UK: EU Air Carrier Liability Regulation Updated

• A new, lengthy list of notice requirements is now included. All carriers selling air carriage within the Community (i.e European and non-European carriers) must summarise the main liability provisions at all points of sale. How this is to be achieved for telephone sales (which are specifically referred to) is not spelt out.
• A detailed written form is prescribed which Community air carriers must use as the notice. While there are a number of misleading or confusing statements in the standard form both the notice and the amended Regulation seem to make it clear that the Montreal Convention and the Regulation override the terms of the notice. Nevertheless it is inevitable that passengers will be misled and disputes will arise.
• The notification requirements appear to apply only at points of sale and no longer at check-in. The carrier must identify any limits of liability upon damages for death or injury, loss of or damage to baggage, or delay. For Community air carriers, those limits are those prescribed by the Convention as amended by the Regulation unless voluntarily increased by the carrier. The notification requirements only apply to non-Community carriers in respect of carriage to, from or within the Community.
• In addition to notifying liability limits, carriers must now draw attention to time limits both for suing the carrier and for notifying a claim under Montreal Art 31.2. Carriers must also draw passengers’ attention to the ability to declare the value of their baggage. It remains to be seen whether the effect will be longer check-in queues.

The amended Regulation will not bring the Montreal Convention into force for the Community but will apply a modified version of that treaty to carriage performed by Community air carriers, such that a number of the issues associated with the original regulation may arise again. Even in the application of the Montreal regime there remain unsatisfactory aspects. It clearly applies to domestic carriage. It clearly applies to carriage governed by Montreal on the latter’s own terms. But what of international carriage not properly subject to Montreal - for instance where a Community air carrier based in a Montreal state operates to a Warsaw/Hague state? Clearly the desire is that Montreal should apply for that carriage.

The arguments on the conflict between Regulation 2027/97 and Member States’ obligations under Warsaw not to require their own carriers to operate on a different basis from those of other states party to Warsaw, considered by Jowitt J in the 1999 challenge before the English Courts to Regulation 2027/97, will however be expressed differently. The amended Regulation no longer requires Community air carriers to change their conditions of carriage; instead it seeks to apply the Montreal Convention to such carriage where the latter would not apply on its own terms. The result is that on ordinary principles of public international law the Courts of a Member State would apply Montreal, but those of a non-European state would apply Warsaw/Hague to the same carriage. Given that the availability of limited liability may be in issue this distinction could be significant during the transitional period to full implementation of Montreal.

The amendment came into force on 30 May 2002. However it does not yet "apply". That only occurs when the Montreal Convention enters into force "for the Community". The desire of Community institutions not only to add their own policy variations to an international regime but to do so by the – possibly unprecedented – means of attempting to introduce the Community as a party without an established mechanism, recognised under international law, for the Community to enter into treaty relationships either in its own right or on behalf of member states, seems likely to lead only to uncertainty. Steps are in hand for Member States to ratify the Montreal Convention simultaneously, but it appears unlikely that this will happen before the middle of next year. Apparently Italy has not yet started the process. Greece has, however, already deposited its instrument of ratification. With 24 other States also having ratified the likelihood must be that another five will do so in the next few months and the Convention will come into force for these first 30 States before it does so for 14 of the EU’s Member States.

Leaving aside the extent to which the development of the law elsewhere may be ahead of much of Europe, the situation begs the question of whether the Montreal Convention will come into force at a clear date ‘for the Community’ or merely for a group of Member States, thus not satisfying the application trigger of the amended Regulation. In any case, there would in that event be a period when Greek law would apply the normal Montreal Convention provisions to carriage to other Montreal States and then later apply a modified version to all carriage to and from Greece by Community air carriers.

These possibilities seem unlikely to be what the Commission intended or anticipated. One hopes that the Courts will apply a purposive and common sense approach to such debates rather than a pedantic one, but much could have been avoided by the modification of a few words.