A blog post by Michael Monteleone, Junior Associate.

The Convention for the Unification of Certain Rules for International Carriage by Air (hereinafter “Montreal Convention”) was signed in Montreal on May 28, 1999.[1]  The Montreal Convention supplanted an earlier international convention, the Convention for the Unification of Certain Rules Relating to International Carriage by Air (hereinafter “Warsaw Convention”), which was the first international convention to address the liability of air carriers on international flights.[2]  The Warsaw Convention was thought of as a “necessary solution of the problems of international air transportation that otherwise could not be met adequately by the application of the different national laws.”[3]  The Warsaw Convention was deemed outdated around the 1950s when member states agreed that its original purpose, protecting the growing airline industry from liability, was no longer manageable.[4]  The member states’ 1955 revision to the Warsaw Convention identifies a clear instance where public policy outweighed the international agreement. Today, the Montreal Convention is at a point in its tenure where public policy may once again need to step in and make an intervention.

Article 29 of the Montreal Convention provides that “any action for damages, however founded, whether under this Convention or in contract or tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention . . .”[5]  Article 29 is known as the “exclusivity provision” and has barred individuals from bringing suits for injuries sustained on international flights.  Historically, the exclusivity provision has preempted claims of “psychological damage, but no physical injury.”[6]  Additionally, the exclusivity provision “precludes a passenger from maintaining an action for personal injury damages under local law when her claim does not satisfy the conditions for liability under the Convention.”[7]

The exclusivity provision is the main issue in the United Kingdom Supreme Court case Stott v. Thomas Cook Tour Operators Ltd., where a severely disabled man’s claim for damages stemming from a psychological injury he sustained while aboard an international flight was preempted by the exclusivity provision, leaving him without a remedy.[8]  Unlike other international treaties, the Montreal Convention does not provide an express exception for conflictions of human rights violations of member states.  Cruel treatment of a disabled passenger is a human rights violation, and a clear sign that it is time for public policy to bring the member states back together to renegotiate terms of the Montreal Convention.

[1] Convention for International Carriage by Air, May 28, 1999, S. TREATY DOC. No. 106-45 (hereinafter Montreal Convention).

[2] Convention for the Unification of Certain Rules Relating to International Carriage by Air, Oct 12, 1929 (hereinafter Warsaw Convention).

[3] CONSTANTINE CHRISTODOULOS HADJIDIMOULAS, THE WARSAW CONVENTION OF 1929, at 14 (Yale University, 1954).

[4] Id. at 226.

[5] Montreal Convention, supra note 1, art. 29.

[6] El Al Israel Airlines Ltd. v. Tseng, 525 U.S. 155, 175 (1999).

[7] Id. at 176.

[8] See generally Stott v. Thomas Cook Tour Operators Ltd. [2014] UKSC 15 (appeal taken from Eng.).