Tenth Annual McGill Conference on International Aviation Liability & Insurance Session One: RECENT DEVELOPMENTS IN AIR CARRIER LIABILITY June 22, 2017 Chair: Dr. Paul Stephen Dempsey – McGill University, Montreal, Canada Speakers: Carlos P. Martins - Bersenas Jacobsen Chouest Thomson Blackburn LLP, Toronto, Canada John Maggio – Condon & Forsyth, New York & Miami, USA Marc Moller – Kreindler & Kreindler, New York, USA Sybille Rexer – Dabelstein & Passehl, Hamburg, Germany

Procedural Skirmishing How does choice of forum influence choice of law? How has the US Supreme Court limited in personam jurisdiction? How does the “fifth jurisdiction” of Montreal 1999 impact these issues? How is forum non conveniens impacting suits in the US? Are the West Caribbean decisions chilling suit filings in the US? Are all passengers treated fairly and equitably?

Recoverable Damages: The House of Lords in Morris v. KLM Lord Steyn would allow recovery “if a relevant accident causes mental injury or illness which in turn causes adverse physical symptoms. . . .” Lord Nicholls: “The expression ‘bodily injury’ or ‘lesion corporelle’, in article 17 means, simply, injury to the passenger’s body.” However, the brain too, is part of the body; whether the brain has suffered an injury is a question of medical evidence. Lord Steyn: Article 17 does not allow recovery for emotional damages absent physical injury, but recovery is appropriate where there is physical manifestation of emotional harm. Are other jurisdictions beginning to follow this precedent on the issue of recovery for emotional damages? May relatives of deceased or severely injured passengers recover for non-economic damages, including emotional harm?

Germanwings How has EASA tightened rules re flight crew mental illness? Suit filed against Lufthansa training center in Arizona. FNC petition granted with stipulation of US discovery rules. Can Annex 19 Safety Management Systems be used to prove negligence?

Will there be criminal prosecutions of those who downed MH 17?

Article 21 of the Montreal Convention of 1999 provides that a carrier my defend itself from paying damages above 113,100 SDRs if it can prove freedom from negligence OR that the accident was solely caused by a third person. So the question is, was Malaysian Airlines free from negligence for flying over the conflict zone of eastern Ukraine, or was the damage solely caused by some Russian firing a missile. If so, is it a defense the insurer would raise?

How are the settlements in MH 370 proceeding How are the settlements in MH 370 proceeding? What is the impact on litigation on the inability to find the aircraft?

What have been the recent interpretations of 261 by the ECJ re consequential damages and the extraordinary circumstances defense? What revisions to 261 are contemplated by the EU?

Since 1960, the average weight of an American has increased 24 pounds Since 1960, the average weight of an American has increased 24 pounds. 735 million passengers flown multiplied by 24 pounds means that airlines are flying 17.6 billion pounds of extra weight - requiring 176.4 million gallons of fuel, at a cost of $538 million. Are regulators insisting that overweight passengers be provided with a free second seat?

How are airlines and regulators dealing with service animals?