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April 2006


The Montreal Convention: The scram jet of aviation law

By Gary A. Gardner and Brian C. McSharry

“The Montreal Convention is not an amendment to the Warsaw Convention. Rather, the Montreal Convention is an entirely new treaty that unifies and replaces the system of liability that derives from the Warsaw Convention.” 1

The Warsaw Convention became law during the infancy of inter-continental aviation, and it soon proved itself incapable of adequately regulating liability issues in the burgeoning jet age. Thus, in an effort to raise the amount awardable to injured passengers, supersede the Warsaw Convention’s reliance on the out-dated gold standard, and update the rules with respect to the movement of cargo, the signatory nations were ultimately provided with additional instruments, such as the Hague Protocol (1955); the Guadalajara Convention (1961); the Guatemala City Protocol (1971); the 1975 Additional (Montreal) Protocols, numbers 1-3; and Montreal Protocol Number 4.

Not all states executed all of these additional instruments, which resulted in a hodgepodge of laws that became known collectively as the Warsaw “system.” This system was frustrating for the injured passenger, as well as the courts, because it was frequently difficult to determine which rules applied to a given flight, and what damages were awardable.

As the Court of Appeals for the Second Circuit describes in Chubb & Son, Inc. v. Asiana Airlines:

[t]he Warsaw Convention “system” includes the various laws, treaties and individual contracts governing the international transportation of persons, baggage, and goods by air. No one treaty or contract governs the relationships of one State with other States. A single State might be bound to one version of the Warsaw Convention with one State, another version of the Warsaw Convention with another State, a separate bilateral treaty with another State, and a separate contract with a private party. 2

The Montreal Convention3 was ratified by the United States Senate on November 4, 2003 thereby entering into our law.4 As a ratified Federal Treaty, the Montreal Convention is the “Supreme Law of the Land,” and it preempts all State and Federal law to the contrary. 5

Prior to the ratification of the Montreal Convention, a controversy involving a party injured on an international flight would most likely result in an application of the Warsaw Convention.6 Under Warsaw, a passenger who sustained personal injury was limited to recovering a maximum of 125,000 gold francs (which approximates US$10,000), if the accident which caused the injury took place on board the aircraft or while embarking or disembarking. 7

Given the confusing patchwork of rules established by the Warsaw Convention, it was only a question of time before a new Convention was ratified. Moreover, this new Convention would necessarily reflect the changing goals of the international community vis-à-vis air carriers and their passengers. The Montreal Convention filled this role:

Whereas the “primary aim of the contracting parties to the [Warsaw] Convention” was to limit “the liability of air carriers in order to foster the growth of the commercial aviation industry, the contracting parties to the Montreal Convention expressly approved that treaty because, among other reasons, they recognized “the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution.” Montreal Convention, pmbl. The Senate has similarly recognized that “the new Montreal Convention represents the culmination of decades of efforts by the United States and other countries to establish a regime providing increased protection for international air travelers and shippers.” S. Exec. Rep. No. 108-8, at 2 (2003). Hence, commentators have described the Montreal Convention as a treaty that favors passengers rather than airlines. See, e.g., Thomas J. Whalen, The New Warsaw Convention: The Montreal

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