From its inception, the main aim of the international air law has been to formulate a uniform system of laws across jurisdictions. Since aviation links different lands with different customs, languages, and legal systems it was at the outset very desirable to maintain a degree of uniformity. Therefore, the objective was to establish a uniform liability regime that encompasses all cases regardless of where they arose.
Nevertheless, the Montreal Convention of 1999 was probably one such step towards the unification of the international air law and thus this Convention of 1999 replaces the Warsaw system. In this module, you will explore some of the most vital aspects relating to the Montreal Convention. Moreover, it will cover various landmark judgments that will assist you in understanding the Convention better.
Background of the Convention
The Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999 or commonly referred to as the Montreal Convention is an international convention relating to the international air carriage and was formulated to update and strengthen the ‘patchwork’ of the Warsaw Convention system. Various countries like the USA, Canada, Malaysia. Chile, the Philippines, and Cuba have not ratified the amendments that have been done subsequently in the Warsaw Convention. A non-uniform system of international carriage by air was prevalent. Thus, frustrating one of the fundamental aims of the Warsaw Convention.
With the enforcement of the Montreal Convention, this deficiency of non-uniformity was resolved and therefore it was readily accepted by most of the nations of the world. Another prominent step in the integration of the international air carriage system was the ratification of the Convention by the USA. Further, those states who were the members of the Warsaw Convention and where ratification of the Montreal Convention of 1999 was pending, in these states amended Warsaw Protocols would continue to be applicable.
Generally, prior to the enforcement of the Montreal Convention 1999, the limits of the compensation scheme was kept low due to the reason of supporting the emerging aviation industry. However, despite the challenges, the aviation industry significantly developed in terms of safety standards and commercial stability. The new and emerging complex nature of international trade like the use of electronic documents in place of the air waybills or the paper tickets etc. paved the way for a Convention that encompasses all such commercial arrangements in aviation.
Therefore, on 4th November 2003, the Montreal Convention was enforced and thereby various features of the Warsaw Convention got updated by it. In fact, the Montreal Convention is wholly a new legal system that substituted and unified the concept of limited and strict liability that has been laid by the Warsaw Convention and its amended Protocols.
Objectives and Purposes
- The Montreal Convention came into force with the following objectives:
- For providing equitable compensation that occurred in international carriage by air in case of injury or death of the passengers, and loss or damage to cargo and baggage,
- To open the way for coherent operation and functioning of passengers, cargo, and baggage in the international air carriage.
- The existing provisions of various instruments have been incorporated into the Montreal Convention with an aim to provide States a single package of air laws that they can easily accept or reject.
- The purpose of the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999 was basically to update and eventually to replace the Warsaw Convention and its subsequent Protocols and Convention i.e., the ‘Warsaw system.’
- A new consistent system was the aim of the Montreal Convention that makes the international carrier’s liability by air in consonance with the advancement of the society and will suggest ways like the electronic documentation to ease the movement of the air passengers, cargo and baggage.
- Substantially, the Montreal Convention with respect to the international air carriage improves consumer protection as well as it increases the compensatory limits for victims in case of air accidents.
- Consolidation as well as clarification of all international rules and principles related to air carriage was the prime object of the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999.
Some of the key features of the Montreal Convention are as follows:
- In the Montreal Convention, the monetary unity used is the Special Drawing Rights (SDR) of the International Monetary Fund. Whereas in the Warsaw system uses the Poincaré gold francs.
- In case of death or body injury sustained by any passenger in the aircraft, a two-tiered approach of liability has been adopted. The foremost tier of this liability system is based on the strict or no-fault liability. This are applied to claims of up to 100,000 SDRs and this strict liability cannot be excluded or reduced expect in certain cases where contributory negligence of the passengers could be proved. For claims more than 100,000 SDRs, the second tier which is fault based is applicable.
- New additional liability limits have been set up. In case of delay or damage caused to baggage each passenger is entitled for 1,000 SDRs, up to 4,150 SDRs in cases of delay of the passengers, and for the delay or damage caused to any cargo up to 17 SDRs per kilogram.
- To take care of inflation, the Montreal Convention provides for provision relating to the review of limits of carrier’s liability for every five years. The liability limits will be revised in case where the accumulated inflation exceeds 10 per cent. Thus, they will be revised accordingly and the revision will be effective after six months.
- Provisions regarding the advance payments are taken by the States from their own carriers in cases of aircraft accidents are also highlighted in the Montreal Convention. These advance payments are made in order to assist victims or their relatives to meet their instant financial needs.
- The Convention contains provision that in case of any claims that arise from any international air carriage, then exemplary, punitive as well as other non-compensatory damages cannot be recovered.
- A new jurisdiction known as the ‘fifth jurisdiction’ has been added where the hearing of damages claim can be conducted.
- Special provisions are inserted in the Convention for the States to ensure that the air carriers keep sufficient insurance coverage for covering their liability.
- Moreover, the Montreal Convention provides provisions that have simplified the documentation system by allowing the use of the electronic means to record the data as well as by eliminating the paper-based air waybills.
Some of the leading cases relating to the Montreal Convention are as follows:
- Air France v. Saks
In the case of Air France v. Saks, there was a passenger going by plane from Paris to Los Angeles. The flight went well in all aspects, but in the course of landing stage, the passenger sensed high pressure and discomfort in her left ear. Soon after the journey, when the pain persisted, she communicated to a doctor who established that she had become perpetual deaf in her left ear. So the passenger filed a suit against the airline corporation claiming that her hearing loss was caused by careless maintenance and procedure of the pressurization system. The petitioner had to prove that the grievance was produced by an accident within the meaning of article17. Evidence and proofs highlighted that the pressurization system was properly working.
The court in this case held that no accident had happened in this case because the passenger’s injury had occasioned from her on internal reaction to the normal operation of the aircraft.
- Olympic Airways V. Husain
The facts of the case are as follows-
Flying with Olympic Airways, a passenger had demanded a seat away from the smoking area. As the passenger was suffering from asthma and was very sensitive to second-hand smoking. His seat was very close to the smoking area. When the smoking amplified during the flight, the passenger requested a flight attendant to give him another seat but she denied him. After some time in the aircraft, the passenger lost his life. Then the wife of the deceased filed a suit against the flight attendant.
The United States Supreme Court observed that the passenger’s premedical illnesses which were deteriorated by action or in fact by inaction by the flight attendant would constitute an accident and held that the flight attendant was liable for such accident.
- Weiss v. El Al Israel Airlines
Certain plaintiffs were bumped off from an oversold flight that was going from New York to Jerusalem. The plaintiffs filed suit against the airline under the Federal Aviation Act and allege contract and tort claims as well. In this case, the court analyzed Article 29 of the Montreal Convention and finally observed that the airline is not liable and thus, the cause of action of the plaintiffs got dismissed.
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