MR. JETSADA CHEEWAHIRUN

Transcription

1 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 BY MR. JETSADA CHEEWAHIRUN A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTERS OF LAWS IN BUSINESS LAWS (ENGLISH PROGRAM) FACULTY OF LAW THAMMASAT UNIVERSITY ACADEMIC YEAR 2016 COPYRIGHT OF THAMMASAT UNIVERSITY

2 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 BY MR. JETSADA CHEEWAHIRUN A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWSIN BUSINESS LAWS (ENGLISH PROGRAM) FACULTY OF LAW THAMMASAT UNIVERSITY ACADEMIC YEAR 2016 COPYRIGHT OF THAMMASAT UNIVERSITY

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4 (1) Thesis Title 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 Author Mr. Jetsada Cheewahirun Degree Master of Laws in Business Laws (English Program) Major Field/Faculty/University Faculty of Law Thammasat University Thesis Advisor Assistant Professor Munin Pongsapan, Ph.D. Academic Years 2016 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 thesis 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 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

5 (2) 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 However, Article 10 of this act mirrors the wording of Article 17 of the Montreal Convention This thesis 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. Keywords: Accident, Passenger s Death or Bodily Injury, Carrier s Liability, International Carriage by Air

6 (3) ACKNOWLEDGEMENTS First and foremost, I would like to thank my thesis supervisor, Asst. Prof. Dr. Munin Pongsapan, whose wise supervision, support, and trust in my work contributed significantly to the completion of this thesis. Most significantly, though, I would like to thank him for sharing with me his tireless enthusiasm and knowledge of the field of law. It was a privilege and an honor to work under his direction. I would like to thank a significant number of other individuals graciously providing me with their valuable time, helpful advice, support, or other professional guidance: Prof. Dr. Amnat Wongbandit, Asst. Prof. Dr. Khemaphoom Bhumithavara, and Asst. Prof. Dr. Nilubol Lertnuwat, members of the examination committee. A very special thanks goes to Miss Saowanee Kaewjulakarn, who introduced me to this program, providing me with informative and significant suggestions regarding the substance of the study. Without her selfless assistance, I really would not know how I could have achieved my Master s Degree. Also, many thanks to my LL.M. 57 classmates, and especially Mr. Atit Chansawang, for their constant friendship, encouragement, and honor carrying me throughout this program. My journey could not have continued or been successful without the steady hand, foresight, guidance, wisdom and patience of my long time partner, Ms. Arunee Sunthornkumarn (Noo Nong). She always made sure that I stayed on course, even when frustrated. Without her dedication and sacrifice, this thesis would not have been possible. Most importantly, I wish to thank my beloved family and their unequivocal support throughout my legal education. Mr. Jetsada Cheewahirun

7 (4) TABLE OF CONTENTS Page ABSTRACT (1) ACKNOWLEDGEMENTS (3) LIST OF ABBREVIATIONS (7) CHAPTER 1 INTRODUCTION Background and Problems Hypothesis Objective of Study Scope of Study Methodology Contribution 5 CHAPTER 2 AN OVERVIEW OF INTERNATIONAL COMMERCIAL 7 CARRIAGE BY AIR 2.1 Introduction The Nature of International Air Transport The Concept of the Liability in International Air Transport The Definition of International Air Transport The Definition of Death and Bodily Injury Death Bodily Injury The Definition of Accident The Interpretation of Accident under International 29 Conventions and Foreign Laws The Warsaw Convention

8 (5) The Montreal Convention The United States The United Kingdom Summary 41 CHAPTER 3 THE EVOLUTION OF THE LAW RELATING TO THE 42 LIABILITY OF AN AIR CARRIER IN THAILAND 3.1 Introduction The System of Air Carrier s Liability in Thailand National Carriage by Air International Carriage by Air The Scope of Liability in Carriage by Air under Thai Law Liability under the Thai Civil and Commercial Code Liability for Wrongful Acts 48 A) National Carriage by Air 48 B) International Carriage by Air Contractual Liability 53 A) National Carriage by Air 53 B) International Carriage by Air The Effect of Terms and Conditions of the Air Carrier s Liability Liability under the Thai International Carriage by Air Act B.E Liabilities under the Thai International Carriage by Air Act B.E Strict Liability System Presumption of Fault System Complete or Partial Exemption from Liability The Problem of Defining the Word Accident Summary 64

9 (6) CHAPTER 4 THE INTERPRETATION OF ACCIDENT : AN ANALYSIS 66 AND RECOMMENDATIONS 4.1 Introduction The Interpretation of Accident The Category of Interpretation of Accident The Liberal Construction The Strict Interpretation The Defined Accident An Unusual or Unexpected Event External to the Passenger The Accident Took Place on Board the Aircraft or in the Operation of Embarking or Disembarking Analyzed Incidents Relating to Accident Recommendations Summary 99 CHAPTER 5 CONCLUSIONS Conclusions 100 REFERENCES 108 BIOGRAPHY 117

10 (7) LIST OF ABBREVIATIONS Symbols/Abbreviations Terms A ATA A&SL Avi. aff d aff d sub nom Air Transport Association of America (USA) Air and Space Law (Netherlands) Aviation Law Reports (USA) affirmed affirmed under the name C CCC CITEJA cert. denied Cir. Civ. Ct. Civil and Commercial Code (Thailand) The Comité International Technique d Experts Juridiques Aériens certiorari denied Federal Circuit Court of Appeals (USA) Civil Court of New York F F. Supp. F. Supp. 2d F. United States District Court Reports, First Series United States District Court Reports, Second Series United States Court of Appeals Reports, First Series

11 (8) F.2d F.3d Fed. Appx. F.R.D. United States Court of Appeals Reports, Second Series United States Court of Appeals Reports, Third Series United States Court of Appeals Appendix Reports Federal Rules Decisions Reports I ICAO IATA IIA IPA International Civil Aviation Organization International Air Transport Association IATA Intercarrier Agreement on Passenger Liability (1995) ATA Provisions Implementing the IATA Intercarrier Agreement (IIA) on Passenger Liability to be Included in Conditions of Carriage and Tariffs (USA air carriers), signed May 16, M MIA MP3 MP4 Agreement on Measures to Implement the IATA Intercarrier Agreement (IIA) (1996) 1975 Montreal Additional Protocol No.3 ICAO Doc (not in force) Montreal Protocol No.4 to Amend the Convention for the Unification of Certain Rules Relating to International

12 (9) Montreal Convention/M99 Carriage by Air Singed at Warsaw on 12 October 1929, as Amended by the Protocol Done at The Hague on 28 September Convention for the Unification of Certain Rules for International Carriage by Air. Done at Montreal, May 28, N NCPO National Council for Peace and Order (Thailand) P PIAL Private International Air Law R rev d rev RID Reversed Review Royal Institute Dictionary (Thailand) S sub nom Stat. Sup. Ct. under the name of United States Statutes at Large Supreme Court

13 (10) U U.S. U.S. Av. R. United States Supreme Court Reports United States Aviation Reports W WL Warsaw Convention/WC29 Westlaw Reports Convention for the Unification of Certain Rules Relating to International Transportation by Air, done at Warsaw, October 12, 1929.

14 1 CHAPTER 1 INTRODUCTION 1.1 Background and Problems Transportation today is greatly critical to economy both nationally and internationally. This is because transportation contributes to economic growth, the volume of trade, investment including the unloading of passengers, both local and international, especially in developed countries; they have developed the transportation system in every mode in order to develop the country s economy and to have the potential of trade competition in world trade activity. Air transport is a mode of transport that is fast, convenient, and secure compared to other forms of transport. Air transport has an increasing role for developing on economic development, trade and investment, particularly air transport between countries or a so called an international air transport. The current technology development has resulted in a potential increase of aircraft. They can transport passengers and goods in a large number from one place to another place within a shorter time than in the past. Although, the technology of aviation and navigation system is developed, it does not guarantee that the accidents will not be occurred. The accident is something that can happen at any time and every place in the world, and those suffering damage from the accidents could be any citizen. As the role and importance of air transport has rapidly increased in the transportation industry, thus whenever the aviation accident happens, there are serious damage to the passengers and third parties caused by the death, personal injuries, and loss of personal property. The seriousness from the accident differs from one case to another. This can be clearly seen in the case of the mysterious, baffling disappearance of Malaysia Airlines flight MH370, or the crash of Malaysia Airlines flight MH17 as part of big bulk missile found at Ukraine, for instance. Since the definition of the term accident which relating to the liability of air carrier in the Warsaw Convention 1929, is not determined in such Convention,

15 2 however, in 1985, the Supreme Court of the United States, which was the State Party of the Warsaw Convention during the time of deciding the case defined an Article 17 accident, as the fact that Saks a passenger involved a claim by that her loss of hearing, caused by the operation of the aircraft s pressurization system, was an Article 17 accident. The Supreme Court reasoned that the hearing loss injury was the passenger s own internal reaction to the normal pressurization of the aircraft cabin. The Court also explained that it was the cause of the injury complained of, as opposed to the occurrence of the injury, that must satisfy the definition of the Warsaw Convention 1929 Article 17 accident. The Court then held that an Article 17 accident was, an unexpected or unusual event or happening that is external to the passenger and does not encompasses an injury caused by the passenger s own internal reaction to the usual, normal, and expected operation of the aircraft. 1 As a result of the Court s decision in Saks, it becomes the established and universally accepted definition of an Article 17 accident, and subsequently, adopted and followed by the courts in other State Parties, and allowed for the flexibly application of the definition to every factual pattern presented in determining whether to impose Article 17 liability on the air carrier. In 1999, the Montreal Convention was conceived, drafted, and adopted to replace the 1929 Warsaw Convention liability system (the Warsaw System) that had governed air carrier s liabilities in the international air transportation for seventy years. The Montreal Convention 1999 is then the International Convention for the new collection rules relating to the international carriage by air, which is appeared in the Warsaw System. The revised provisions are in accordance with the development of the industry of the carriage by air. Also, the liability rules of the 1999 Montreal Convention, particularly the liabilities of the air carrier for passengers death or bodily injury arises from the accident occurring on board the aircraft or in the course of embarking or disembarking, are provided in Article 17 of the Montreal Convention Air France v. Saks, 470 U.S. 392 (1985) [hereinafter Saks].

16 3 According to the Article 10 of Thai International Carriage by Air Act B.E (2015), it mirrors the wording of Article 17 of the Montreal Convention Thus, in case where Thai courts face with the issue of interpreting the term accident, how will they resolve such issue appropriately? This kind of interpreted matter should be concerned whether an accident under the Montreal Convention including Thai law which causing passenger s death or bodily injury on board the aircraft while traveling with international flight, requires some connection with the irregular operation of the aircraft, whether it incorporates medical emergencies including a passenger s previous medical condition, whether it incorporates activities or behavior of fellow passengers such as sexual and other assaults, hijacking or terrorist activity like bomb threat; etc. This thesis will analyze the case law from other jurisdictions and examine how foreign courts have interpreted the provision s scope. Its aim is to support greater consistency between State parties on applying these uniform rules of air carrier s liability. In addition, this thesis will then deal with the airline s liabilities to passengers in case of death or injury during international commercial carriage by air pursuant to the Montreal Convention 1999 including the Warsaw System. In this regards, Article 17 of the Montreal Convention is one of the most important and problematical provisions. It makes the air carrier liable for any damage sustained in case of the death or bodily injury of passengers, provided that the accident causing the death or injury shall take place on board the aircraft. While the trigger for liability is the accident, this term has not been defined in the convention. Rather, it is for national courts to determine whether any particular event constitutes the accident in their view. Since the word is normally used to describe the accident which occurs unintentionally, the use of accident within the convention gives rise to the questions whether certain intentional events fall within the scope of this provision. The courts in various jurisdictions have held, for example, that the injuries arising from passenger health

17 4 issues, hijacking, sabotage, and sexual molestation are all accidents which fall under the ambit of the convention Hypothesis According to Article 10 of the Thai International Carriage by Air Act B.E. 2558, it mirrors the wording of accident under article 17 of the Montreal Convention 1999, which is not clear that how should be defined. The problem is that in the event of a dispute regarding the interpretation of accident which triggers the air carrier s liabilities for passengers death or injury, what criteria should be adopted by Thai Court as the basis of any adjustment to the case. This thesis proposes that the word accident should be interpreted as a narrow approach. 1.3 Objectives of Study This research is intended to study as follows: (A) To consider the problems caused by the failure to provide the definition of the term accident in the Montreal Convention 1999, which makes the air carrier liable for any damage sustained in the case of the death or bodily injury of passenger, by studying the interpretation of foreign courts. (B) In order to find the ways to interpret and enforce the law in a reasonable approach to the problem of interpretation of the Court of Thailand in the near future. (C) To provide the criteria which are required to be used with those issued in determining the accident. (D) In order to make the clear rules and to maintain the same direction of the court decisions. 2 Thotsaporn Leephuengtham, อ บ ต เหต ท,ท าให สายการบ นต องร บผ ดต อผ โดยสาร ในกรณ ตายหร อบาดเจ บ, The Intellectual Property and International Trade Law Journal, Judge office, The office of the Judiciary, Thailand, 2, (2542).

18 5 To constitute the development of the air transport and the unity of using the Convention and the laws of Thailand. 1.4 Scope of Study The scope of the study is particularly the interpretation of accident which triggers the air carrier s liabilities for passengers death or injury under the Thai International Carriage by Air Act B.E.2558, Thai Civil and Commercial Code, about the Liability for Carriage of Passengers and Liability for Wrongful Acts, the Convention for the Unification of Certain Rules Relating to International Carriage by Air, which was signed at Warsaw on 12 October 1929 (Warsaw Convention), the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 28 May 1999), and the United States and the United Kingdom court decisions. 1.5 Methodology This research is a study analyzed by document research through the information from documents both in Thai and foreign languages, such as the Thai Civil and Commercial Code, Warsaw Conventions 1929, Montreal Convention Also, it is the comparative study regarding the rules and the interpretations of the word accident appeared in each document. Moreover, the research will study on the issue, theoretical concepts, law journals, articles, thesis, books, textbooks, and various websites. The research will also analyze the conclusions and recommendations by the provisions of international law, foreign law, and Thai and foreign court decisions. 1.6 Contribution (A) To deeply understand the development of international rules on the carriage by air, and the development of the international convention governing the liabilities of the air carriers for damages.

19 6 (B) To ensure consistency of practice relating to liability of international carriage by air. (C) To deeply understand the issue of the interpretation and the conclusion according to the rules of the Convention relating to the international carriage by air, including foreign court decisions in case of the interpretation of accident. (D) To make the authority to enforce the laws concerning Liability of International Air Carrier, air transport industry as a whole will benefit and development will continue to be made for more efficient services to passengers. (E) To propose the appropriate criteria in the interpretation of accident under Article 10 of the Thai International Carriage by Air Act B.E

20 7 CHAPTER 2 AN OVERVIEW OF INTERNATIONAL COMMERCIAL CARRIAGE BY AIR 2.1 Introduction In a fast-growing industry like aviation today is advantageous, convenient and moderately low-priced, giving more travelers to go to more places than ever before. Also, it is a major kind of transportation, which is significant to economic and social development of each country. Moreover, the air travel is presently a normal and central part of cutting edge life. 3 However, one of the major effects of this development is that in-flight disturbance by and amongst travelers and/or air carrier has turned out to be increasingly normal. Additionally, the aviation industry is playing more important role in the daily life, and the development of air transport infrastructure of the country has been developed rapidly. The growth of this kind of industry can also be seen from the number of aircraft registered as commercial aircrafts around the world, which will be increased steadily; for example, in 1998, the US register of Civil Aircraft reached more than 500,000 aircrafts. 4 Even back in the 1920s, the main purpose of Private International Air Law (PIAL) was to create the uniformity of law across jurisdictions. Since the aviation linked many lands with different languages, customs, and legal systems, it would be desirable to establish the inception a certain degree of uniformity. 5 This means that the 3 Suzi T. Collins & John Scott Hoff, In Flight Incivility Today: The Unruly Passenger (1998), Air & Space L., International Register of Civil Aircraft (IRCA), The aim of IRCA is to provide public and private aeronautical entities with an international database comprising of harmonized and substantial information on national aircraft fleets, in order to ease data access and exchange worldwide. < login.1htm>, accessed 31 March Andreas Lowenfeld & Allan Mendersohn, The United States and the Warsaw Convention (1967) Harvard Law Review 497, 498.

21 8 purpose of the founders of this field was to build a liability system that all cases would be solved identically thereunder regardless of the liability source. In addition, another purpose of PIAL was to narrow the potential liability of the air carrier in case of accidents. Later, after World War I, there was the concept in the law of international carriage by air due to the significant role of the aircraft in the international carriage by air and the carriage of passengers, baggage or goods as previously mentioned. However, the damage which was definitely difficult to avoid, and the aviation industry were still in its early stages that needed to cover the rights and responsibilities of the carrier toward the passenger. Moreover, the rules applied in each country were different depending on the laws of that country. In most cases, they were developed from the law of transportation by land, transportation in maritime, or the requirements set out in the agreement, including the problem in terms of choice of law which would be applied to the conflict of law. These differences resulted in the instability and confusion of the case solution. According to the above issues, the International Air Traffic Association (IATA), the legal committee of the association, has set the layout and rules of the carriage to be standardize in the carriage by air. Moreover, the air carriers adopted these rules to set forth the conditions in the contract of carriage by air. However, the conditions that were set forth had been differently interpreted in the courts of many countries, involving the international carriage by air. This then led to the fatal problem of both passengers and airlines in terms of making the compensation. Thus, the international standard regulations were necessarily into effect. Consequently, in 1925, the Conference International de Droit Privé Aérien (CIDPA), which was held in Paris by the initiative of the French government, appointed a commission of legal experts to set up international air, or it was called the Commitée Internationale Technique d Experts Jurisdiques Aériens (CITEJA). They were responsible for the implementation of the Convention, and to study the possibility, including preparing for the preparation of the Convention for the rules concerning the carriage by air which led to the preparation of the Convention to collect certain rules

22 9 relating to international carriage by air, as it was called the Warsaw Convention Up until then, it had been periodically amended by plenty of Protocols and Conventions. Eventually, the 1929 Warsaw Convention, which had been conducted to date, has been adopted in replacement of the most recent contribution to the unification of law in the field of international carriage by air, and such contributed instrument was called the Montreal Convention The details of which will be discussed in this chapter. 2.2 The Nature of International Air Transport The international air transport is a noteworthy industry in its own particular fit, and it also arranges significant inputs into broader economic development, political, and society of every nation. Additionally, the air transport can encourage the region s economic development or specific industry, for example, tourism. In any case, there must be the idle interest for the merchandise and services offered by the region or industry. Notwithstanding, the absence of air transport can deny proficient extension, and it can likewise prompt the unseemliness or abundances in supply. 6 Even though the air transport is greatly important to the country development, there is the accident arising from travelling by the aircraft which can cause enormous loss. Therefore, some important issues are necessary to understand in order to deal with the case of accident which may occur. The significant issues, for instance, are the concept of the liability in the carriage by air, the definition of international air transport, the definition of death and bodily injury, and finally the most significant term, the accident, which will be further discussed in details The Concept of the Liability in International Air Transport Before the latest instrument in terms of international carriage by air, which is called the Montreal Convention 1999, is entered into force, upon referring to the 6 Ken Button, The Impacts of Globalization on International Air Transport (Global Forum on Transport and Environment in a Globalizing World November 2008, Guadalajara, Mexico Activity, 5 (2008).

23 10 system of liability in the international carriage by air, the Warsaw Liability System is always concerned by most lawyers. Such system has evolved from the Warsaw Convention However, during the time the Warsaw Convention 1929 was being applied, there were many Protocols and Conventions which were amended and aimed to improve the provisions of the Warsaw Convention 1929 up to date and to be consistent with the changing economy and social conditions. Consequently, there were totally eight editions of the system consisting of the Warsaw Convention and Protocols. 7 The Warsaw Convention 1929, which its full name is the Convention for The Unification of Certain Rules Relating to International Transportation by Air, was 7 The Warsaw System consists of the Conventions and the Protocols as follows: (1) The Convention for the Unification of Certain Rules relating to International Carriage by Air Signed at Warsaw on 12 October 1929 (2) Protocol to Amend the Convention for the Unification of Certain Rules relating to International Carriage by Air Signed at Warsaw on 12 October 1929, signed at The Hague on 28 September 1955 (3) Convention Supplementary to the Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air Performed by A Person Other Than the Contracting Carrier, signed at Guadalajara on 18 September 1961 (4) Protocol to Amend the Convention for the Unification of Certain Rules relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as amended by the Protocol done at The Hague on 28 September 1955 (5) Additional Protocol No.1 to Amend the Convention for the Unification of Certain Rules relating to International Carriage by Air Signed at Warsaw on 12 October 1929, signed at the Montreal on 25 September 1975 (6) Additional Protocol No.2 to Amend the Convention for the Unification of Certain Rules relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as amended by the Protocol Done at The Hague on 28 September 1955, signed at the Montreal on 25 September 1975 (7) Additional Protocol No.3 to Amend the Convention for the Unification of Certain Rules relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as amended by the Protocol Done at The Hague on 28 September 1955 and at Guatemala City on 8 March 1971, signed at the Montreal on 25 September 1975 (8) Additional Protocol No.3 to Amend the Convention for the Unification of Certain Rules relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as amended by the Protocol Done at The Hague on 28 September 1955, signed at the Montreal on 25 September 1975

24 11 signed at Warsaw, Poland, on October 12, 1929, and entered into force on February 13, This Convention is commonly known and referred to the Warsaw Convention or simply WC29. Thus, hereinafter is called the Warsaw Convention The main feature of the 1929 Warsaw Convention is the limitation of the air carrier s liabilities for passengers death or bodily injury to the sum of 125,000 French Poincare Francs, or approximately US$ 8,291.87, without proving that the accident causing the death or bodily injury is the result of the willful misconduct of the air carrier. 9 Another word is that the Warsaw Convention 1929 is the template that defines the rules concerning international carriage by air, which is resulted by a compromise of the interest protection between the carrier and passengers. Furthermore, the Convention applies the principle of the presumption of carrier s fault and reversed burden of proof. 10 This means that the Convention limits the responsibility of carrier in order to exchange the burden of proof on the issue of liability and negligence of the carrier in case that the passenger claims for the compensation over those provided by the Warsaw Convention as mentioned previously. In other words, the burden of proof shifts to the passengers or their heirs instead. Another key aim of the Warsaw Convention 1929 is in order to allow the carrier to evaluate the risk of carriage, reserve their assets, or provide the insurance therefor. However, the passengers are guaranteed to get paid the exact amount of damages as provided by the Warsaw Convention 1929, which is limited to the sum of 125,000 francs per passenger in case of their death or wounding, or any other bodily injury. 11 Nevertheless, if the passengers do not satisfy therewith, they then can provide 8 George N. Thompkins, Jr., Liability Rules Applicable to International Air Transportation as Developed by the Courts in the United States: From Warsaw 1929 to Montreal 1999, 1 (2010). 9 ibid. 10 Paul S. Dempsey, and Michael Milde, International Air Carrier Liability: The Montreal Convention 1999 (2005), Canada: McGill University Center for Research in Air & Space Law, Warsaw Convention 1929, Art. 17, 22.

25 12 the insurance for those risks. This will result in reasonable level of services and responsibilities. 12 Additionally, the Warsaw Convention 1929 classifies the rules on liability based on fault into three types, namely, the passenger death or injury, the damage of baggage, and the damage of carriage caused by delay. However, this section will be discussed only in case of the passengers death or injury. In light of passengers death or injury, the carrier is liable therefor if the accident causing the damage happens on board the aircraft or on the operation of embarking or disembarking. 13 However, there is a trouble in applying this provision because there is no any definition of the most significant term accident. However, the US Court Decision 14 has decided and ruled in the judgment that becomes a fundamental basis in defining of the term accident, stating that an unexpected or unusual event or happening that is external to the passenger. Thus, that is the unexpected or abnormal event happening outside the passenger. Apart from such definition of the word accident, it could cover terrorist activities or hijacking, but it does not include the death or injury arising from the passengers themselves. The term accident and such Court decision will be analyzed in the deep details later on. The Warsaw Convention, however, initially presumes that the carrier is fault. The carrier shall be exempted from liability if he proves that he and his agents have taken all necessities to avoid the damage, or it is impossible that he or his agents has taken such measures, 15 or the damage is caused by the suffered passenger themselves, or the damage is caused by the negligence of the passenger Somchai Phiputtawat, การจ ดท ากฎหมายภายในรองร บอน ส ญญามอนตร ออล ค.ศ.1999 (Faculty of Law. Tham-masat University) 6; Prasert Pompongsuek, ความร ท,วไปเก,ยวก บกฎหมายอากาศระหว างประเทศ (2002) Warsaw Convention 1929, Art Saks (n 1). 15 Warsaw Convention 1929, Art Warsaw Convention 1929, Art. 21.

26 13 It has to be noted that, if the carrier does not know the cause of the accident, then the necessary measures to prevent the accident cannot be decided. This makes the transporter cannot demonstrate that he has given the vital measures to maintain a strategic distance from the harm, or it is unthinkable that he has accommodated such measures. As a result, the carrier s responsibility is burdensome. Last but not least, the Warsaw Convention determines that the air carrier is liable for damage that occurs in case of accident causing death or injury of passengers does not exceed 125,000 francs per passenger. However, the carrier and passengers are able to contractually require the carrier to be liable for any loss that occurs in various cases. The number of the damages provided by such contract can be higher than those provided by the Convention. Furthermore, the carrier may also be liable for more than liability limits if the injured party proves that the damage is caused by a willful misconduct of the carrier itself. 17 Nevertheless, it is on the grounds that the issues identifying with the liability of the carrier for the damage caused to passengers bring about the challenges in the implementation of the Warsaw framework for a long time because of the contention in the points of confinement of obligation for damage created to passengers among the developed countries which want to protect the interest of their people, and the developing countries that want to protect the aviation industry in the country. Such conflict is the source of the several Protocols leading to the amendment of the Warsaw Convention Another essential point is that it contributes the complexity of the structure of liability under the Warsaw Liability System. This shows the lack of the unified system of the 1929 Warsaw Convention. In spite of this, the most important aspect of the Warsaw system is the establishment of the laws unity regarding the international carriage by air. Even though there has been an attempt to solve the complex structure of liability under the Warsaw Liability System throughout the period of time, such efforts have not been achieved. As a result, the Warsaw Convention 1929 and Hague Protocol 1955 in respect of the liability ceiling for damage caused to the passengers are hardly 17 Warsaw Convention 1929, Art. 25.

27 14 recognized by the courts and the airlines of developed countries, which are the parties to the Convention and the Protocol. Yet, the International Civil Aviation Organization (ICAO) has compiled the guidelines listed in the Convention and the Protocol in the Warsaw Convention both effective and ineffective ones in order to improve and develop the new Convention. The objective is to apply those in replacement of the existing Convention and the Protocol included in the Warsaw system. Eventually, the Warsaw Convention 1929 has been replaced by the complied version Convention, which is the Convention for the Unification of Certain Rules for International Carriage by Air or the Montreal Convention The Montreal Convention 1999 was resulted by the conclusion of the debate, discussion, consultation, drafting, and redrafting of the new Convention for the Unification of Certain Rules for International Carriage by Air, which was adopted on May 28, This was held by the International Civil Aviation Organization (ICAO), and was attended by accredited representatives of 188 States and 11 international organizations, including the International Air Transport Association (IATA), as Observers. 19 In addition, the 1999 Montreal Convention was conceived, drafted, and adopted to replace the 1929 Warsaw Convention liability system (the Warsaw System) that had governed air carrier s liabilities in the international air transportation for seventy years. 20 It has to be noted that, the inception of the Montreal Convention 1999, which was introduced by member of IATA, adopted the IATA Intercarrier Agreement on Passenger Liability (IIA), and the Assembly of ICAO directed the ICAO Council to continue its on-going efforts to modernize the Warsaw System as the matter of priority. 21 According thereto, the Secretariat Study Group was established and assigned to perform the duty on assisting the Legal Bureau of ICAO in the development of the 18 Montreal Conference Minutes, Thompkins, Liability Rules Applicable to International Air Transportation as Developed by the Courts in the United States: From Warsaw 1929 to Montreal 1999 (n 8) ibid The Work Preceding and Leading to the Montreal Conference of May (1999)

28 15 existing instrument, within the ICAO framework, of accelerating the reform of the Warsaw System. According to the recommendation in the conclusion of the Study Group which can be summarized that, principally, that any new instrument should include: the strict liability concepts for passengers death and bodily injury embodied in the IIA; 22 no change in the key terms of the Warsaw System Liability rules, especially accident and bodily injury, and particularly important that there is no definitions of these key terms as incorporated into a new Convention, so as to preserve the existing body of the Warsaw System jurisprudence. 23 Thus, it can be said that the rules of interpretation of the key terms such as death, bodily injury, and accident occurred during the use of the Warsaw Liability System, which are ruled and guided by the Court of the State Parties of the Warsaw Convention 1929, could be used as the criteria in the future cases. The Montreal Convention 1999 is then the International Convention for the new collection rules relating to the international carriage by air, which is appeared in the Warsaw system. The revised provisions are in accordance with the development of the industry of the carriage by air. The liability rules of the 1999 Montreal Convention, particularly the liabilities of the air carrier for passengers death or bodily injury arises from the accident occurring on board the aircraft or in the course of embarking or disembarking, are provided in Article 17 of the Montreal Convention There is no change in the substantive wording of Article 17 in the Montreal Convention. 24 As a consequence, the former court judgments defining and applying the 22 The Intercarrier Agreement on Passenger Liability (IATA) (1995) (IIA) and the subsequently (1996) adopted IATA Agreement on Measures to Implement the IIA (MIA), while effectively implementing revisions of the Warsaw System Liability rules relating to liability for passenger death or bodily injury and the applicable limitations of liability, as to the signatory and implementing air carriers, did not have the lasting force of laws, as a participating carrier could chose to withdraw from the IIA and MIA at any time, on notice to the other participating air carrier. 23 The Work Preceding and Leading to the Montreal Conference of May (1999) Thompkins, Liability Rules Applicable to International Air Transportation (n 8) 123.

29 16 provision of Article 17 of the 1929 Warsaw Convention shall have equal effect in case of the passenger s claim in the court applicable by Article 17 of the Montreal Convention Apart from the principle of the Article 17 as abovementioned, the Montreal Convention has also adopted the Two-tier System of Liability which is recognized and enforced in the international air transport industry with the passengers in the event of death or injury that are divided as follows: The First tier applies the Absolute Liability in the case of the claim for compensation of up to 113,100 SDR. 25 In this case, the carrier shall be liable for any damage and loss, without any defense as previously stipulated in the Warsaw system. However, the carrier may be released from the liability fully or partially if the carrier proves that the damage is occurred as a result of the action or omission by negligence, or unlawful claims, or other person entitled to claim damages. 26 The Second tier applies the Presumed Fault to use in the event of the claim for compensation in excess of 113,100 SDR. In this case, the carrier shall not be liable for the compensation in excess of 113,100 SDR if the carrier proves that the damage is not occurred by the action or omissions committed by negligence, or unlawful acts, or its employees or their representatives, or the damage which is occurred by the action, or omission, or negligence, or other wrongful act of a third party. 27 Additionally, the Montreal Convention 1999 has created the new addition principle of the Warsaw system, which is the insurance mandatory by requiring that the States Parties shall be obliged to force the carrier to arrange insurance cover liabilities under this Convention. Moreover, the state party shall have the right to require the carrier to operate those into its territory. The carrier shall present that he has already 25 The limit has revised to be 113,100 by the International Civil Aviation Organization (ICAO), Revision of limits of liability under the Montreal Convention of 1999 Notification of effective date of revised limits, Ref.: LE 3/ /87, 4 November Montreal Convention 1999, Art Montreal Convention 1999, Art. 21 (2).

30 17 made such insurance sufficiently. However, practically, the airlines in many states have already been enforced to provide the insurance. Therefore, such criteria bring what happens in practice to be mentioned only in the Convention. 28 In summary, the Warsaw Convention 1929 and the Montreal Convention 1999 set forth the basis for air carrier liability for passengers death or injury caused by the accident occurring on board the aircraft or in the course of embarking or disembarking, in accordance with the key Article 17 of both Conventions. However, the basis on determining the liability of the air carrier for passenger death or bodily injury is not defined in the Conventions. Although the substantive terms of Article 17 in the Warsaw Convention are not changed when Article 17 of the Montreal Convention is drafted, some plain language changes are adopted without the intention to change the substantive meaning of the key terms relating to the air carrier s liabilities for passengers death or bodily injury. Thus: 29 (1) the carrier shall be liable for damage sustained in the Warsaw Convention, becomes, in the Montreal Convention, The carrier is liable for damage sustained; (2) in the event of becomes, in the Montreal Convention, in the case of; (3) the death or wounding of a passenger or any other bodily injury suffered by a passenger becomes, in the Montreal Convention, death or bodily injury of a passenger; (4) if the accident causing the damage so sustained becomes, in the Montreal Convention, upon condition only that the accident causing the death or injury. Consequently, Article 17 of the Warsaw Convention 1929 and Article 17 paragraph 1 of the Montreal Convention 1999, as mentioned previously, which are involved with the liabilities of the air carrier, are based on three criteria, namely 1) accident 2) accident that is occurred on board the aircraft or in the course of the 28 Duangjai Sinthusung, ระบบความร บผ ดในการร บขนระหว างประเทศ (Personal Documents Academic Part of the Court of Administration of Justice, Class 11, College of Justice, the Judiciary 2008) Compare, Warsaw Convention Art. 17 with Montreal Convention Art.17.

31 18 operation of embarking or disembarking, and 3) causes the death or injury. If all three conditions are met, the carrier is liable for damage that occurs. Since the Article 17 paragraph 1 of the Montreal Convention 1999 is similar to Article 17 of the Warsaw Convention 1929, the trial judge shall interpret its meaning according to the wording of Article 17 of the Warsaw Convention 1929, so it can be taken as the guideline to deploy to the case occurred with Article 17 of the Montreal Convention Therefore, the meaning of international air transport, death and bodily injury, and accident will be discussed in depth in the next following sections. More importantly, the interpretation of the word accident under the related Conventions, the U.S. and the U.K. laws will also be considered in depth The Definition of International Air Transport The meaning of international transportation 30 and international carriage 31 is determined by the Warsaw Convention 1929 and the Montreal Convention 1999 that any transportation or carriage 32 in which, according to the agreement made by the parties thereto, that are, the passenger as the one party and the air carrier as another party, the places of departure and destination are in two State Parties to the Convention, or are in one State Party to the Convention or not. The Warsaw Convention 1929 is the Convention applied to all international carriage of persons, luggage, or goods performed by the aircraft for reward, and it is equally applied to gratuitous carriage by aircraft performed by the air transport undertaking. 33 In this regard, the Convention has governed the definition of 30 Warsaw Convention 1929, Art. 1 para Montreal Convention 1999, Art. 1 para Warsaw Convention 1929 uses the term international transportation and the Montreal Convention 1999 uses the term international carriage. As it intended definition of the terms is the same, the term international transportation will be used interchangeably with the term international carriage. 33 Warsaw Convention 1929, Art. 1 para. 1.

32 19 international transport as any transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there will be a break in the transportation or a transshipment, are situated either within the territories of two States Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within the territory subject to the sovereignty, suzerainty, mandate or authority of another power, even though that power is not the party to this convention. 34 Multiple stops on multiple carriers constitute international travel if the segments are regarded by the contracting parties as a single operation of undivided transportation. 35 Upon considering the meaning specified in the Warsaw Convention, the guidelines can be concluded that, the event of international air transport shall be the case that; 1) The place of departure and the place of destination are located in different countries, or 2) If the place of departure and the place of destination are located in the same country, the stopover in another country shall be in order to trade or transport the passengers or goods. However, whether the international transport by air or not, it is not necessary that the carriage will need to fly across the borders, but the important matter is the intent of the parties. Thus, in case of the accident causing the aircraft landing or fall within the boundaries of the place of departure, it is still considered as the international air transport. There is the case which should be considered as the international transport; that is, it must be transported by air. In case that the party to the contract of the carriage by air, which then turns out to be the carrier, needs to cancel the flight, and the reason thereof may be due to the weather or disruption of the engine, and then the passengers are needed to be transported by cars or train instead, such transportation remains the international transport. However, such carriage is not considered as international carriage by air under the meaning of the Convention. Thus, flying through the airspace of any foreign country without the break is not considered 34 Warsaw Convention 1929, Art. 1 para Spencer H. Bromberg, Aviation Law- International Transportation Under the Warsaw Convention-Ninth Circuit Holds That a Traveler's Independently Purchased Domestic Flight in A Foreign Nation Was Not A Single Operation of International Trav. [2005] 70 J. Air L. & Com. 277.