Applicable Law In Montreal Convention Cases: The Decision In Silverman v Ryanair DAC [2021] EWHC 2955 (QB)

• Published date: 23 December 2021
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Contracts and Commercial Law, Trials & Appeals & Compensation
• Law Firm: 1 Chancery Lane
• Author: Ms Sarah Prager

Claims arising out of carriage of passengers by air are (very largely) governed by the Montreal Convention, in force in the UK in its modified form by operation of Regulation (EU) No.889/2002, which has survived Brexit by reason of s.3 of the European Union (Withdrawal) Act 2018. The Convention as modified is intended to, and does, stand alone as an autonomous instrument providing for jurisdiction and for its own regime on limitation, liability, interim payments and recoverability of loss; but it provides very little assistance as regards how the court considering claims made under the Convention should approach the assessment of damages. Practitioners have therefore fallen into the habit of relying on the law of the forum as informing issue of quantum, but until now there has been no authority on this issue.

Written by Sarah Prager, barrister at 1 Chancery Lane.

Silverman v Ryanair DAC [2021] EWHC 2955 (QB) (judgment handed down 10^th November 2021)

What are the practical implications of this case?

Where a person is injured during the course of carriage by air, pursuant to Article 29 of the Convention (s)he may only bring a claim under the Convention; it is not open to the Claimant to bring a claim in contract or in tort. Where the Convention applies, therefore, it is the only cause of action possible. And the Convention not only applies to those incidents occurring during the course of a flight; accidents which take place during the course of embarkation and disembarkation of an aircraft also fall within the Convention regime. So, for example, a person who slips and falls whilst walking through a boarding gate on his or her way to the aircraft may only bring a claim under the Convention, but that claim will be governed by the strict liability regime set out in Article 17.

Historically practitioners and the courts have, as a matter of convenience, applied the law of England and Wales to the quantification of damages under the Convention; but in Silverman v Ryanair DAC [2021] EWHC 2955 (QB) the court was asked to determine once and for all what law applies to this issue under the Convention, and whether it should be the law applicable under the contract or the tortious applicable law. Now that this determination has been made, it is clear that practitioners and courts should follow the decision of the court rather than the habit adopted for the sake of convenience and should not simply fall back on the law of the forum as determining the value of these...