III. Transportation Law

The Montreal Convention

• Extent of Liability of Air Carrier a. Passenger b. Baggage c. Limitations to Liability
• Liability for Delay

Montreal Convention

On 10 Aug. 2015, the Philippine Senate concurred in the ratification of the Convention for the Unification of Certain Rules for International Carriage by Air¹, Montreal, on 28 May 1999.

Applicability of the Montreal Convention

The Montreal Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking. (Art. 1(1), MC)²

International Carriage

International carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transshipment, are situated either:

• Within the territories of two States Parties; or
• Within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party.

Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of the Montreal Convention. (Art. 1(2), MC)³

Q: How is carriage performed by several successive air carriers treated under the Montreal Convention?

A: Carriage to be performed by several successive carriers is deemed, for the purposes of this Convention, to be one undivided carriage if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territory of the same State. (Art. 1(3), MC)⁴

Liability under the Montreal Convention

The carrier is liable for damage under the following instances:

• Death or bodily injury of a passenger;
• Destruction, loss, or damage to baggage or cargo; and
• Delay in carrying passengers, baggage, or cargo, subject to the Convention’s conditions and defenses.

DEATH OR INJURY OF PASSENGER

Damage Occasioned by Delay in the Carriage of Passengers, Baggage or Cargo

The carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures. (Art. 19, MC)⁵

Court Not Prevented from Awarding Costs, Expenses

The limitations of liability shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff, including interest.

The foregoing provision shall not apply if the amount of the damages awarded, excluding court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later. (Ibid.)

Venue for Actions under Montreal Convention

At the plaintiff's choice, an action for damages must be instituted within the territory of a State Party before the court of:

• The domicile of the carrier;
• The carrier's principal place of business;
• The carrier's place of business through which the contract was entered into; or
• The court at the place of destination. (Art. 33(1), MC)⁶

With respect to damages arising from passenger death or injury, the action may be initiated before:

• Any of the courts listed above; or
• The court in the territory of a State Party where the passenger maintained their principal and permanent residence at the time of the accident, and to or from which the carrier runs air passenger services. (Art. 33(2), MC)⁷ NOTE: The carrier operates these services either with its own aircraft or through another carrier's aircraft under a commercial arrangement, and conducts its passenger transport operations from premises owned or leased either by itself or by another carrier with which it maintains a commercial agreement. (Ibid.) NOTE: Matters of procedure are governed by the domestic law of the court seized of the dispute.

Exoneration from Liabilities

If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage.

When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger. (Art. 20, MC)⁸

Death of Person Liable

In the case of the death of the person liable, an action for damages lies in accordance with the terms of this Convention against those legally representing his or her estate. (Art. 32, MC⁹)