Recent Developments under the Montreal Convention

THE UNIFICATION of Certain Rules for International Carriage by Air (the Convention of 1999 or Convention), (1) came into force on November 4, 2003, updating and replacing the uniform system of liability for international air carriers previously established by its predecessor, the 1929 Warsaw Convention. (2) There are currently 87 parties to the Montreal Convention with Australia being one of the most recent ratifiers, effective January 24, 2009. In contrast to the Warsaw Convention's goal of limiting the liability of air carriers in order to foster the growth of the fledgling commercial aviation industry, the Montreal Convention was adopted with the goal of ensuring protection of the interest of consumers in international carriage by air and the need for equitable compensation based on principles of restitution. (3) The Montreal Convention provides a liability system for the delay, loss or damage to baggage or cargo as well as the delay, injury or death of passengers arising from international air carriage. It effectively reduces six different legal instruments under the Warsaw scheme to a single instrument. (4) Another primary change is that the Montreal Convention establishes a two tier system of liability for personal injury and/or death. The first tier imposes strict liability up to 100,000 Special Drawing Rights (SDR's) (5) irrespective of a carrier's fault, with the second tier allowing for recovery beyond 100,000 SDR's if the carrier was at fault. Nonetheless, the desire for uniformity in the laws governing carrier liability arising from international air travel remained, as did many of the terms and language of the Warsaw Convention. (6) While a new consumer protection policy was stated, the prior and existing jurisprudence regarding liability rules was retained, with the specific purpose of not disrupting the existing jurisprudence. (7) The drafters fully expected that the Montreal Convention would be construed consistently with the precedent developed under its predecessor. (8) Not surprisingly, disputed issues under the prior Warsaw scheme continue to emerge under the new scheme. This article addresses many of these disputed areas, particularly in those areas where the Montreal Convention has impacted the precedents established under the Warsaw Convention. Nonetheless, the desire for uniformity in the laws governing carrier liability arising from international air travel remained, as did many of the terms and language of the Warsaw Convention. (9) While a new consumer protection policy was stated, the prior and existing jurisprudence regarding liability rules was retained, with the specific purpose of not disrupting the existing jurisprudence. (10) The drafters fully expected that the Montreal Convention would be construed consistently with the precedent developed under its predecessor. (11) Not surprisingly, disputed issues under the prior Warsaw scheme continue to emerge under the new scheme. This article addresses many of these disputed areas, particularly in those areas where the Montreal Convention has impacted the precedents established under the Warsaw Convention. I. Preemption/Exclusivity One continuing area of dispute is the preemptive scope of the Convention. Since a primary goal of the Convention is uniformity in interstate carriage, it is not surprising that the preemptive scope of the Convention has been deemed broad by many courts, who have held that the Convention completely preempts all claims arising out of international flight. Nonetheless, other courts have held that the Convention's preemptive reach is not absolute, and litigation continues over the particular circumstances when state or local law may apply. Article 29 of the Convention sets forth a broad preemption provision, which states: In the carriage of passengers baggage and cargo, any action for damages, however, founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention . …

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