The Montreal Convention: Can Passengers Finally Recover for Mental Injuries?

Since the 1920s, recovery for accidents suffered on international flights has been subject to the Warsaw Convention's limitation of "bodily injury." To address perceived inequities stemming from this limitation, some courts invoked a liberal interpretation of the phrase "bodily injury," and the resulting and fragmented judicial precedent threatened the treaty's goal of international uniformity. Although Warsaw's long-awaited replacement, the Montreal Convention, retains the "bodily injury" language, a close study of the treaty's history and, more importantly, the negotiations among the signatories' delegates suggests that the great majority of nations intended to broaden the allowable recovery beyond strict bodily injury and that many had in fact already interpreted the phrase to include mental injury. Furthermore, the policy informing the new treaty substantively changed from protecting the airline industry to protecting the passenger. As a result, courts faced with claims under the Montreal Convention must undertake a materially different analysis from those courts that addressed similar claims under the Warsaw Convention.