The Warsaw Convention refers to an international forum through which liabilities, such as accidents or damage of luggage are regulated. The main roles of the Convention entail mandating the carriers to issue tickets to the passengers as well as requiring the carriers to issue baggage checks for verified luggage. According to section 1 article 1,the Warsaw Convention, states that all international carriage of people or goods by aircraft for reward. The requirements of the convention are also prevalent to carriage by aircraft performed by an air transport operations.
In this case, the Smith’s situation lies within the requirements of the Warsaw Convention due to the fact that their round trip would touch down at Canada and then head to Peru. During the trip, the Smith’s trip would stop at Chicago and travel with two carriers. The entire trip through these destinations, puts them under the requirements of the Warsaw Convention. This is based on the fact that section 2 and 3 of the article in the Warsaw Convention state that the expression international carriage refers to any form of carriage agreed upon by the parties, the place of departure as well as the destination, regardless of breakages in the carriage or wrong shipment, are maintained within two High Contracting Parties. Therefore, with these issues appearing within the Warsaw Convention, the Smiths have a viable case against the airline.
Additionally, according to the Warsaw Convention article 17, the qualification of injuries acquired is considered through evaluation of injuries caused by accidents brought about by unexpected events. Similarly, the injuries should have occurred on the body through death or wounds. In this case, the Smiths’s have a viable case because the injuries the acquired qualify as the broken leg occurred as a result of the car accident as it was an unexpected event. However, for Mrs. Smith her situation does not qualify as she acquired minor bumps. This is based on article 25 that states that the carrier is not liable to the provision of the Convention which excludes or limits his liability if the damage occurs as a result of his willful misconduct or by such default on his part. Similarly, with regards to the accident that occurred on the airplane, Mr. Smith’s injuries are qualifying as it is unexpected to encounter turbulence while aboard an airplane without prior warning from the pilot. In addition, the carrier side is liable for the occurrence of the accident in that the pilot willingly ignored the necessary protocol to warn the passengers of an incoming turbulence.
According to the Warsaw Convention, the carrier is not accountable to the provisions of the convention which limit or exclude his liability. This is prevalent in the case where damages occur as a result of willful misconduct or by such default on the part of the carrier. On the other hand, Mrs. Smith does not have a qualifying case against the airline in that the injuries she acquired are not covered in the Warsaw Convention. Consequently, article 17 of the Warsaw Convention requires that the carrier should be held accountable for any damages or injuries as a result of death or wounds of a passenger. This requirement only holds when the accident brings about damages while on-board the aircraft or when undertaking any activities within or outside the aircraft. Therefore, the accident does not fall under the Warsaw Convention as it did not occur in the process of on board the aircraft or any activity involving embarking or disembarking the aircraft.
In addition, the airlines had switched their flights regardless of whether their tickets still read they were headed for Miami. Arguably, despite these incidents the airline managed to schedule them to flights to Denver. While on board the flight to Denver, the passengers experienced severe turbulence at the expense of the captain who was aware that the turbulence were bound to come. The negligence of the captain drove the plane to experience bumpy rides without warning the passengers as well as the crew members (Goedhius, 114).. The Smiths acquired more injuries as a result of the turbulence where Mr. Smith re-injured more injuries to his leg while Mrs. Smith became more traumatized to an extent she swore never to fly again. Evidently, the Smiths have a solid case against the airlines in that damages were acquired as a result of the airlines negligence as well as that of the third party. According to the international treaties and Article 3 section 1 from a to c of the Warsaw Convention, the Smiths were attributed to compensation of more than $85,000 in order to avoid more charges outside court (Goedhius, 114). Article 3, section 1 and 2 states that in the case of any injuries acquired as a result of damage emanating from the third party, or any damages acquired as a result of the carriage should be attributed to the airline. This would in turn lead to a compensation of $ 85,000 in an instance where the airlines seeks to settle the damages through avoiding to indulge in further lawsuits.
According to the facts portrayed in this case, Mr. Smith may file his against the injuries he sustained with consideration that it must be within 2 years from when the accident occurred. This is a requirement maintained within article 29 of the Warsaw Convention, which states that the right to damages shall be abandoned in an instance where no complaints or action is brought within two years effective from the date of arrival at the destination. It also outlines the process through which determination of the period of limitation occurs. However, it is important to note that the issues in this case in accordance to the Warsaw Convention do not apply since this case happened on 2012 and we are currently in 2014. It has been 2 years as stated on article 29.
According to the facts outlined in this paper, Mr. Smith has a viable case against the American airline covered under the Warsaw Convention and without the liability based on two aspects: the willful misconduct of the American airlines and the fact that the Smith’s tickets still indicated they were heading to Miami. In reference to Article 8 section b, c and Article 9 of the Warsaw Convention, the documents or notes used within the air consignment should have the following details:
- the place of departure as well as the destination
- the agreed stopping places on the basis that the carrier may reserve the mandate to change the stopping places where necessary. On matters where the carrier changes these stopping areas, they should not have the effect of denying the carriage their international character. Additionally, in Article 8 section a to q, the carrier shall not be required to meet standards of the convention which exclude or limit their liability.
Additionally, Mr. Smith may opt to file his case with accordance to article 28 that states, the actions that brought about the damages should be forwarded with the plaintiff’s choice, to the territory of one of the High Contracting Parties. This should be conducted either before the Court having jurisdiction where the carrier resides, or at the principal place of business. Similarly, the case should be forwarded to the court where the plaintiff has an establishment contained in the contract or a court having jurisdiction at the destination place. He has 4 options:
- Where the carrier is ordinarily resident in Texas
- Where the carrier has his principal place of business in Texas
- The place where the contract was made. The Smiths bought their tickets online so they should look for the main office for the company, which may be hard to know.
- Place of destination in Canada. Therefore, Mr. smith can chose one of the 3 options to file his case. In this case, my personal recommendation for him would be in Canada since he lives there.
Goedhuis, Daniel. National Airlegislations and the Warsaw Convention. The Hague: M. Nijhoff, 1937. Print.
Grönfors, Kurt. Air Charter and the Warsaw Convention: A Study in International Air Law. The Hague: M. Nijhoff, 1956. Print.