A GLANCE AT THE MONTREAL CONVENTION AND TURKISH AVIATION LAW
A GLANCE AT THE MONTREAL CONVENTION AND TURKISH AVIATION LAW
The Montreal Convention 1999 (MC99) establishes airline liability in the case of death or injury to passengers, as well as in cases of delay, damage or loss of baggage and cargo. It unifies all of the different international treaty regimes covering airline liability that had developed haphazardly since 1929. MC99 is designed to be a single, universal treaty to govern airline liability around the world.
The Montreal Convention (formally, the Convention for the Unification of Certain Rules for International Carriage by Air) is a multilateral treaty adopted by a diplomatic meeting of ICAO member states in 1999. It amended important provisions of the Warsaw Convention’s regime concerning compensation for the victims of air disasters. The Convention attempts to re-establish uniformity and predictability of rules relating to the international carriage of passer gers , baggage and cargo. Whilst maintaining the core provisions which have served the international ar transport community for several decades (i.e., the Warsaw regime), the new treaty achieves modernization in a number of key areas. It protects passengers by introducing a two-tier liability system that eliminates the previous requirement of proving willful neglect by the air carrier to obtain more than US$75,000 in damages, which should eliminate or reduce protracted litigation.[
Campaigning for global ratification
As September 2018, there are 133 parties to the Convention. Included in this total is 132 of the 191 ICAO Member States plus the European Union. The states that have ratified represent 131 UN member states plus the Cook Islands. Other states that have ratified include Argentina, Australia, Brazil, Canada, China, all member states of the European Union, India, Indonesia, Israel, Japan, South Korea, Malaysia, Mexico, New Zealand, Nepal Norway, Pakistan, Russia Saudi Arabia, Singapore, South Africa, Switzerland, Turkey, Ukraine, the United Arab Emirates, and the United States.[ ( https://en.wikipedia.org/wiki/Montreal_Convention)
The global ratification of MC99 is an industry priority. MC99 gives consumers better protection and compensation and facilitates faster air cargo shipments, while airlines enjoy greater certainty about the rules affecting their liability. Universal ratification of MC99 by States will provide significant benefits to all parties:
- Passengers will benefit from fairer compensation and greater protection.
Shippers and those involved in the air cargo supply chain will benefit from the ability to make claims without the need for expensive and time consuming litigation. They will also be able to replace paper documents of carriage, such as Air Waybills, with electronic versions, thus facilitating faster and more efficient trade. - Finally, airlines will benefit from greater certainty about the rules governing their liability across their international route network. IATA is thus advocating for the urgent ratification of MC99 by all remaining states.
MC99 also establishes the legal framework that allows airlines to make use of electronic documentation for shipments, thereby reducing costs and increasing efficiency.
Collaboration is key
However, only 132 of the 191 ICAO-contracting States, or 68% of the total are Parties to it. A number of fast-growing aviation markets in Asia, such as Bangladesh, Sri Lanka and Vietnam, have yet to sign up. This means that a patchwork of liability regimes continue exists around the world. The result is unfairness, confusion and complexity in determining which regime covers a particular passenger or cargo itinerary. Claims handling and litigation from accidents or incidents are unnecessarily complicated.
Recognizing the significant benefits that MC99 offers, the 39th Assembly of the International Civil Aviation Organization (ICAO) that took place in 2016 adopted Resolution A39-9. This urges all States that have not done so to ratify MC99 as soon as possible.
Compensation Purely For Psychiatric Injury
The Convention does not recognize compensation for psychiatric injury or damage unless linked to physical injury.[5] Article 17 of the Convention refers to “bodily injury” in setting out the liability of the carrier for accidents. Purely psychiatric injury is not eligible for compensation which has been criticised by people injured in plane accidents, legal experts and their families.
Lost Baggage
The Montreal Convention changes and generally increases the maximum liability of airlines for lost baggage to a fixed amount 1,131 SDR per passenger (the amount in the Warsaw Convention is based on weight of the baggage). It requires airlines to fully compensate travelers the cost of replacement items purchased until the baggage is delivered, to a maximum of 1,131 SDR. At 21 days any delayed baggage is considered lost, until the airline finds and delivers it.
Disabled Passengers And Mobility Equipment
The limitation of compensation for damage to baggage to 1,131 SDRs means that the value of damaged mobility equipment may often significantly exceed available compensation under the Montreal Convention, while the effect of the loss, even temporarily, of mobility equipment places disabled passengers at a substantially increased disadvantage in comparison to other passengers suffering damaged baggage. While for non-disabled people the major issue is the loss of hold baggage, for disabled people the problem tends to be physical damage to wheelchairs and other durable medical equipment due to inappropriate stowage in the hold. Even a basic individually-fitted wheelchair may cost twice the available compensation, with a three-month lead time for replacement. There have been further problems with airlines being reluctant to recognise that cheap mass-market wheelchairs may be unsuitable as even a temporary replacement due to the common need for customised seating solutions among long-term wheelchair users.
The EU in “Communication on the scope of the liability of air carriers and airports in the event of destroyed, damaged or lost mobility equipment of passengers with reduced mobility when traveling by air”[12] notes this disadvantage in relation to EC 1107/2006 “rights of disabled persons and persons with reduced mobility when traveling by air”.[13]
The EU report notes that the United States under the Air Carrier Access Act and Canada under Part VII of the Air Transport Regulations have taken action to force airlines to fully cover the costs of damage to mobility equipment as a condition of allowing an airline to operate in their airspace, and notes that the EU may have to take similar steps if the additional duties imposed on airlines by EC 1107/2006 do not resolve the issue.
Av. A. Vahit KAYA LLM, MBA
Kaya & Partner Hukuki Danışmanlık
Lawyers – Rechtsberatung
Istanbul / Turkey