The Montreal Convention 1999 ("MC99") will come into force on 4 November 2003. Thereafter it will apply to all carriage between States Parties and round trip carriage starting and finishing in a State Party. The existing Warsaw Convention will continue to apply, as amended where appropriate by the Hague Protocol and the Montreal Additional Protocols, save as between states which have ratified MC99 where the new Convention will prevail.
Below we set out the main liability provisions in tabular form and the initial thirty one States Parties. Much of the structure is familiar, being based largely on Warsaw/Hague/MAP4 and Guadalajara. We also set out the main changes to the existing liability regime.
KEY CHANGES
Passenger claims: limits for death or bodily injury
- Damages up to 100,000SDR: Carrier is liable without exclusion or limitation – but exoneration for contributory negligence or wrongful act or omission does still apply (Art 20).
- Damages above 100,000SDR: Carrier not liable if it proves that death/bodily injury was not due:
- to negligence by it or its servants or agents; or
- solely to negligence or wrongful act of third party.
- Note that the circumstances which can lead to liability remain similar. No clarification in the Convention of meaning of "bodily injury", so psychological injury remains a source of controversy.
Advance Payments
- Death/bodily injury cases only.
- To be made without delay to persons entitled to claim compensation to meet immediate economic needs.
- Advance payments only obligatory where carrier’s national law requires such payments.
Baggage
- Liability for unchecked baggage dependent on fault of carrier.
- Prescribed cumulative limit of SDR1,000/passenger for loss, damage or delay to checked and unchecked baggage. Breakable under the "old" W/H Art. 25 test.
Cargo
- Unbreakable limits, as per MAP4, for loss, damage or delay.
Delay
- Not defined except for checked baggage (as more than 21 days from date when baggage ought to have arrived) (Art 17 (3)).
- Prescribed limits of SDR4,150 for passenger delay and SDR1,000 for baggage. Breakable under the "old" W/H Art. 25 test.
Documentation
- Any means which preserves the information prescribed in Art 3 (ticket) and Art 5 (AWB) is acceptable.
- Carrier shall offer to deliver written confirmation of this information.
- No requirement for formal baggage check – just some means of identifying bags.
- Carrier must give written notice of limits of liability.
Exemplary/Punitive Damages
- Not recoverable (Art 29).
Jurisdiction
- In death/bodily injury cases, only a "fifth jurisdiction" is added: the State Party where passenger has his principal and permanent residence at time of accident provided:
- Carrier operates passenger services (own or another’s aircraft by commercial agreement) to/from that State Party; and
- Carrier conducts business of passenger carriage from premises which it, or another carrier with which it has a commercial agreement, owns or leases in that State Party.
Insurance
- Carriers must maintain adequate insurance to cover liability under MC99.
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The Montreal Regime |
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Passenger |
Checked Baggage |
Unchecked Baggage |
Cargo |
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Liability |
Death or bodily injury, if accident on board aircraft or embarking/disembarking |
Destruction, loss or damage while in charge of carrier |
Dependent on fault of carrier |
Destruction, loss or damage while in charge of carrier |
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Limit of Liability |
100,000 SDR if carrier can prove damage not due to its negligence, or damage due solely to third party negligence, wrongful act or omission. |
1,000 SDR per passenger* Subject to special declaration |
17 SDR/kg Subject to special declaration |
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Breakable Limit? |
100,000 SDR is not a limit. Burden of proof is on carrier above 100,000 SDR. |
Warsaw/Hague Article 25 test** |
Unbreakable |
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Liability |
Delay in carriage by air of passengers, baggage or cargo |
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Defence |
Carrier took all measures reasonably required to avoid liability, or impossible to do so |
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Limit |
4,150 SDR |
1,000 SDR per passenger* |
17 SDR/kg |
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Breakable Limit? |
Warsaw/Hague Article 25 test** |
Unbreakable |
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*Cumulative limit for damage, loss or delay to checked and unchecked baggage. **The "old" Warsaw/Hague Article 25 test: carrier cannot rely on limits if there was intention to cause damage or recklessness with knowledge that damage would probably result. |
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Exoneration for contributory negligence, wrongful act or omission is available throughout for all liability. |
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Initial parties to MC99
Bahrain
Barbados
Belize
Botswana
Canada
Cameroon
Colombia
Cyprus
Czech Republic
Estonia
Greece
Japan
Jordan
Kenya
Kuwait
Macedonia
Mexico
Namibia
New Zealand
Nigeria
Panama
Paraguay
Peru
Portugal
Romania
Slovakia
Slovenia
Syrian Arab Republic
Tanzania
United Arab Emirates
United States
In conjunction with the publishers Sweet & Maxwell we are updating our "International Aviation Conventions" world map to depict the new liability regime. The new edition will be published coincident with the entry into force of MC99 on 4 November 2003.
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.