Aviation Liability under the New Montreal Regime

For our convenience we will discuss this topic under the following heads: 1. 2. 3. Introduction Reasons for the adoption of Montreal Convention, 1999 Main provisions under the Montreal Convention, 1999 a. Liability Provisions b. Jurisdiction c. Limitation period

Introduction: The Warsaw convention was amended at Hague in 1955 and at Guatemala in 1971. Thereafter in 1975 several additional Montreal protocols were signed to modernize those rules. Finally, on 28 May 1999, a new convention was signed at Montreal, Canada which is also known as Convention for the Unification of Certain Rules for International Carriage by Air, 1999 or the Successor to the Warsaw convention. It came into force on 04th November, 2003. The Montreal Convention is not an amendment to the Warsaw Convention. Rather, the Montreal Convention is an entirely new treaty that was designed to replace the complicated and outdated 'Warsaw System' of carriers' liability. The India ratified Montreal Convention 1999 in March 2009 and became the 91st country in that way. Reasons for the adoption of Montreal Convention, 1999: The preamble of Montreal Convention suggests that the Warsaw convention was not so popular among the passengers and there were some inadequacies in it. Actually, the Warsaw Convention had some provisions to limit the liability of air carrier in case of damages. You, as a passenger, have a right to compensation in case of damages but the Warsaw Convention and its amendments were used, as legal instruments, to limit this liability. So no matter how much the damage costs you, the maximum amount you are entitled to was predefined. Moreover, there were loopholes in some matters like jurisdiction, maintenance etcetera. These inadequacies and loopholes led to the

need to modernize and unify the rules on carrier liability and finally to the adoption of Montreal Convention of 1999.

Main provisions under the Montreal Convention, 1999:

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The Montreal Convention has 7 chapters and 57 articles in total. Liability Provisions: In case of death, bodily injury of passengers or damage of baggage article 17 sets up the liability of air carrier provided that the incident should be occurred within a certain time frame. Further, article 21 of the Convention eliminates the arbitrary limits of liability applicable under the Warsaw Convention and holds air carriers strictly liable for the first 100000 (point one million) SDR of proven damages for each passenger, notwithstanding that the damage or harm was not caused by its negligence. SDR means Special Drawing Rights that are approximately equal to $141,000 (point one four one million dollars) or 71, 22,202.8 (seventy one lakh and twenty two thousand Indian rupees) (as defined by IMF). In case of cargo article 18, on the one hand, talks about the liability of air carrier in case of destruction or loss of cargo if the damage so sustained took place during the carriage by air. It, on the other hand, gives a protection to the air carrier in case where the damage resulted from: a. inherent defect, or quality of that cargo, b. defective packing of that cargo performed by a person other than the carrier or its 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.

In case of damage due to delay article 19 of the convention recognizes the liability of air carrier but if the carrier proves that it had taken due care then it will not be liable. Further, Article 22 preserves the limit on such kind of liability. These limits area. 4,150 (four thousand one hundred fifty) SDR (approximately $5,600) for delay of passenger; b. 1,000 (one thousand) SDR (approximately $1,350) for claim related to baggage; and

c.

17 SDR (approximately $23) per kilogram for cargo.

Jurisdiction: Under the Warsaw Convention system a law suit against the air carrier could be entertained only at one of the four places, likea. b. c. d. the domicile of the carrier, principal place of business of the carrier, where the ticket was purchased, place of the destination of the passenger. But the Montreal Convention with its article 33 establishes a fifth jurisdiction and says that a suit may also be broughte. in the country where the passenger permanently and principally resides at the time of the accident, so long as the carrier provides services to that country either directly or via an agreement with another carrier. It further provides that nationality of the passenger will not be taken into account in deciding the place of his principal and permanent residence and the question of law shall be governed by the law of the court seized of the case.

Apart from the above, in the claims relating to cargo, the party concerned may opt for the settlement of such dispute through arbitration under article 34.

Limitation period: Article 35 of the convention puts a bar of limitation on the claims and says that the very right to claim damages shall be extinguished if the action is not brought within the period of two years from a) the date of arrival at the destination, b) the date on which the aircraft ought to have arrived, or c) the date on which the carriage stopped.

Conclusion: In conclusion, I would say that just as the technology in the field of international aviation has changed, so too the law which governs international aviation has changed. Like technology, the Montreal Convention does not necessarily make everyones life easier; but like technology, the Montreal Convention is here to stay.