Stakes on a plane

Posted on Wednesday, November 4, 2009

International aviation experts convene in Montreal

By Pascal Zamprelli

When American Brandi Wallace awoke from her nap on a flight from Seoul to Los Angeles, she found that the man seated next to her had unbuckled her belt, unzipped her shorts, and was fondling her. Ms. Wallace sued the airline. While the first court to hear the case dismissed it, the U.S. Court of Appeals overturned that decision and ruled in Ms. Wallace’s favour.

Does an airline have a responsibility to protect one passenger from the aggressive sexual advances of another?

This was one of the many topics hotly debated at the Hilton Montreal Bonaventure on Oct. 30 and 31, during International Aviation Liability and Insurance, the latest installment of major annual air law conferences organized by McGill’s Institute of Air and Space Law (IASL). Passenger rights were a principal focus of discussion, as was potential airline liability for accidents, denying boarding, delays, even for euthanizing geese on the runway.

One highlight was a simulated appeal of the Brandi Wallace case before the “U.S. Supreme Moot Court,” conducted by the very same lawyers who argued the case before the Appeals Court.

The key question was the definition of “accident” in the international agreement that governs such cases. Can a sexual assault be considered an accident? In one view, it can simply because its causes are external to the passenger (as opposed to, say, a pre-existing medical condition for which an airline can’t be liable). But a more restrictive interpretation suggests that an accident must be both external to the passenger and related to the operation of the aircraft, which would make claims like Wallace’s much more difficult.

Predictably, the lawyers for the two sides didn’t agree any more than they had in the real courts, but the discussion, which the audience got in on, raised fascinating issues of fairness, justice, and what duties are owed. Panelists and audience members were challenged with one hypothetical after another: What if Brandi Wallace had been a child? What if, instead of an assault, it was transmission of H1N1 flu? Is that an accident for which the airline is liable? Does it make a difference if the passenger showed obvious symptoms?

Ken Quinn, an aviation lawyer in Washington who acted as Chief Justice for the simulation, says that “liability issues with respect to a possible pandemic are being taken very seriously” by airlines these days.

But while the airlines may be understandably anxious about their potential liability, Quinn concedes that such cases, where new issues are emerging and the law is still taking shape, can be exciting. “Any accident litigation raises fascinating and challenging issues that are the dream of any lawyer to argue before the court,” he said.

As for arguing amongst peers, Quinn underscored the value of these conferences and of their host institution. “The IASL is a treasure and a gem of aviation law and academic pursuit,” he said. “It’s a truly outstanding institution that’s had an extraordinary impact throughout the world.”

New York attorney James Kreindler – perhaps the most renowned passenger-rights lawyer in the world, given his past role in representing the victims of the Lockerbie bombing against Libya and his current representation of 9/11 families – agreed that the IASL’s conferences are a great opportunity for the industry’s top players to discuss, debate, and network. “[IASL Director] Paul [Dempsey] has again done a terrific job of bringing together lots of great people,” he said.

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