Personal injury and wrongful death claims stemming from international plane crashes, like Asiana Airlines Flight 214, are governed by an international treaty known as the Montreal Convention. That treaty was signed in 1999 but the United States did not ratify it until 2003. It replaced a previous treaty known as the Warsaw Convention and was designed to be more pro-passenger than its predecessor. For instance, one of the main changes was the elimination of the Warsaw Convention’s cap on the amount of damages the passenger or her family could recover. Under the Warsaw Convention (and a private agreement signed by most major air carriers known as the Montreal Agreement of 1966), the most an injured passenger or the family of a deceased passenger could recover was $75,000. That cap could only be avoided if the passenger or her family could prove that the crash had occurred due to the airline’s gross negligence, which was a difficult burden to meet.
Under the Montreal Convention, an air carrier like Asiana Airlines, is strictly liable for the first $138,000 of damages. The airline can avoid paying for claims beyond that limit only if it can prove that the crash was either not due to its negligence or that a third party, i.e., Boeing, was solely responsible for the crash. Because that can be difficult to do, the practical reality has been that the airline cannot limit its liability like it was able to under the Warsaw Convention. Another important change was where the passenger or her family could file the lawsuit.
Under the Warsaw Convention, that lawsuit was normally filed in the airline’s home state or the flight’s final destination. The Montreal Convention added another potential jurisdiction: the home state of the passenger as long as the airline does business there. The Warsaw Convention, which was signed in 1929, had been designed to protect Then-fledgling international airline industry. But, by 1999, that industry was no longer in need of such protection. Those changes noted above and others were made to make the resolution of claims from crashes of international flights more fair to the injured passenger or the family of a deceased passenger.