Surprises in the Skies: Resolving the Circuit Split on How Courts Should Determine Whether an Accident is Unexpected or Unusual Under the Montreal Convention

Article 17 of both the Montreal Convention and its predecessor, the Warsaw Convention, imposes liability onto air carriers for certain injuries and damages from “accidents” incurred by passengers during international air carriage. However, neither Convention defines the term “accident.” While the United States Supreme Court opined that, for the purposes of Article 17, an air carrier’s liability “arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger,” it did not explain what standards lower courts should employ to discern whether an event is “unexpected or unusual.” In 2004, the Fifth Circuit looked to industry standards; in 2022, the First Circuit looked to the perspectives of a reasonable passenger. As a result, courts are now split on which methods they should adopt to determine whether an event constitutes an Article 17 “accident.” This Comment looks at the history of the Warsaw and Montreal Conventions and how courts have traditionally interpreted the language of Article 17 to define “accidents.” It highlights the recent circuit split on the standards courts should adopt to determine if an event can properly be described as “unexpected and unusual” to constitute an Article 17 “accident.” Taking into consideration unique aspects of the commercial aviation industry, this Comment introduces a solution based on the existing “block time” model and proposes that courts should adopt separate standards depending on when the event takes place to determine whether an event can be classified as “unexpected or unusual” and thereby recoverable as an Article 17 “accident.