As if you hadn’t realised, the Montreal Convention 1999 has of course come into force since our last issue. From 4 November 2003 it applies in the first 31 States Party. At the time of writing, Saudi Arabia and Bulgaria have become the 32nd and 33rd states to deposit their instruments of ratification such that the Convention will come into force in those countries on 14 December 2003 and 9 January 2004.
As MC99 enters into force more widely, the existing patchwork of air carriers’ liability regimes will become more seamless. There will remain variations in treatment of old chestnuts such as the recoverability of pure mental injury, but gradually the world’s airlines will move to a universal regime founded on negligence-based passenger liability over SDR100,000, absolute cargo liability at 17SDR/kg and with the additional fifth jurisdiction. However, in the short term, MC99 has the effect of adding a layer of complexity as to which regime governs any particular carriage.
The principal point to bear in mind is that the new Convention will not apply to all carriage to or from a State Party, nor to all carriage by carriers based in such states (in the absence of, for instance, amendment to that carrier’s terms of carriage systemwide). It applies to carriage within the definition in Article 1, in simple terms carriage between two States Party to MC99 or starting and finishing in a State Party, with an agreed stopping place anywhere outside that state.
To illustrate the permutations, consider three passengers on a flight operated by a UK carrier from the US to the UK in December 2003. One is on a one way ticket; one on roundtrip carriage starting in the US, and one on the return sector of roundtrip carriage from the UK.
Assuming the carrier had a place of business in the US, it would be subject to US jurisdiction whose Courts should, correctly, apply MC99 to the first roundtrip carriage. Until MC99 comes into force for the UK, the English Courts would not do so, despite the fact that the UK has signed the Convention and implemented secondary legislation to bring it into force, but should apply Warsaw/Hague/MAP4.
However, none of the Courts should apply MC99 to any of the other carriage. Neither case satisfies the definition within Article 1: carriage from one State Party to another, or starting and finishing in a State Party with an agreed stopping place elsewhere.
The result is that passenger claims in excess of SDR100,000 – in other words many fatal accidents – would be judged on different bases. The distinction may be a fine one in this example, in that under the European Regulation, the claim over SDR100,000 would depend on the "all necessary measures" defence, but that under MC99 would depend on the carrier proving it was not at fault in any way.
The point is more starkly illustrated in carriage between the US and a non- European, non-MC99 State, such as Venezuela, by a non-EU carrier. In that event, the US Courts should adjudicate the carriage starting from Venezuela under unamended Warsaw such that the test for unlimited liability is wilful misconduct.
When one considers the tendency of the US Courts to extend the most favourable regime to claims brought before them, one is sceptical that in these examples the US Courts will necessarily apply a European or an older liability regime. These are cases where, even without the fifth jurisdiction, the US Courts would be seized of the case. Consider, too, the results in cases of carriage to an overseas territory which is correctly subject to Warsaw, but an accident occurs on a separately ticketed side trip. There have been instances (see for instance Coyle -v- P T Garuda Indonesia and cases referred to in that decision involving accidents on sectors ticketed after the original contract for carriage returning to the US) in which the US Courts have taken jurisdiction and applied the Warsaw Convention to carriage which most would regard as beyond the US Courts’ jurisdiction. The point is that the determination of the correct regime may well be an intricate matter in itself and where it may lead, for instance, to a different regime governing claims of two passengers sitting next to one another on the same flight, some Courts may do what they can to reach a result that is favourable to the claimant.
Over time, the permutations for the relevant governing regime should become fewer as more states ratify the Convention. However in the short term carriers and their advisers will do well to exercise care in analysing the correct regime governing any given carriage.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
