Liability Conventions II

Table of Contents

Liability for Damages

Where damage is caused to persons or property by any person in or article falling from an aircraft in flight, taking off or landing, a special provision applies.

Damages are recoverable from the owner of the aircraft in respect of such damage or loss without proof of negligence or intention, as if caused by his willful act, neglect, or default, except where the loss or damage is contributed to by the negligence of the person by whom the same is suffered. Where the loss or damage is caused in circumstances where damages are recoverable from the owner in respect of loss, and some other person has a legal liability to pay damages, the owner is to be indemnified by that other person against a claim.

Where an aircraft has been let out or hired for a period exceeding 14 days, and no pilots or crew operator is in the employment of the owner, then the hirer or lessee is to be treated as the owner for the above purposes. The above provisions may be changed by the terms of a contract and are subject to international Conventions imposing limitations on the amount of damages etc.

A person is not liable for damages without gross negligence or willful misconduct either on his part or that of his employees in excess of certain caps on liability. The caps vary depending on the type of aircraft involved.

The limitation does not apply if the person who caused the damage is not the owner and was in possession or control of the aircraft without the permission of the owner. The limitation is not available unless an approved insurance policy is in force in relation to the aircraft, the aircraft owner is exempted or the claim is against a person where another was in possession or control of the aircraft without the authority of the owner.

Mandatory Insurance

It is unlawful to fly or permit an aircraft to be flown unless there is a liability insurance policy in force in respect of it, compliant with certain conditions. Breach of this obligation is an offence. The Minister may declare approved aircraft insurers. A certificate of insurance must be issued in respect of the policy, much like a car licence.

Certain persons may be exempted from the requirement of insurance. Exemption may be granted on the basis of making certain deposits with the court offices; the maximum amount to be lodged is to be determined by the Minister. It is dependent on the number of aircraft. Judgments and awards against aircraft owners may potentially be paid from the money deposited in court offices.

Liability Limits

Under the Montreal Agreement between the US and IATA in 1975, IATA airlines consented to an increased liability of €75,000 for international flights with US a stopping point, origin or destination.

The IATA Intercarrier Agreement of 1995 agreed to waive the Warsaw Convention and Hague Protocol limitations for passenger liability or death arising out of certain accidents. The agreement excluded absolute liability for passenger injury or death and waived the “all necessary measures” defence for the elements of claims below 100,000 SDR. Strict liability applied below 100,000 SDR in respect of claims above that level. A defence on the basis of necessary measures applied.

The above agreement effectively set out international liability where carriers were in the United States for the following for over 30 years.

The EU adopted a Regulation in 1997 applicable to airline licensing in the EU. It, in effect, replicated the IATA agreement between carriers.

Airlines are subject to unlimited liabilities, the strict liability provisions apply with the with “all necessary measures” defence for the part of the claim above 100,000 SDR. Carriers could invoke contributory negligence.

By the end of the 20th century, the limitations on liability for personal injury were seen as inappropriate, given the development of the airline industry and general principles of liability.

Application of Conventions

The Montréal Convention accords with the IATA agreement and abolished limits on recovery for death and personal injury. There is strict liability for proven damage up to 100,000 SDR. There is unlimited liability above this level with a relatively limited number of defences.

The Convention applies where a point of departure or arrival is in two states which have adopted the Convention or within a single state if in that latter case, there is a stop in another State regardless of whether that state is a party to the Convention. It does not apply to flights within States, even if they cross third-party territory.

When there are successive carriers, the claim may be brought against the carrier which performed the carriage during the accident or delay occurred. This is unless the first carrier undertook liability for the entire trip, expressly. The issue is less common in modern times, where code-sharing and partnership arrangements are common. The carrier’s liability includes the contractor’s liability under code-sharing arrangements, and there are no successive carriers as such.

The Montréal Convention is intended to cover carriage by entities other than the contracting carrier, including codeshare partners. This extends the coverage to alliance partners which perform parts of international transport .carriage, which are not the carrier who contracts with the passenger.

The Montréal Convention is less prescriptive in relation to documentary procedures which apply with respect to the carriage of cargo. They are largely left to agreement between the consignor and carrier. The consignor remains responsible for the accuracy of the details appearing in the airway bill. The rights of a consignor and a consignee regarding the air carrier are broadly retained by the Warsaw regime.

Contract Requirements

The air waybill should set out the weight of the consignment, the place of departure and the destination in any applicable foreign stopping place in the case of transport within a State.

A carrier may reduce liability for loss to cargo due to any of the following events:

apparent defect, quality or vice;
defective packaging performed by an entity other than the carrier;
act of war or armed conflict;
act of a public authority in connection with the entry, exit or transit.

An individual or collective document of carriage of passengers includes details of stopping destinations in third States where inter-state travel is involved. The older Warsaw regime rules regarding the content and nature of the ticket are abandoned. Electronic ticketing is facilitated. Airlines must give passengers notice of the Convention’s liability rules. The failure to do so does not automatically avoid the limitations.

The former requirement for luggage tickets is no longer applicable. A baggage identification tag must be supplied in respect of each piece of checked luggage.

Accidents Covered

The Convention applies to accidents causing death or injury that take place on board an aircraft or in the course of operations of embarking and disembarking. Accidents generally are understood to be unusual or unexpected events which is not self-inflicted. The reaction to the normal operations of the aircraft would not constitute an accident. A self-inflicted injury by an intoxicating person is an accident. The failure to provide medical assistance does not appear to be an accident.

The Convention applies to an accident arising from air travel. The accident must be characteristic of air travel or derived from it. Claims based on deep vein thrombosis are generally not considered accidents.

The accident must cause death or personal injury in order to fall within the Convention. In recent decades, the courts in most Western jurisdictions have extended the concept of bodily injury to include certain psychological injuries with demonstrable, diagnosable characteristics. Psychological harm has been widely accepted in respect of posttraumatic shock.

The Montréal Convention had contemplated negotiations incorporating reference to mental injury as such. However, it simply refers to bodily injury, which may refer to both physical and mental injury.

Clauses in international air carriage contracts which purport to change the law to be applied or the jurisdiction are rendered void. This makes the Montréal system, in effect, mandatory. Clauses which purport to relieve the carrier are ineffective to the extent they are inconsistent with the Convention.

Liability & Limits

Strict liability applies up to 100,000 SDRs. Unlimited liability above that level. The earlier reforms referred to above are reflected. The claimant must prove damages up to €100,000. The only defence is, in effect, contributory negligence. Over €100,000, it is presumed the air carrier is responsible unless it proves that damages were not due to its negligence or wrongful act or that such act was due solely to the negligence or wrongful act of a third party. In practice, it is difficult for air carriers to invoke the defences, as they have to disprove negligence.

The SDR ceilings may be reviewed every five years by the ICAO. If inflation exceeds 10% cumulatively, procedures apply to adopt the variation under ICAO procedures. Provision is made for the translation of SDRs into the relevant domestic currency.

Parties may agree to higher limits than those specified above or no limits whatsoever.

Where an aircraft accident results in death or injury, the airline must, if its national law so requires, make advance payments without delay to persons who are entitled to compensation to meet their immediate economic needs. The Convention prohibits punitive, exemplary and other non-compensatory damages.

Actions for damages, whether under the Convention or in contract or tort, must be brought under the conditions and liabilities set out in the Convention. Accordingly, no other forms of action are permitted under domestic tort, civil liability or contract law.

Jurisdiction

The Montréal Convention, in common with the Warsaw Convention, provides the basis of jurisdiction on a number of alternative grounds:

the domicile of the air carrier;
its principal place of business;
its place of establishment that made the contract of carriage;
the final destination.

Further ground applies in the case of liability for death and injury, namely that where the passenger has his principal and permanent residence when the accident occurred. The State of residence must be a place to and from the carrier operates services for the carriage of passengers by air, either on its own aircraft or in another’s aircraft, pursuant to a commercial agreement and in which the carrier conducts its business of carriage or passengers by air from premises leased or owned by the carrier itself or by another carrier with whom it has a commercial agreement.

Liability Issues

Procedural questions are governed by the law of the court concerned in accordance with well-established conflict of law rules.

The Convention does not prejudice liability or recourse against any other party. This allows the claimant, carrier and other parties to claim and seek indemnities from third parties, such for example, as a negligent manufacturer.

States must require carriers to maintain adequate insurance covering their liability under the Convention. They may require proof of insurance to be carried and produced.

In common with the Warsaw Convention, the Montréal Convention is enforced by domestic courts. There is no dispute resolution mechanism as such.

The Montréal Convention provides for recovery of damages for delay. This is capped at 4150 SDRs. Liability for baggage delay is limited to 1130 SDR. 17 SDR per kilogram is the maximum recovery.

Carriers who have taken all measures reasonably required to avoid the delay may avoid liability. Equally, they may be able to show that it was impossible to take such measures. The provisions require court action in respect of delay may not be generally economic to take.

The standalone regulation, EU 2004 Regulation, provides for fixed liability for delay, cancellation and denied boarding claims, provides a more efficient remedy and supervenes the above provisions.

Montreal Convention in Domestic Law

The Air Navigation and Transport (International Conventions) Act 2004 allows Ireland to ratify the Montreal Convention and gives it the force of law in Ireland. The Montreal Convention is an updated replacement of the Warsaw Convention and rules relating to international carriage by air.

The system provides a worldwide system of standards and rules for carriage by air and, in particular, common rules with respect to the limitation of liability for the carriage of passengers, cargo and baggage in the event of damage, loss or delay.

The new Montreal Convention supersedes the Warsaw Convention with states that implement it. Where air travel takes place between Ireland and other states which have not ratified the Montreal convention, the act provides that the most recent convention common to both Ireland and that state will apply. The government may certify states which are contracting parties to the convention.

The convention facilitates passengers by permitting them to bring out legal action in the state where the passenger’s principal residence is. This is in addition to the previous basis of jurisdiction, which is the place of business of the airline, place of the accident, place of origin and intended point of destination.

The Warsaw Convention is amended by Protocol IV of the 1975 Montreal Convention and the 1999 Montreal Convention by giving the force of law.

The first two conventions are already part of Irish law under the Air, Navigation and Transport Acts. The French language is to prevail if there are differences between the English and the original French text of the contravention.

The liability of a carrier if a passenger dies is set out in the Act. It is based on equivalent provisions of the Air, Navigation and Transport Act.

The Minister is empowered to notify and make notifications as required by the Convention. This allows the state to declare the convention shall not apply to international flights carried out by the state itself for non-commercial or military purposes. It is not intended to make such a notification.

The Minister may extend the convention to apply to internal, no international flights. Internal flights are already subject to similar provisions under EU regulations.