Gubay v SAA: Stretching The Boundaries Of Convention Exclusivity?

In the context of a claim alleging misrepresentations made as to

an aircraft business class seat, an English court has upheld the

foundation stone of exclusivity under the Montreal Convention

1999.

"Whilst a conclusion which leaves a claimant without a

remedy for an undoubted wrong is unattractive to those steeped in

the common law, that conclusion is the result of a balance struck

by the high contracting parties in the interests of certainty and

uniformity...".

When Mr Gubay boarded an SAA flight from London Heathrow to Cape

Town in December 2005 he was disappointed to discover that,

although the frame of his business class "flat bed" seat

reclined 180˚, the configuration of the lumbar supports

prevented the seat surface itself from lying perfectly flat and

without undulation. He claimed the same exacerbated a pre-existing

arthritic condition. Fortunately for Mr Gubay, on his return flight

he was upgraded to first class where he found the seating

accommodation to be more to his liking.

On his return to the UK, Mr Gubay commenced proceedings against

SAA in the Manchester county court, alleging misrepresentation and

breach of contract. No claim was made under Article 17 of the

Montreal Convention 1999 for bodily injury. Mr Gubay assessed his

claim at between £5,000 and £15,000 despite having only

paid £1,140 for the sector about which he complained.

Unwilling to compromise his claim for a realistic level of

compensation, he pursued the matter to trial.

Misrepresentation

SAA was unable to defend the misrepresentation argument. At the

time that the contract of carriage was concluded, it was by no

means certain that Mr Gubay would end up with the particular seat

product about which he complained: SAA were operating a number of

new aircraft on the route concerned some of which did provide the

type of true "flat bed" that fully answered the

description. The court found that the description ("flat

bed") that SAA chose to apply to the seating available in

business class on the subject flight was materially inaccurate and

misleading, although not made fraudulently. The description was

applied to existing first class seats to which the term was in fact

appropriate and it would seem that there had been a marketing

decision to apply the term also to business class seating across

the board, perhaps without appropriate consideration to the

accuracy of the same to all business class seats.

Exclusivity

However, of greater interest is argument on the...