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In a recent incident aboard an Alaska Airlines Boeing 737 Max, passengers experienced a terrifying moment when a section of the aircraft’s fuselage, known as a “plug door,” suddenly detached, causing explosive decompression mid-flight.

The door plug, essentially a blank section meant for optional door placement, failed, leaving a significant hole in the plane and chaos among passengers as the flight ascended from its origin in Portland, Oregon.

Miraculously, no injuries were reported. If a Canadian had been on board Alaska Airlines Flight 1282, seeking damages would involve navigating a unique legal framework, distinct from conventional personal injury claims.

The Montreal Convention: Uniform Rules and Passenger Protection

Normally, international airline accident claims fall under the Montreal Convention, an international treaty incorporated into Canadian law. The convention aims to establish uniform rules, limit carrier liability, and strike a balance between protecting the air carriage industry and passengers.

Article 17 — Death and Injury of Passengers — Damage to Baggage

  1. The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Compensation Limits and Special Drawing Rights  Up to $230,000 CAD

The Montreal Convention outlines compensation limits using Special Drawing Rights (SDR), an asset created by the International Monetary Fund. SDR is a essentially a unit of account based on a basket of major global currencies.  When converted to Canadian dollars, 128,821 SDR is the equivalent of about $230,000. Passengers and their families are entitled to up to 128,821 SDR or $230,000 CAD, without the need to prove that the airline was at fault.

Strict Liability and the $230,000 Cap – No Fault, No Problem

Under the Montreal Convention’s “strict liability” regime, passengers need only prove their injury and damages, up to the $230,000 cap.  They do not need to prove any fault or negligence on behalf of the airline.

If a passenger’s damages exceed this limit, Canadian courts must determine that the airline was negligent to surpass that cap.

The “Reverse Onus” – Shifting the Burden of Proof

Unlike typical personal injury cases, where it is up to the plaintiff to prove negligence, Article 21 of the Montreal Convention shifts the burden to airlines to prove that they were not negligent in cases where a plaintiff seeks damages exceeding the cap. This “reverse onus” requires airlines to prove they were not negligent or that a third party caused the damages.

Article 21 — Compensation in Case of Death or Injury of Passengers

  1. For damages arising under paragraph 1 of Article 17 not exceeding [128,821] Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.
  2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger [128,821] Special Drawing Rights if the carrier proves that:
    1. such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents;
    2. or such damage was solely due to the negligence or other wrongful act or omission of a third party.

Beyond the Limit – When Damages Exceed $230,000

In cases of severe injuries or dependent relatives’ death, surpassing the $230,000 cap requires proving airline negligence. If the airline fails to prove non-negligence or third-party fault, Canadian courts can award damages exceeding the cap, providing compensation in excess of the Montreal Convention cap.

 

If you or someone you love has been injured while on a flight, contact our Personal Injury Group.

Author(s)

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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