The Montreal Convention is a multilateral treaty that comprehensively regulates international air carriers. Specifically, Article 17 of the treaty allows passengers to recover against air carriers for injuries or deaths on international flights, so long as certain requirements are met. In Air France v. Saks, the Supreme Court held that “accident”—a controlling term in Article 17—describes an event that is external to the passenger and “unexpected or unusual.” Last year, in Moore v. British Airways PLC, the First Circuit purported to identify a split over what this language means. According to Moore, there are courts who (correctly) gauge whether an event is unexpected or unusual from the perspective of an airline passenger with ordinary experience in commercial air travel (an objective standard that I will call the Reasonable Passenger Approach). On the other hand, there are courts who (incorrectly) determine whether an event is unexpected or unusual from the perspective of the airline industry, using industry norms and customs as guides (a standard I will call the Industry Approach).
In this Comment, I will explain why the standard endorsed by the First Circuit in Moore muddies the waters and how a more holistic, totality-of-the-circumstances approach (the Holistic Approach) offers a better rubric for Article 17 “accident” analyses. Given the recency of the Moore case, my goal in this Comment is to provide timely insight on its blind spots while offering an approach that might rescue Moore from a legacy of confusion.
Elan Wilson, Navigating Through Cloudy Skies: The Montreal Convention & Article 17 “Accidents” Post-Moore,
J. Air L. & Com.