threat, etc.
Thailand enacted the law which is called “The Thai International Carriage by Air Act B.E. 2558.” However, Article 10 of this act mirrors the wording of Article 17 of the Montreal Convention 1999. This article will then analyze case law from other court jurisdictions and examine how those courts have interpreted the term “accident.” This will bring about significant consistency in applying laws imposing air carrier’s liability.
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This article examines the term “accident” which triggers an air carrier’s liability for a passenger’s death or injury in international carriage by air in relation to significant legal instruments, namely, the Warsaw Convention 1929 and the Montreal Convention 1999. Article 17 of each Convention is one of the most important and problematic provisions, resulting in an airline’s liability when damage is sustained in the case of the passenger’s death or other bodily injury. This implies that the accident causing the death or injury has taken place onboard the aircraft or in the operation of embarking or disembarking.
Yet, the definition of the word “accident” under Article 17 is not determined in any convention. Rather, it is the duty of the national courts to define what circumstances constitute an “accident” in their point of view. There is an abundance of evidence arising from cases involving the term “accident” that have been held by courts in various jurisdictions, for instance, in the case of Air France v. Saks, 470 U.S. 392 (1985). In this case, the United States Supreme Court held that in Article 17 “accident” is, “an unexpected or unusual event or happening that is external to the passenger and does not encompass an injury caused by the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.” Consequently, this has become the established and universally accepted definition of “accident” of Article 17 and, subsequently, adopted and followed by the courts in other state parties. Nevertheless, it can be questioned whether the “accident” requires there be some connection with the irregular operation of the aircraft; whether it incorporates medical emergencies including a passenger’s previous medical condition; or whether it incorporates activities or behavior of fellow passengers such as sexual and other assaults, hijacking or terrorist activity like a bomb threat, etc.
Thailand enacted the law which is called “The Thai International Carriage by Air Act B.E. 2558.” However, Article 10 of this act mirrors the wording of Article 17 of the Montreal Convention 1999. This article will then analyze case law from other court jurisdictions and examine how those courts have interpreted the term “accident.” This will bring about significant consistency in applying laws imposing air carrier’s liability.