By David E. Rapoport
The Bahamian government may find it difficult to answer questions the families of passengers killed in last month’s seaplane accident are likely to ask once they realize the Bahamas failed to file an important document that could affect their legal rights. At stake is whether the arbitrary damages caps set forth in the Warsaw Convention, a Treaty that came into force in the United States in 1937, will interfere with the families’ legal claims.
The easiest way for the families to defeat the Warsaw Convention damages cap (usually a meager $75,000 per family) would be to prove the new Montreal Convention applies. The Montreal Convention creates a modern and humane legal system without arbitrary damages limitations, a major improvement for the families of airplane victims over the Warsaw Convention system the Montreal Convention was intended to replace. For a more detailed comparison and historical perspective on these important international treaties, see David E. Rapoport and Hans Ephraimson-Abt, A 73-Year Odyssey: the Time Has Come for a New International Air Liability System (pdf), Issues in Aviation Law and Policy (CCH 2002).
Both the United States and the Bahamas signed the Montreal Convention on May 28, 1999. But signing the Treaty alone may not have been enough. At issue is whether the Montreal Convention was “in force” between the United States and the Bahamas on December 19, 2005, the day of the airplane crash.
According to its terms, the Montreal Convention first came into force 60 days after the thirtieth country filed “instruments of ratification, acceptance, approval or accession” with the International Civil Aviation Organization (“ICAO”). The United States and other countries filed the required documents and the Montreal Convention came “into force” in the United States on November 4, 2003. However, according to the latest information posted by ICAO on its website, the Bahamas has not yet filed an instrument of ratification as required by Article 53 of the Montreal Convention and, therefore, the Montreal Convention may not have been “in force” in the Bahamas on December 19, 2005, when the Chalk’s Ocean Airways G73T airplane crashed. Why the Bahamas failed to promptly file an instrument of ratification, and what can be done about it now, are important questions for the Bahamian government and Chalk’s’ Ocean Airways’ insurers to answer.
For reasons sadly illustrated by the Chalk’s case, it remains vitally important for the world’s governments to promptly complete all of the necessary steps to bring the Montreal Convention into force. The Montreal Convention is currently in force in only 69 countries. If the new Treaty is to have its intended effect, more countries need to ratify, accept, approve or accede to it, as more fully discussed in the three-year-old 73-Year Odyssey (pdf) paper (written before the Montreal Convention was in force anywhere because only 22 countries had filed instruments of ratification, acceptance, approval or accession by the date of publication, whereas 30 filings were required).
The United States government and the Department of Transportation (“DOT”) may also have some difficult questions to answer. It has been the leading proponent of doing away with the Warsaw Convention’s arbitrary and unfair damages limitations for more than 40 years. When the United States could not accomplish this through a new treaty after many years of effort, in 1995, the United States helped broker an “Intercarrier Agreement” that accomplished for the passengers of air carriers that agreed to be bound by it advances similar to those later set forth in the Montreal Convention. While the Intercarrier Agreement has governed most of the international air disaster cases in recent years (such as Swissair Flight 111, EgyptAir Flight 990 and Alaska Air Flight 261), the operator of the seaplane that crashed does not appear on the latest published list of signatories to the Intercarrier Agreement. This is surprising, since the DOT intended widespread acceptance of the Intercarrier Agreement by air carriers operating in the United States. If Chalk’s Ocean Airways failed to sign the agreement, and what can be done about it now, are questions for the United States to address, if the Montreal Convention does not apply and Chalk’s’ insurer refuses to at least be bound by the Intercarrier Agreement.
The Warsaw Convention damages limitations have never been absolute. If the Warsaw Convention ends up applying in the Chalk’s case, and the insurers and governments involved fail to avoid this result, the low damages cap can be defeated in court, but only if the passengers’ families prove the airplane crash was either a result of willful misconduct by Chalk’s, or the fault of someone other than Chalk’s and its employees. This is so because the Warsaw Convention only protects air carriers, and only those who are not guilty of willful misconduct. Over the years, aviation litigation over such issues has resulted in substantial delays and less than adequate damages recoveries in far too many cases, as documented in the 73-Year Odyssey paper.
Another question is whether the Chalk’s aviation litigation case should proceed as a class action. However, almost every court confronted with a motion to certify a class action in an air disaster case has refused to certify the class. E.g. McDonnell Douglas Corporation v. United States District Court for the Central District of California, 523 F.2d 1083 (9th Cir. 1975) (certification of class action in Paris air disaster case found to be a “clear abuse of discretion”); In re Air Crash at Sioux City Iowa on July 19, 1990, 1990 U.S. Dist Lexis 181 (N. Dist. Ill. 1990); In re Air Crash Disaster Near Honolulu, Hawaii, 792 F. Supp. 1541 (N.D. Cal. 1990). Courts have found class actions unsuitable in aircraft disaster cases for several reasons. One very important one is that aggrieved families have a strong motivation to control their own aviation litigation, including the freedom to begin when they choose, with experienced attorneys of their choice.
Rapoport Weisberg & Sims P.C. is a personal injury law firm based in Chicago, Illinois. The personal injury attorneys at Rapoport Weisberg & Sims P.C. have achieved multimillion-dollar verdicts and settlements for individuals with lawsuits arising from medical malpractice, product liability, semitruck and motor vehicle accident, workplace injuries and construction accident in Illinois and Wisconsin. Rapoport Weisberg & Sims P.C.’s premier aviation negligence lawyers represent victims of commercial and general aviation disasters nationwide.