Thursday, July 11, 2013
During a conversation about Asiana Flight 214 earlier this week the question was raised whether passengers would receive advance payments or have to wait for their claims to be settled or litigated. I believe the question to have been prompted by what I consider a misinterpretation of Article 28 of the Montreal Convention. In researching this issue I've come across multiple examples, including a few journal articles, in which Article 28 is described as requiring all carriers to provide advance payments to meet the immediate economic needs of persons in injurious or fatal aircraft accidents, with the amount of advance compensation to be determined by national law. This interpretation appears to be contradicted by the text of Article 28:
"In the case of aircraft accidents resulting in death or injury of passengers, the carrier shall, if required by its national law, make advance payments without delay to a natural person or persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons. Such advance payments shall not constitute a recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier." (emphasis added)
The clearest interpretation to me is that not only does each State determine the amount of advance payments required of its carriers, but whether those payments are required at all. This also comports with my understanding of why Article 28, which was not in the Warsaw Convention, was added in 1999. Two years prior, the European Community had adopted regulation 2027/97 which required community carriers to make advance payments sufficient to meet economic needs within 15 days of the identification of the person entitled to compensation. The regulation set a minimum payment in the event of death of at least 15,000 Special Drawing Rights (SDRs) which was later increased to 16,000 SDRs by regulation 889/2002. It is my understanding that Article 28 was intended to enable regulation 2027/97 to coexist with the Montreal Convention, rather than to impose its substance on all contracting States. I'm not currently aware of any States not subject to regulation 2027/97 that similarly require their carriers to make advance payments. If any readers know of other States with advance payment requirements, I'd encourage you to please list them in the comments.
Assuming my reading is correct, this makes Article 28 a somewhat unusual provision. It runs contrary to the Convention's primary purpose of creating a uniform liability regime for international carriers. Of course, courts around the globe have varied in their interpretations of a number of the Convention's articles so the notion of uniformity shouldn't be oversold. Nonetheless, Article 28 would be unique in affecting plaintiffs differently depending on the nationality of the carrier, rather than the jurisdiction in which the claim is heard. For example, with regard to Asiana Flight 214, if the Republic of Korea requires Asiana to provide advance payments to injured passengers (which, again, I don't believe to be the case) then Asiana will have to do so regardless of whether passengers bring suit in China, South Korea or the United States.