Caution, Your Civil Liberties May Have Shifted During the Flight: Judicial Interpretations of the Warsaw Convention

Abstract

Courts have interpreted and applied Article 17 of the Warsaw Convention inappropriately by limiting its scope to only physical injuries. Courts have erred by expanding the exclusivity clause of Article 24, thereby preventing domestic laws from providing relief for incidents not fitting the definition of “injury” or for incidents that do not take place on board but take place within the broad range of “embarking” and “disembarking.” Currently, the United States Supreme Court allows air carrier agents to police international flights with unlimited authority free from suit, because courts have narrowly construed accidents and injuries to protect air carriers from liability and deny relief to citizens for legitimate non-physical injuries. The Convention should be amended to allow air carrier liability for damages resulting from willful employee misconduct, including civil rights violations, mental injuries, and emotional distress. The United States should maintain the Convention, but also call for a new protocol at an international conference, as done in the past, to modify liability definitions to appropriately provide comprehensive coverage for international air travel. Alternatively, Congress should legislate greater protection for its citizens by providing multiple means of recovery against air carriers.