With seven new accessions in 2017 (Chad, Indonesia, Mauritius, Russia, Sudan, Thailand and Uganda), the number of parties to the Montreal Convention 1999 has grown to 130, making this key air carrier liability treaty one of the most successful instruments in the field of international air law. Among the recent signatories, Russia and Thailand (as to which see the following article) represent two significant international air transport markets which have now joined the majority of leading aviation nations participating in the Convention.
The Montreal Convention modernises the Warsaw Convention regime and revises liability limits to ensure adequate compensation of passengers in the event of carrier liability. Although the Russian Federation was an original signatory of both the Warsaw Convention 1929 and the Hague Protocol 1955, and actively participated in the development of the Montreal Convention between 1995 and 1999, no steps were taken to join the latter for a number of years.
Such an eventuality certainly remained possible, as the Montreal Convention 1999 is a so-called 'open treaty', allowing any state which does not sign the Convention to accept, approve or accede to it at any time, as confirmed in Art. 53(4) thereof. Russia acceded to the Convention by passing Federal Law dated 3 April 2017 No. 52-FZ "on the accession of the Russian Federation to the Convention for the Unification of Certain Rules for International Carriage by Air" (the "Accession Law").
Russia made two fairly standard declarations in the Accession Law under Art. 57 of the Montreal Convention, to retain the right not to apply the provisions of the Convention with respect to: (a) international carriage by air performed and operated directly by the Russian Federation for non-commercial purposes relating to its functions and duties as a sovereign State; and (b) the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or leased by the Russian Federation, the whole capacity of which has been reserved by or on behalf of such authorities.
The Accession Law entered into force on 15 April 2017, but for practical purposes, the accession procedure only began on 22 June 2017, when Russia deposited its instrument of ratification with ICAO, the depositary of the Convention. The Convention then entered into force in Russia on 21 August 2017 per Art. 53(7).
Russian aviation legislation is not new to accommodating international treaties. As an instrument of international law, the Warsaw Convention, as amended by the Hague Protocol, enjoys precedence under the Russian Constitution over domestic legislation governing air carrier liability (as a result of Art. 15(4) of the Russian Constitution; and confirmed in Art. 117(1) of the Russian Air Code). The Russian Air Code and Civil Code are generally aligned with these treaties. This appears to be the case not only as regards the liability regimes set out in Chapter XVII of the Russian Air Code for the carriage of passengers, baggage and cargo, but also with respect to the more general provisions on civil liability contained in Chapter 59 of the Russian Civil Code.
In some respects Russian legislation already provided greater passenger protection than that afforded by the Warsaw Convention, paving the way for the adoption of the Montreal Convention. For instance, liability of the carrier for bodily injury of passengers is unlimited, and in case of death the law provides for an automatic payment of RUB 2,000,000 (some USD 33,300). Russian law also provides for advance payments in case of death or serious bodily injury, in which case a payment of RUB 100,000 (some USD 1,500) must be made within three business days from the submission by the passenger of an application and specified supporting documents. Furthermore, detailed rules on the procedure for presenting and assessing claims are set out in Federal Law dated 14 June 2012 No. 67-FZ on the mandatory insurance of carriers' civil liability.
Nevertheless, following Russia's accession to the Montreal Convention, additional changes to Russian legislation will be necessary, and indeed seem to be envisaged. We understand that a bill is currently under consideration in the State Duma, the lower house of the Russian Parliament, and envisages amendments to Arts. 105, 117, 127 and 128 of the Russian Air Code, which concern documents of carriage, carrier liability in respect of passengers, the time frame for making claims, and the commencement of the limitation period, respectively.
As the Convention only unifies certain matters, a number of aspects remain outside its scope. These are addressed in domestic law to varying degrees, and include issues such as the assessment of damages, the calculation of the limitation period, the procedural law of the forum, as well as of course rules governing domestic carriage. Assessment of damages is regulated in some detail: the overarching principles can be found in the aforementioned Federal Law dated 14 June 2012 No. 67-FZ, whilst Government Resolution dated 15 November 2012 No. 1164 sets out the percentages of the RUB 2,000,000 amount that should be awarded in respect of various bodily injuries. The value of moral damages arising out of bodily injuries is determined by the court taking into account all the circumstances of the case, and this can be in practice difficult to estimate as case law is not consistent (and rulings have no precedential effect).
Whilst Russian legislation seems generally compliant with the Convention regime, the same cannot be said for the practice of Russian courts, which do not always follow the Convention. For example, courts have in the past awarded moral damages in Warsaw Convention cases where the claimants suffered no bodily injury. Foreign Convention case law neither has legal effect nor is generally persuasive. Russian courts thus feel more inclined to apply provisions of the Russian Air Code to define processes of embarkation and disembarkation, resulting in a more narrow definition of 'carriage' than that under cases such as Phillips v Air New Zealand  All ER (D) 431 (Mar) and Adatia v Air Canada (CA)  PIQR 238.
Whilst there may not be much Russian case law or commentary on the Montreal Convention for some time, Russia's accession to the Convention has been widely publicised. Thus it is not inconceivable that passengers, aware of the new instrument, but with no guidance on its interpretation, may view, for instance, the Art. 21 language as granting an automatic right for compensation at the level of SDR 113,000, which is of course not the case, as every claim is subject to proof of loss and its value is determined by reference to local law on the assessment of damages.
The topic was of significant interest at the 22nd annual conference of Russian Association of Aviation and Space Insurers held in Moscow between 27-29 September 2017, where many delegates agreed that carriers, brokers and insurers must work together to ensure that such misguided interpretations are reduced as far as possible. Broadly speaking, however, the Convention was viewed as a positive development that strengthens Russia's reputation and role in international air transport markets, and has the potential of reducing the impact of conflicting domestic law that has built up over the years. In this respect it will be interesting to see whether the country's accession to the Montreal Convention will have an impact on the development of Russian case law, and in particular whether the new instrument might change the courts' general approach to the award of moral damages in cases where these would not be compensable under the Conventions.
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