Ian A. Schwartz


On September 1, 1983, over the Sea of Japan, a Soviet Union military aircraft destroyed a Korean Air Lines Boeing 747 en route from Kennedy Airport in New York to Seoul, South Korea. All 269 persons on board the plane were killed. The Warsaw Convention ("Convention"), a multilateral treaty governing the international carriage of passengers, baggage, and cargo by air, provides a per passenger damage limitation for personal injury or death. The Convention further provides that passenger tickets must include notice of this limitation, and a private accord among airlines known as the Montreal Agreement ("Agreement") states that this notice shall be in print size no smaller than 10-point type. In Chan v. Korean Air Lines, Ltd.,' the United States Supreme Court held that international air carriers do not lose the benefit of the Warsaw Convention's damages limitation if they fail to provide notice of that limitation. Accordingly, the liability of Korean Air Lines was limited to $75,000 per passenger. This Note first explores the majority and concurring opinions in Chan and concludes that the Court erred in enabling a carrier to benefit from the Warsaw Convention's damage limitation when the carrier has failed to warn its passengers of that limitation. This Note further discusses how the Court created a confusing and disturbing precedent by failing to interpret the Montreal Agreement in conjunction with the Warsaw Convention, and by wrongly relying on a literal reading of the Warsaw Convention. for its conclusions. Finally, this Note asserts that the concurrence in Chan correctly resolved the fundamental issue by examining the drafting history of the Convention and concluding that an international air carrier cannot receive the benefit of the Convention's damage limitation if it fails to provide adequate notice of that limitation on passenger tickets. The concurrence failed, however, to appreciate the relationship between the Montreal Agreement and the Convention and replaced a clear standard of adequate notice with an unclear standard.