Convention, 25 Air & Space L. 12, 14 (2000) (“The Montreal Convention is no longer a Convention for airlines. It is a Convention for consumers/passengers.”) 8
The Montreal Convention supersedes the Warsaw Convention as and between states that are party to both the Montreal and Warsaw Conventions. Consequently, Courts have called the Montreal Convention the “successor” to the Warsaw Convention.9 However, the Warsaw scheme remains, and governs in cases where a controversy involves States that are
signatories to the Warsaw Convention, but not the Montreal Convention.10
That having been said, the aim of the signatories
to the Montreal Convention was to phase out the Warsaw scheme and have the Montreal Convention ratified by all countries engaged in international airline travel and trade. 11
The Montreal Convention differs from the Warsaw Convention in several respects. For example, under the Warsaw system, the French text controlled over that of the English text.12 However, under the Montreal Convention, in keeping with its goal of rationalizing international aviation law, the English text of the Montreal Convention is equally authoritative to the French text. As such, when applying the Montreal Convention, American courts will no longer be forced to resolve any ambiguities in the text by referencing French dictionaries.
Similarly, the Montreal Convention finally and authoritatively terminates the Warsaw Convention’s reliance on the antiquated gold franc as a method of compensating injured passengers. The new Convention eliminates the gold standard and utilizes the system of Special Drawing Rights (SDRs), the value of which is to be determined by the International Monetary Fund. Moreover, Chapter III of the new Convention creates a two-tiered damages schema with respect to passenger compensation.
In Article 17, the Convention first establishes the necessary elements for recovery by an injured passenger as follows:
1. The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. 13
Thus, once the passenger has proven that he sustained bodily injury due to an accident while on board, boarding, or disembarking an aircraft, under Article 20 of the Montreal Convention, the passenger may recover as follows:
1. For damages arising under paragraph 1 of Article 17 not exceeding 100,000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.
2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 Special Drawing Rights if the carrier proves that:
(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or,
(b) such damage was solely due to the negligence or other wrongful act or omission of a third party.
Thus, under the Montreal Convention, a carrier is strictly liable for bodily injury in the amount of 100,000 SDRs (currently approximately US$150,000). In order to recover an amount up to 100,000 SDRs, all that the passenger need establish is that an injury occurred as discussed above. Under Article 20 of the Convention, however, the carrier is entitled to avail itself of the defense of exoneration, under which it may prove that all or some of the damage was caused by the passenger’s own negligence: