Montreal Convention now in force

As if you hadn't realised, the Montreal Convention 1999 has of course come into force since our last issue. From 4 November 2003 it applies in the first 31 States Party. At the time of writing, Saudi Arabia and Bulgaria have become the 32nd and 33rd states to deposit their instruments of ratification such that the Convention will come into force in those countries on 14 December 2003 and 9 January 2004.

As MC99 enters into force more widely, the existing patchwork of air carriers' liability regimes will become more seamless. There will remain variations in treatment of old chestnuts such as the recoverability of pure mental injury, but gradually the world's airlines will move to a universal regime founded on negligence-based passenger liability over SDR100,000, absolute cargo liability at 17SDR/kg and with the additional fifth jurisdiction. However, in the short term, MC99 has the effect of adding a layer of complexity as to which regime governs any particular carriage.

The principal point to bear in mind is that the new Convention will not apply to all carriage to or from a State Party, nor to all carriage by carriers based in such states (in the absence of, for instance, amendment to that carrier's terms of carriage systemwide). It applies to carriage within the definition in Article 1, in simple terms carriage between two States Party to MC99 or starting and finishing in a State Party, with an agreed stopping place anywhere outside that state.

To illustrate the permutations, consider three passengers on a flight operated by a UK carrier from the US to the UK in December 2003. One is on a one way ticket; one on roundtrip carriage starting in the US, and one on the return sector of roundtrip carriage from the UK.

Assuming the carrier had a place of business in the US, it would be subject to US jurisdiction whose Courts should, correctly, apply MC99 to the first roundtrip carriage. Until MC99 comes into force for the UK, the English Courts would not do so, despite the fact that the UK has signed the Convention and implemented secondary legislation to bring it into force, but should apply Warsaw/Hague/MAP4.

However, none of the Courts should apply MC99 to any of the other carriage. Neither case satisfies the definition within Article 1: carriage from one State Party to another, or starting and finishing in a State Party with an agreed stopping place elsewhere.

The result is that passenger claims in excess of SDR100,000 - in other words...

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