The 1999 Montreal Convention

The 1999 Montreal Convention, formally the Convention for the Unification of Certain Rules for International Carriage by Air, is a multilateral treaty adopted by a diplomatic meeting of ICAO Member States in 1999. The 1999 Montreal Convention (MC99) establishes airline liability in the case of death or injury to passengers, as well as in cases of delay, damage or loss of baggage and cargo. It unifies all of the different international treaty regimes covering airline liability that had developed haphazardly since 1929. MC99 is designed to be a single, universal treaty to govern airline liability around the world.

It amended important provisions of the Warsaw Convention‘s regime concerning compensation for the victims of air disasters. The Convention attempts to re-establish uniformity and predictability of rules relating to the international carriage of passengers, baggage and cargo. Whilst maintaining the core provisions which have served the international air transport community for several decades, the new treaty achieves modernisation in a number of key areas.

Introduction

When the 1999 Montreal Convention came into force in 2003, the Convention was widely seen as a modern and international liability regime governing air carrier liability overhauling the outdated Warsaw system of carrier’s liability. Today, the 1999 Montreal Convention enjoys broad success and the global ratification of MC99 is also an industry priority. MC99 gives consumers better protection and compensation and facilitates faster air cargo shipments, while airlines enjoy greater certainty about the rules affecting their liability. Universal ratification of MC99 by States will provide significant benefits to all parties.

Passengers will benefit from fairer compensation and greater protection. Shippers and those involved in the air cargo supply chain will benefit from the ability to make claims without the need for expensive and time consuming litigation. They will also be able to replace paper documents of carriage, such as Air Waybills, with electronic versions, thus facilitating faster and more efficient trade. Finally, airlines will benefit from greater certainty about the rules governing their liability across their international route network.

The 1999 Montreal Convention

The 1999 Montreal Convention is intended to replace the patchwork of regimes that developed since the Warsaw Convention in 1929. Entered in to force in 2003, it governs airline liability for passengers, baggage and cargo on international flights in cases of: 1. death, injury or delay to passengers; 2. delay, loss or damage to baggage; and 3. delay, loss or damage to cargo.

Under the 1999 Montreal Convention, travellers are granted additional protections under the law, while extending certain rights to airlines. Airlines operating in nations that have signed on to the Montreal Convention are obligated to carry liability insurance and are responsible for damages that arise to passengers while travelling on their airline. Common carriers are obligated to at least 1131 SDR of damages in cases of injury or death. While travellers can seek more compensation in court, airlines can negate those damages if they can prove that the damages were not directly caused by the airline.

In addition, the 1999 Montreal Convention set damages for lost or destroyed luggage based on individual pieces. Travellers are entitled to a maximum of 1131 SDR if luggage is lost or otherwise destroyed. In addition, airlines are required to pay travellers for expenses due to misplaced luggage. While the 1999 Montreal Convention offers guaranteed protections, the provisions may not replace the need for travel insurance. There are many additional protections that travellers may want that a travel insurance policy can provide.

The Convention starts with the following: “RECOGNIZING the significant contribution of the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed in Warsaw on 12 October 1929, hereinafter referred to as the „Warsaw Convention“, and other related instruments to the harmonization of private international air law;”. It continues with the following “RECOGNIZING the need to modernize and consolidate the Warsaw Convention and related instruments;” and “RECOGNIZING the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution;”.

It then states: “REAFFIRMING the desirability of an orderly development of international air transport operations and the smooth flow of passengers, baggage and cargo in accordance with the principles and objectives of the Convention on International Civil Aviation, done at Chicago on 7 December 1944;” and “CONVINCED that collective State action for further harmonization and codification of certain rules governing international carriage by air through a new Convention is the most adequate means of achieving an equitable balance of interests;”.

Chapter I on General Provisions, Article 1 (Scope of Application) enounces that “1. This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking. 2. For the purposes of this Convention, the expression international carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention. 3. Carriage to be performed by several successive carriers is deemed, for the purposes of this Convention, to be one undivided carriage if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territory of the same State”.

Chapter III on Liability of the Carrier and Extent of Compensation for Damage, Article 17 (Death and Injury of Passengers / Damage to Baggage) states that “1. The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. 2. The carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents. 3. If the carrier admits the loss of the checked baggage, or if the checked baggage has not arrived at the expiration of twenty-one days after the date on which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage. 4. Unless otherwise specified, in this Convention the term „baggage“ means both checked baggage and unchecked baggage”.

Article 18 (Damage to Cargo) adds that “1. The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air. 2. However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damage to, the cargo resulted from one or more of the following: (a) inherent defect, quality or vice of that cargo; (b) defective packing of that cargo performed by a person other than the carrier or its servants or agents; (c) an act of war or an armed conflict; (d) an act of public authority carried out in connection with the entry, exit or transit of the cargo. 3. The carriage by air within the meaning of paragraph 1 of this Article comprises the period during which the cargo is in the charge of the carrier. 4. The period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport. If, however, such carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transshipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air. If a carrier, without the consent of the consignor, substitutes carriage by another mode of transport for the whole or part of a carriage intended by the agreement between the parties to be carriage by air, such carriage by another mode of transport is deemed to be within the period of carriage by air”.

Article 19 (Delay) states that “The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures”.

Article 21 (Compensation in Case of Death or Injury of Passengers) declares that “1. For damages arising under paragraph 1 of Article 17 not exceeding 100 000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability. 2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100 000 Special Drawing Rights if the carrier proves that: (a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or (b) such damage was solely due to the negligence or other wrongful act or omission of a third party”.

Article 23 (Conversion of Monetary Units) expresses that “1. The sums mentioned in terms of Special Drawing Right in this Convention shall be deemed to refer to the Special Drawing Right as defined by the International Monetary Fund. Conversion of the sums into national currencies shall, in case of judicial proceedings, be made according to the value of such currencies in terms of the Special Drawing Right at the date of the judgement. The value of a national currency, in terms of the Special Drawing Right, of a State Party which is a Member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund, in effect at the date of the judgement, for its operations and transactions. The value of a national currency, in terms of the Special Drawing Right, of a State Party which is not a Member of the International Monetary Fund, shall be calculated in a manner determined by that State. 2. Nevertheless, those States which are not Members of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 1 of this Article may, at the time of ratification or accession or at any time thereafter, declare that the limit of liability of the carrier prescribed in Article 21 is fixed at a sum of 1 500 000 monetary units per passenger in judicial proceedings in their territories; 62 500 monetary units per passenger with respect to paragraph 1 of Article 22; 15 000 monetary units per passenger with respect to paragraph 2 of Article 22; and 250 monetary units per kilogramme with respect to paragraph 3 of Article 22. This monetary unit corresponds to sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. These sums may be converted into the national currency concerned in round figures. The conversion of these sums into national currency shall be made according to the law of the State concerned. 3. The calculation mentioned in the last sentence of paragraph 1 of this Article and the conversion method mentioned in paragraph 2 of this Article shall be made in such manner as to express in the national currency of the State Party as far as possible the same real value for the amounts in Articles 21 and 22 as would result from the application of the first three sentences of paragraph 1 of this Article. States Parties shall communicate to the depositary the manner of calculation pursuant to paragraph 1 of this Article, or the result of the conversion in paragraph 2 of this Article as the case may be, when depositing an instrument of ratification, acceptance, approval of or accession to this Convention and whenever there is a change in either”.

Concluding remarks

The 1999 Montreal Convention is far from perfect but the airlines and their users will have to live with its flaws – possibly for decades to come. It is doubtful that the Convention would diminish the number of litigations – the litigations will target the concept of “accident”, “bodily injury”, quantum of damages in the second tier, and also the issue of delay. However, on the whole, the airlines have a more solid and reliable legal regulation than that provided under the antiquated Warsaw Convention.