Consider two scenarios. In the first scenario, on an international flight, due to the airline’s improper maintenance, the aircraft’s engines suddenly fail and the plane pitches down toward the ground. Just before impact, the pilots are able to restart the engines and land the aircraft safely. In the second scenario, the aircraft’s engines fail, due to the same negligence, but the pilots can’t restart them. The aircraft crashes and all passengers are killed.
In the first scenario, the passengers file suit, seeking recovery for the emotional injuries sustained during the time that they believed—reasonably but, as it turns out, incorrectly—they were about to die. In the second scenario, the survivors of the passengers killed when the plane crashed file suit, claiming damages for the conscious pre-death fright, pain and suffering experienced during the time that the passengers believed—reasonably and correctly—they were about to die. According to the case law, under the Warsaw and Montreal Conventions the plaintiffs in the first scenario cannot recover. But can those in the second? And if so, why is a reasonable fear of death during an aviation disaster compensable only if the passenger actually dies?
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