The Tragedy of Ukraine International Airlines Flight PS 752 and the Montreal Convention: A Case Study

Friday, August 23, 2024M. Gordon HearnLitigationTransportation & Logistics, Aviation Law, Ukraine, Montreal Convention

The recently published decision by Madame Justice Akbarali of the Ontario Superior Court in S. v. Ukraine International Airlines JSC, 2024 ONSC 3303, involves a detailed review of the Montreal Convention for the Unification of Certain Rules for International Carriage by Air, 1999 (the “Montreal Convention”) in the context of the tragic events of January 8, 2020, when, shortly after take-off from the Tehran airport, Ukraine International Airline flight PS 752 was hit by two surface-to-air missiles.   The missiles were launched by members of Iran’s Islamic Revolutionary Guard Corps (“IRGC”). Tragically, all 176 passengers and crew aboard PS752 lost their lives.

Included in the ensuing international response and calls for accountability were a series of lawsuits by aggrieved family members of the deceased, filed in the Ontario Superior Court seeking damages against Ukraine International Airlines (“UIA”).  The actions, comprised of a class action as well as numerous individual lawsuits asserted that that airline had been negligent in allowing flight PS 752 to depart Tehran amid heightened security concerns.

A common question arose in the Ontario based lawsuits: under the governing Montreal Convention, was any liability as established on the part of Ukrainian International Airline to be capped at a certain limit per passenger?

Article 21 of the Montreal Convention provides that the liability of an airline is limited to “128,821 Special Drawing Rights”, if the airline could prove that:

a. such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or

b. such damage was solely due to the negligence or other wrongful act or omission of a third party.

The published decision offers helpful insight into the framework of the Montreal Convention. The factual context is complex as was the analysis of the issues, calling into question geopolitical risk assessments and industry practices concerning aviation safety and security.

A hearing took place over 18 days in Toronto where the decision by UIA to have let PS 752 depart from the Tehran airport was effectively on trial.    The parties agreed that the claims were governed by the Montreal Convention.^[1]

The Montreal Convention

The Montreal Convention allows victims or their families of an aviation accident to sue foreign carriers where the claimants maintain their principal residence.  Accordingly, the series of related lawsuits were commenced in Ontario.

The Montreal Convention establishes airline liability in the case of death or injury to passengers, as well as in cases of delay, damage or loss of baggage and cargo. It unifies all of the different international treaty regimes covering airline liability that had developed haphazardly since 1929, when the first aviation liability treaty (the “Warsaw Convention”) came into existence. The Montreal Convention is designed to be a single, universal treaty to govern airline liability around the world. Its aim is establishing uniformity and predictability of rules relating to the international carriage of passengers, baggage and cargo.

Under the Montreal Convention, air carriers are strictly liable for proven damages up to 128,821.00 “Special Drawing Rights” (“SDR”), a mix of currency values established by the International Monetary Fund (“IMF”) equal to roughly US$175,000.  In other words, the mere fact of loss of life or injury occurring from an “accident by air” will involve automatic liability on the airline up to the amount of this per passenger limit. 

Where damages of more than 128,821.00 SDR are sought, the airline may avoid liability for such greater claim amount by proving that the accident which caused the injury or death was not due to its negligence or was attributable solely to the negligence of a third party.

The parties to this trial agreed that an “accident” as defined in the Montreal Convention had taken place. UIA argued that a “wrongful act or omission” contemplates intentional harm and wrongdoing other than negligence, none of which was alleged in this case. As a result, UIA focused its submissions on the issue of negligence. The plaintiffs also focused on negligence in their submissions. No one contended that any other “wrongful act or omission” was at issue in this case. As a result, the trial judge focused her liability analysis on the concept of “negligence”.

Accordingly, it was agreed that UIA was strictly liable for the accident, which liability would be unlimited unless UIA could prove that it was not negligent in allowing PS752 to depart Tehran on the morning of January 8, 2020.

The Issues at Trial

Accordingly, in what amounted to a “reverse onus” equation on UIA, the following were the issues addressed at the trial:

a. Could UIA prove that it did not breach the applicable standard of care in making its assessment of risk in permitting PS752 to take off from the Tehran airport on January 8, 2020?

b. If UIA could not prove that it did not breach the standard of care, has UIA proven that its breach of the standard of care did not actually cause the passengers’ damage, that is, but for UIA’s breach of the standard of care, would the passengers still have been killed?

c. If UIA cannot disprove causation in fact, are the passengers’ losses too remote to be recoverable? That is, has UIA proven that there is no causation in law?

Comprehensive factual evidence was led at trial, including evidence from various experts, in the nature of:

• The geopolitical history and related military and political tensions along the flight path route (being between Tehran and Kyiv);
• The steps taken, and criteria employed, in UIA initially establishing the flight path including its initial security assessment;
• The history of UIA transiting the flight path;
• UIA’s security risk assessments over the course of time, culminating in the day in question, concerning acts of unlawful interference that may jeopardize the safety of civil aviation, (including unlawful seizure, hostage-taking, introduction of weaponry on board an aircraft or at an airport, use of an aircraft for the purpose of causing harm, communication of false information to jeopardize the safety of an aircraft, and destruction of an aircraft in service);
• the hazard identification and safety assessments done before each flight to ensure, for example, that an aircraft has the minimum required equipment, or that there are no weather patterns that could endanger the flight;
• the role of international organizations, states, and airlines in ensuring aviation security, as well as the documents that set out industry standards for aviation security and safety;
• expert and factual evidence on the framework of the aviation industry, and concerning the relevant practices, statutes, and professional standards to assist in determining the content of the standard of care; and
• the routine security related practices of UIA and the fact that UIA did not routinely undertake security assessments with respect to its flights.

The flight path route in question underwent four separate security assessments up to January 8, 2020: one at the inception of the route, and the others when UIA determined that a change in circumstances warranted an updated security assessment. Those updated security assessments occurred: (i) in June 2019, after Iran shot down an unmanned American drone; (ii) on January 6, 2020, after the assassination of General Soleimani, a leading Iranian military figure; and, (iii) on January 8, 2020, after Iran’s missile attack on US forces at Iraqi bases, before PS752 took off from the Tehran airport.

The sufficiency of UIA’s aviation security assessments in view of the foregoing was hotly contested at trial.

Issue #1:  Could UIA Disprove that it was Negligent?

Following a very detailed review of the evidence the judge found that UIA has failed to prove, on a balance of probabilities, that it was not negligent in allowing PS752 to depart Tehran on January 8, 2020. As such, its liability under the Montreal Convention was unlimited.

The judge’s analysis serves as a helpful review of the key elements of “negligence”, citing the Supreme Court of Canada in Mustapha v. Culligan of Canada Ltd., that establishing a negligence case requires: (i) a duty of care; (ii) the defendant’s behaviour breached the standard of care; (iii) the plaintiffs suffered damage; and (iv) the damage was caused, in fact and in law, by the defendant’s breach.^[2]

As noted above, Article 21 of the Convention created a reverse onus on UIA to establish that it was not negligent. The judge cited Alberta Court of Appeal decision in Bradford v. Snyder that addressed the nature of the burden created by a reverse onus provision  finding that if the evidence shows that the party who bears the reverse onus is at fault, or if the evidence is too meagre or too evenly balanced for a court to determine the issue, the presumption will not be rebutted.^[3]

The court’s ruling also cited the United States decision in Nelson v. Lorenzo holding that where a third party’s negligence contributes to a passenger’s injury, principles of apportionment are inapplicable: it is only when the injury is solely due to the negligence of the third party that the Montreal Convention limits an airline’s liability.^[4] Thus, if UIA is even 1% responsible in negligence for the passengers’ death, its liability under the Montreal Convention is unlimited.

For purposes of this trial, UIA admits that it owed the passengers and crew aboard PS752 a duty of care. UIA also admits that the passengers and crew aboard PS752 suffered damage.

The legal analysis also noted that the standard of care in negligence is that of the reasonable person in similar circumstances. Where the defendant has special skills and experience, the defendant must “live up to the standards possessed by persons of reasonable skill and experience in that calling”: Hill v. Hamilton-Wentworth Regional Police Services Board.^[5]  Further, “the standard is not perfection, or even the optimum, judged from the vantage of hindsight. … The law of negligence does not require perfection of professionals; nor does it guarantee desired results”.^[6]

In Ryan v. Victoria (City), the Supreme Court of Canada described the standard of care as follows:

Conduct is negligent if it creates an objectively unreasonable risk of harm.  To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances.  The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury.  In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.^[7]

The question was thus whether UIA and its personnel met the standard required of a reasonable airline and its personnel in similar circumstances as those underlying this action.

In the Ryan case the Court described the relationship between legislative standards and the standard of care as follows:

Legislative standards are relevant to the common law standard of care, but the two are not necessarily co-extensive.  The fact that a statute prescribes or prohibits certain activities may constitute evidence of reasonable conduct in a given situation, but it does not extinguish the underlying obligation of reasonableness.  … Thus, a statutory breach does not automatically give rise to civil liability; it is merely some evidence of negligence.  … By the same token, mere compliance with a statute does not, in and of itself, preclude a finding of civil liability. …  Statutory standards can, however, be highly relevant to the assessment of reasonable conduct in a particular case, and in fact may render reasonable an act or omission which would otherwise appear to be negligent.  This allows courts to consider the legislative framework in which people and companies must operate, while at the same time recognizing that one cannot avoid the underlying obligation of reasonable care simply by discharging statutory duties.^[8]

External indicators of reasonable conduct relevant to determining the content of the standard of care also include custom, industry practice, professional standards, and regulatory standards in addition to statutory standards.^[9]

Following her detailed review of the industry and legal standards applicable to airline security and safety risk assessments, Justice Akbarali then considered whether UIA met the standard of care required of it on the morning of January 8, 2020. The judge concluded on the basis of the volume of evidence that UIA had not shown that it was not negligent.  Essentially, there were the following failures:

• a lack of information sharing between elements within UIA
• there were analytical failings on the information available
• there was a failure to properly conduct a hazard identification and safety assessment
• there was a failure to conduct a security threat risk assessment for the day in question.

Issue #2:  Did the Negligence on the Part of UIA Cause, as Matter of Fact, the Damages Claimed in the Lawsuits?

The parties agreed that the appropriate test for determining causation in fact is the “but for” test; that is, but for the defendant’s negligent act, would the plaintiff’s damages have occurred? To find causation in fact, the defendant’s negligence must have been necessary to bring about the plaintiff’s injury: Clements v. Clements.^[10]  The “but for” test must be applied “in a robust common-sense fashion”, with no need for “scientific evidence of the precise contribution the defendant’s negligence made to the injury”. There are three steps in the process that a judge or jury uses to determine causation.

The first is to determine what likely happened. The second is to consider what likely would have happened if the defendant had not breached the standard of care. The third step is to allocate fault among the negligent defendants (although, in the circumstances of this case, the third step is not relevant): Sacks v. Ross.^[11] The judge found that there was no debate that Iran’s conduct was a but for cause of the plaintiffs’ loss. This analysis rather focused on whether UIA’s conduct was also a “but for” cause.  Although normally it is the plaintiff’s burden to prove causation in fact on a balance of probabilities, given the reverse onus, the burden in this case was on UIA to disprove causation in fact.

The judge found that UIA had failed to prove that its breach of the standard of care was not a but for cause of the plaintiffs’ damages.

The judge found on the evidence that there was a direct causal relationship between the failures cited on the part of UIA and the damages suffered.  Accordingly, this second necessary element for an actionable negligence case against UIA was satisfied.

Issue #3:  Were the Passengers’ Losses too “Remote” to be Recoverable?

In her analysis, the judge recognized that a finding of negligence requires that the defendant’s breach of duty must not only have caused the loss as a matter of fact, but that it must have also caused the plaintiff’s harm in law. The question is whether the harm is too unrelated to the wrongful conduct to hold the defendant fairly liable, or, put another way, whether the plaintiff’s harm was too remote to warrant recovery. 

To determine whether the harm is foreseeable, and not too remote, the court applies the standard of the foresight of the reasonable person. The degree of probability to satisfy the reasonable foreseeability requirement is one which would occur to the mind of a reasonable person in the position of the defendant, and which they would not brush aside as far-fetched.  It is the general harm that must be reasonably foreseeable, and not its manner of incidence: Bingley v. Morrison Fuels.^[12]

While it is usually for the plaintiff to prove causation at law on a balance of probabilities, in this case due to the reverse onus that applied, it was the defendant’s burden to prove that the injury was too remote to warrant recovery.  UIA argued that the degree of probability of the deliberate attack or human error that resulted in the shoot-down of PS752 (that is, the overall missile risk and/or any confusion of a passenger airliner not being a military plane) did not meet the foreseeability requirement. The judge disagreed – noting that the focus should not be on the foreseeability of a particular chain of events that occurred rather than on foreseeability of the general harm.  The precise chain of events did not need to be reasonably foreseeable. The question was whether the risk of PS752 being struck by a surface-to-air missile (“SAM”) would occur to a reasonable person, and they would not brush it aside as far-fetched.

In the judge’s view, the risk of PS752 being struck by a SAM was reasonably foreseeable:

a. Available software and analysis warned of the very risk that transpired;

b. The United States Federal Aviation Administration had warned of the very risk that transpired in its published “NOTAM” (Notice to Airmen);

c. There had been a relatively recent example of a flight, MH17, being struck unintentionally by a SAM when flying in a conflict zone;

d. UIA’s risk assessment officer had decided the risk was worth undertaking a security threat risk assessment and concluded the risk was medium;

e. A passenger on the plane texted her brother expressing fear of the very risk that materialized.

On the basis of the foregoing, the judge concluded that UIA has failed to establish that the plaintiffs’ losses are too remote.

Conclusion

The Court ultimately found that UIA had been negligent in respect of the losses being the subject of the lawsuit and that the airline would be liable for the damages claim (to be proven during a different phase of the lawsuits) without any limitation on that liability. A PDF version is available for download here.  

M. Gordon Hearn
Partner
T 416.203.9503
E ghearn@grllp.com

(This blog is provided for educational purposes only, and does not necessarily reflect the views of Gardiner Roberts LLP).