In the context of a claim alleging misrepresentations made as to an aircraft business class seat, an English court has upheld the foundation stone of exclusivity under the Montreal Convention 1999.

"Whilst a conclusion which leaves a claimant without a remedy for an undoubted wrong is unattractive to those steeped in the common law, that conclusion is the result of a balance struck by the high contracting parties in the interests of certainty and uniformity...".

When Mr Gubay boarded an SAA flight from London Heathrow to Cape Town in December 2005 he was disappointed to discover that, although the frame of his business class "flat bed" seat reclined 180˚, the configuration of the lumbar supports prevented the seat surface itself from lying perfectly flat and without undulation. He claimed the same exacerbated a pre-existing arthritic condition. Fortunately for Mr Gubay, on his return flight he was upgraded to first class where he found the seating accommodation to be more to his liking.

On his return to the UK, Mr Gubay commenced proceedings against SAA in the Manchester county court, alleging misrepresentation and breach of contract. No claim was made under Article 17 of the Montreal Convention 1999 for bodily injury. Mr Gubay assessed his claim at between £5,000 and £15,000 despite having only paid £1,140 for the sector about which he complained. Unwilling to compromise his claim for a realistic level of compensation, he pursued the matter to trial.

Misrepresentation

SAA was unable to defend the misrepresentation argument. At the time that the contract of carriage was concluded, it was by no means certain that Mr Gubay would end up with the particular seat product about which he complained: SAA were operating a number of new aircraft on the route concerned some of which did provide the type of true "flat bed" that fully answered the description. The court found that the description ("flat bed") that SAA chose to apply to the seating available in business class on the subject flight was materially inaccurate and misleading, although not made fraudulently. The description was applied to existing first class seats to which the term was in fact appropriate and it would seem that there had been a marketing decision to apply the term also to business class seating across the board, perhaps without appropriate consideration to the accuracy of the same to all business class seats.

Exclusivity

However, of greater interest is argument on the exclusivity of the Montreal Convention. Mr Gubay argued that the Montreal Convention had no application to a claim based on misrepresentation that was made some time before the carriage by air took place and, indeed, before the contract for that carriage was even concluded. SAA contended that, pursuant to Article 29, the Montreal Convention provided Mr Gubay's sole and exclusive cause of action and remedy in respect of any claim for loss, injury or damage sustained during the course of, or arising out of, his international carriage by air. Because the Convention did not recognise any liability for misrepresentation, his claim had to fail.

Recorder Ryder, heavily influenced by the House of Lords' authority of Sidhu & Others v British Airways Plc [1997] 1 All ER 193 HL, found in favour of SAA on the issue of exclusivity of the Convention whilst demonstrating a degree of sympathy for Mr Gubay: "...whilst a conclusion which leaves a claimant without a remedy for an undoubted wrong is unattractive to those steeped in the common law, that conclusion is the result of a balance struck by the high contracting parties in the interests of certainty and uniformity".

We anticipate that the decision in the Gubay case stretches the boundary of the Convention's application as far as it can realistically go. It is clear, however, that, in determining these issues, the court will place great emphasis on when "carriage by air" begins and ends, as well as when the relevant "event" giving rise to a cause of action occurs.

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