Liability Waiver on Charter Flight Unenforceable Under the Warsaw Convention
On January 5, 2022, Richard C. Murphy III boarded a Cessna as the plane’s sole passenger on a charter flight to the Bahamas. Mr. Murphy was injured when the plane ran out of fuel and crash landed in the ocean. Not surprisingly, Mr. Murphy and his wife sued the aircraft owner, two charter companies, and the pilot. After removal to the District Court of the Southern District of Florida, two defendants, the pilot and one of the charter companies, moved to dismiss the fourth amended complaint based on a liability waiver.
In Murphy v. Airway Air Charter, Inc., the district court denied defendants’ motion to dismiss. The charter agreement included the following liability waiver:
EE. LIMITATION OF LIABILITY: CHARTER COMPANY SHALL NOT BE LIABLE FOR ANY INJURY, DAMAGE, LOSS, EXPENSE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES . . . WHETHER IN CONTRACT OR TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE)
In denying defendants’ motion to dismiss based on this affirmative defense, the court first noted that defendants had waived the defense by not pleading it in their Answer to the second amended complaint. But that’s not very interesting. More interestingly, the court also found that the affirmative defense was barred by the 1929 Warsaw Convention, as amended by the 1999 Montreal Convention (collectively, the Convention). Although the Convention allows parties to negotiate liability limits different from those provided for in the Convention, that only means that parties can provide for liability in excess of the amounts guaranteed under the Convention. They may not go below the required minimum of $75,000.
As a result, defendants’ liability waiver, even if not waived, was void. Defendants’ motion to dismiss was denied.