By Taylor Dickmann, Law Clerk, on behalf of Ramos Law Aviation Team
Background
In 1929 the Warsaw Convention was the first internationally recognized treaty regarding Air Carrier Liability. This convention sought to promote commercial air travel and grow the industry in its early phases. The Warsaw Convention accomplished this by limiting airline liability and in effect lowered the overall cost of air-travel sustained by air carriers.1 In 1929, however, air travel was much more dangerous than it is today.
The Warsaw Convention was amended multiple times throughout the growth of the aviation industry and its popularity since 1929. Finally, in May 1999, a new convention was held by the International Air Transport Association (IATA) in Montreal, Canada, which established what is commonly referred to as the Montreal Convention (hereinafter, “The Convention,” or “MC99”). This convention superseded the Warsaw Convention and included many new changes, such as increased passenger rights and liability for air carriers.2 The Montreal Convention now includes over 130 countries and applies to most international flights between participating countries.
Application
The Montreal Convention stipulates damage liability arising out of international air carriage, which includes passenger flights. The Convention does not cover domestic flights between two points within the same country. For example, a flight from Los Angeles to New York would not apply under The Convention, however one between Toronto and New York would. The Convention also includes trips that start and end within the same country but include an international connection.3
The Convention covers damage, lost, and delayed baggage, as well as personal injury and death claims. From the moment the bag is checked and in the hands of the airline until the moment it is picked up from the carrousel,4 the airline assumes total responsibility for it. If the unchecked bag is lost, damaged, or destroyed due to the fault of the air carrier, or one of its employees, they may also be liable for it. A bag may be considered lost if within 21-days you do not receive it, or the airline declares it to be lost before that time.
The airline may also be liable for damages caused by delays, unless the carrier can prove it took reasonable measures to avoid such delays.5
Typically, reasonable measures performed in response to inclement weather or aircraft maintenance issues will relieve an air carrier from liability. Another way the airlines may be exonerated from damages is if it can prove the damages were wholly, or partly, the fault of the acts or omissions of another party.6
COMPENSATION LIMITS
As consideration for entering the Convention, air carriers are only liable for damages up to a stipulated amount.7 The international currency used by the Convention is known as Special Drawing Rights (SDR). As of December 2022, one SDR is equivalent to 1.33 US Dollars and the latest update to the limitations occurred in December of 2019.
In the event of a flight delay, the Convention limits damages to 5,346 SDR.8 This does not include luggage delays, but rather delays to the flight itself and/or passengers’ trips if the flight happens to be on time. As aforementioned, if the airline took reasonable measures to mitigate the delay and it was at no fault of their own, they are expunged from liability. Damages may include toiletries needed, clothes, hotel expenses, and more, so long that it is a proximate need and a result of the delay.9
In the event that baggage is lost, destroyed, or damaged, liability is limited to 1,288 SDR,10 unless otherwise stipulated contractually with the airline.11 For cargo, the possible damages are based on weight where limitations are set to 22 SDR per kilogram.12 Some airlines often will use what is called “excess value” charges that allow you to pay extra as an insurance that increases the limitations on the damages that you may collect. Traveler’s insurance is also a viable option for those who travel regularly to protect from loss.
HOW TO ENFORCE YOUR RIGHTS
If you believe you have a claim that falls under the Montreal Convention, you must submit your requests in a timely manner, be sure to check with the Montreal Convention for the specific deadlines, however, the sooner, the better. You can file an electronic complaint here, with the US Department of Transportation, who will directly forward your complaint to the airline. You should ensure that all the receipts and necessary information are included, and your request should specify that you are asserting a claim pursuant to the Montreal Convention. Once submitted, the carrier is required to acknowledge the claim within 30 days of receipt and provide a response within 60 days.
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1 75 A.L.R. Fed. 525 (Originally published in 1985)
2 Convention for Int’l Carriage by Air, S. Treaty Doc. No. 106-45 (May 28, 1999) 1999 WL 33292734 (2000)
3 Id. Art. 1
4 Id. Art. 18
5 Id. Art. 19
6 Id. Art. 20
7 Id. Art. 25
8 2019 review of the limits of liability conducted by ICAO under Article 24 of the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montréal on 28 May 1999 (Doc 9740) (Montreal Convention of 1999), the revised limits of liability established under Articles 21 and 22 of the said Convention, in Special Drawing Rights (SDRs), effective as of 28 December 2019.
9 Id.
10 Id.
11 Convention for Int’l Carriage by Air, S. Treaty Doc. No. 106-45 (May 28, 1999) 1999 WL 33292734 (2000)
12 2019 review of the limits of liability conducted by ICAO under Article 24 of the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montréal on 28 May 1999 (Doc 9740) (Montreal Convention of 1999), the revised limits of liability established under Articles 21 and 22 of the said Convention, in Special Drawing Rights (SDRs), effective as of 28 December 2019.
For more information, please visit Airhelp.com or the Montreal Convention published online through IATA.