The Montreal Convention, Exclusivity and the

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The Montreal Convention, Exclusivity and the Liability of Carriers Private International Air Law Class November 18, 2014 European Regulation 2612004 Architecture Basic Provisions Article 3 Scope 1. This Regulation shall apply: (a) to

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The Montreal Convention, Exclusivity and the Liability of Carriers Private International Air Law Class
November 18, 2014

European Regulation 261/2004

Architecture & Basic Provisions Article 3 – Scope

1. This Regulation shall apply:

(a) to passengers departing from an airport located in the territory of a Member State to which the Treaty applies;

(b) to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, unless they received benefits or compensation and were given assistance in that third country, if the operating air carrier of the flight concerned is a Community carrier.

Basic Remedies Provided

Remedy 1: – Article 7 – Passenger Right to Compensation Delay in Arrival not more than 2 hours 3 hours 4 hours

3. The compensation referred to in paragraph 1 shall be paid in cash, by electronic bank transfer, bank orders or bank cheques or, with the signed agreement of the passenger, in travel vouchers and/or other services.

Remedy 2: Passenger Right to Reimbursement or Rerouting – Article 8

1. Where reference is made to this Article, passengers shall be offered the choice between:

(a) reimbursement within seven days, by the means provided for in Article 7(3), of the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if the flight is no longer serving any purpose in relation to the passenger's original travel plan, together with, when relevant, a return flight to the first point of departure, at the earliest opportunity;

(b) re-routing, under comparable transport conditions, to their final destination at the earliest opportunity; or

(c) re-routing, under comparable transport conditions, to their final destination at a later date at the passenger's convenience, subject to availability of seats.

2. Paragraph 1(a) shall also apply to passengers whose flights form part of a package, except for the right to reimbursement where such right arises under Directive 90/314/EEC.

3. When, in the case where a town, city or region is served by several airports, an operating air carrier offers a passenger a flight to an airport alternative to that for which the booking was made, the operating air carrier shall bear the cost of transferring the passenger from that alternative airport either to that for which the booking was made, or to another close-by destination agreed with the passenger.

Remedy 3: Right to Passenger Care – Article 9

1. Where reference is made to this Article, passengers shall be offered free of charge:
(a) meals and refreshments in a reasonable relation to the waiting time;
(b) hotel accommodation in cases
- where a stay of one or more nights becomes necessary, or
- where a stay additional to that intended by the passenger becomes necessary;
(c) transport between the airport and place of accommodation (hotel or other).

2. In addition, passengers shall be offered free of charge two telephone calls, telex or fax messages, or e-mails.

3. In applying this Article, the operating air carrier shall pay particular attention to the needs of persons with reduced mobility and any persons accompanying them, as well as to the needs of unaccompanied children.

Article 4 - Denied boarding

1. When an operating air carrier reasonably expects to deny boarding on a flight, it shall first call for volunteers to surrender their reservations in exchange for benefits under conditions to be agreed between the passenger concerned and the operating air carrier. Volunteers shall be assisted in accordance with Article 8, such assistance being additional to the benefits mentioned in this paragraph.

2. If an insufficient number of volunteers comes forward to allow the remaining passengers with reservations to board the flight, the operating air carrier may then deny boarding to passengers against their will.

3. If boarding is denied to passengers against their will, the operating air carrier shall immediately compensate them in accordance with Article 7 and assist them in accordance with Articles 8 and 9.

A Few Observations on Denied Boarding

Rodriguez v Iberia – denied boarding due to carrier mismanagement of passenger logistics
Lassooy v Finnair - extraordinary circumstances defense not available to carrier in claims for denied boarding

Article 5 – Cancellation

1. In case of cancellation of a flight, the passengers concerned shall:
(a) be offered assistance by the operating air carrier in accordance with Article 8; and
(b) be offered assistance by the operating air carrier in accordance with Article 9(1)(a) and 9(2), as well as, in event of re-routing when the reasonably expected time of departure of the new flight is at least the day after the departure as it was planned for the cancelled flight, the assistance specified in Article 9(1)(b) and 9(1)(c); and
(c) have the right to compensation by the operating air carrier in accordance with Article 7, unless:
(i) they are informed of the cancellation at least two weeks before the scheduled time of departure; or
(ii) they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or
(iii) they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.

2. When passengers are informed of the cancellation, an explanation shall be given concerning possible alternative transport.

3. An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

4. The burden of proof concerning the questions as to whether and when the passenger has been informed of the cancellation of the flight shall rest with the operating air carrier.

Article 6 - Delay

1. When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure:
(a) for two hours or more in the case of flights of 1500 kilometres or less; or
(b) for three hours or more in the case of all intra-Community flights of more than 1500 kilometres and of all other flights between 1500 and 3500 kilometres; or
(c) for four hours or more in the case of all flights not falling under (a) or (b), passengers shall be offered by the operating air carrier:
(i) the assistance specified in Article 9(1)(a) and 9(2); and
(ii) when the reasonably expected time of departure is at least the day after the time of departure previously announced, the assistance specified in Article 9(1)(b) and 9(1)(c); and
(iii) when the delay is at least five hours, the assistance specified in Article 8(1)(a).

2. In any event, the assistance shall be offered within the time limits set out above with respect to each distance bracket.

Liability for Delay Under the Regulation – Sturgeon v. Condor Summary – although the words “cancellation” and “delay” have a distinct meaning, such that the two concepts cannot be treated as synonymous, the remedies available to passengers suffering long delays and cancellations should be the same, since the positions of passengers experiencing each kind of flight disruption are highly comparable and do not justify different treatment Detailed Reasoning

“according to Article 2(l) of Regulation No 261/2004, flight cancellation, unlike delay, is the result of non-operation of a flight which was previously planned. It follows that, in that regard, cancelled flights and delayed flights are two quite distinct categories of flights. It cannot therefore be inferred from Regulation No 261/2004 that a flight which is delayed may be classified as a ‘cancelled flight’ merely on the ground that the delay is extended, even substantially.”  “a flight which is delayed, irrespective of the duration of the delay, even if it is long, cannot be regarded as cancelled where there is a departure in accordance with the original planning.”

So far so good, but then…

“By contrast [to the provisions for cancellation], it does not expressly follow from the wording of Regulation No 261/2004 that passengers whose flights are delayed have such a right.”
In fact, the Regulation is quite clear about the contrary: it lists the remedies available under each of these two distinct situations

“Nevertheless, as the Court has made clear in its case-law, it is necessary, in interpreting a provision of Community law, to consider not only its wording, but also the context in which it occurs and [its]objectives”

c “Recital 15 in the preamble to the regulation nevertheless states that [the extraordinary circumstances] ground may also be relied on where an air traffic management decision in relation to a particular aircraft on a particular day gives rise to ‘a long delay [or] an overnight delay’. As the notion of long delay is mentioned in the context of extraordinary circumstances, it must be held that the legislature also linked that notion to the right to compensation.”
If the legislature wished to link long delays to compensation would it not have done so expressly ? Especially if the “unconnected connection is mentioned in the Preamble to the Regulation” ?
No: It appears that the Preamble takes precedence over the main text of an international instrument and can supplement exhaustive the provisions of the latter: “it is apparent from Recitals 1 to 4 in the preamble, in particular from Recital 2, that the regulation seeks to ensure a high level of protection for air passengers regardless of whether they are denied boarding or whether their flight is cancelled or delayed, since they are all caused similar serious trouble and inconvenience connected with air transport.”…such that “it cannot automatically be presumed that passengers whose flights are delayed do not have a right to compensation and cannot, for the purposes of recognition of such a right, be treated as passengers whose flights are cancelled.”

“where a provision of Community law is open to several interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness”  But this provision is not open to several interpretations: the Regulation gives us an exhaustive list of remedies in the event of delay
“In view of the objective of Regulation No 261/2004, which is to strengthen protection for air passengers by redressing damage suffered by them during air travel, situations covered by the regulation must be compared, in particular by reference to the type and extent of the various types of inconvenience and damage suffered by the passengers concerned”

“Consequently, passengers whose flights have been cancelled and passengers affected by a flight delay suffer similar damage, consisting in a loss of time, and thus find themselves in comparable situations”, i.e. (i) “both categories of passengers are informed, as a rule, at the same time of the incident which will make their journey by air more difficult” and (ii) “they reach it after the time originally scheduled and, as a consequence, they suffer a similar loss of time”
Hence: “Given that the damage sustained by air passengers in cases of cancellation or long delay is comparable, passengers whose flights are delayed and passengers whose flights are cancelled cannot be treated differently without the principle of equal treatment being infringed”
But, because the regulation does seek to balance the interests of carriers and passengers, the exceptional circumstances defence shall also be extended to carriers
Subsequently confirmed in Nelson v Lufthansa

What just happened ?

A further clarification – Folkers v Air France

Multi-segment outbound itinerary – first flight departed 2.5 hours late, connecting flights were missed and arrival in city of ultimate destination occurred with an 11 hour delay

Issue: Article 6 is engaged by a delay in the flight’s departure (see: when “a flight [is expected] to be delayed beyond its scheduled time of departure”) – what if the delay in the flight’s departure is short enough to not engage Article 6, but the arrival in the ultimate destination exceeds three hours? - two opposite trends:
Sturgeon and Nelson: compensation available if the delay in the arrival (actionable by virtue of Article 6) exceeds three hours
Time thresholds applicable to engagement of Article 6 may not be satisfied even if the delay in the arrival at the ultimate destination exceeds three hours – e.g. the present case involving a multi-segment itinerary

Question: Do we focus on the mere occurrence of a long delay even though the provision from which delay liability is not engaged, or do we respect the triggers of Article 6?

“the fixed compensation to which a passenger is entitled under Article 7 of Regulation No 261/2004, when his flight reaches the final destination three hours or more after the scheduled arrival time, is not dependent on the conditions laid down in Article 6 of that regulation being met.”

Justifications:

“The opposite approach would constitute an unjustified difference in treatment, inasmuch as it would effectively treat passengers of flights arriving at their final destination three hours or more after the scheduled arrival time differently depending on whether their flights were delayed beyond the scheduled departure time by more than the limits set out in Article 6 of Regulation No 261/2004, even though their inconvenience linked to an irreversible loss of time is identical.”

“it is true that the obligation to pay compensation to the passengers of the flights in question in the fixed amounts laid down in Article 7 of Regulation No 261/2004 entails certain financial consequences for air carriers…However, it must be emphasised, first, that those financial consequences cannot be considered disproportionate to the aim of ensuring a high level of protection for air passengers and, second, that the real extent of those consequences is likely to be mitigated in the light of the factors set out below.”

“it should be noted that air carriers are not obliged to pay compensation if they can prove that the cancellation or long delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, that is, circumstances which are beyond the air carrier’s actual control” – but see below on how narrowly this defense has been construed on the basis of upholding the aim and purpose of the Regulation, which were to enhance the protection of passengers

“Next, it must be noted that the discharge of obligations pursuant to Regulation No 261/2004 is without prejudice to air carriers’ rights to seek compensation from any person who caused the delay, including third parties, as Article 13 of Regulation No 261/2004 provides” – but see below on whether the most likely culprit, i.e. Air Navigation Service Providers really are liable to successful lawsuits; same for lawsuits for losses stemming from constitutionally protected strikes – also, delays in the judicial system of many countries that may require several years before a case is heard by a court

“Lastly, in any event, the case-law shows that the importance of the objective of consumer protection, which therefore includes the protection of air passengers, may justify even substantial negative economic consequences for certain economic operators” – perhaps the fact that MC does not apply to the delays under the scope of the Regulation also removes the “equitable balance of interests” objective expressed in the Preamble to the Convention

See how narrowly the Court has defined the comparable groups to address complaints of discriminatory treatment of different industries or comparable sectors within the same industry

Compare IATA’s complaint: “The regulation treats air transport completely differently from other modes of transport such as trains or buses despite the fact that airlines have the most advanced guidelines and procedures to deal with delays and cancellations”

However, no compensatory liability if

What are extraordinary circumstances? Non-exhaustive list of Recital 14:

Such circumstances may, in particular, occur in cases of

Political instability - ex Arab Spring cancellations

Meteorological conditions incompatible with the operation of the flight concerned

Security risks

Unexpected flight safety shortcomings

Strikes that affect the operation of an operating air carrier

Unexpected Flight Safety Shortcomings The most commonly pleaded defense by air carriers

Definition of Extraordinary Circumstances Are the E.C. the technical defect itself, OR are they the impact on the airline’s operations ? Technical Defects Are Very Frequent in
the operations of an airline The impact of a technical defect will be the
temporary withdrawal of an aircraft from
service They cannot be avoided even if the carrier
complies with all safety and maintenance
procedures stipulated by the Regulator and
the aircraft manufacturer They can be avoided by careful operational planning
by the carrier: i.e. higher turnaround times and lower
aircraft utilization to ensure availability of spare
replacement aircraft to substitute for withdrawn
aircraft scheduled to operate a given flight Discharge of all reasonable measures defence

Kramme v SAS Scandinavian AirlinesC-396/06The first case to be considered and the opinion of the Advocate General Afternoon flight from Paris to Copenhagen
Aircraft was experiencing technical difficulties (“weird noises”) the day before the flight and on the day of the flight
Aircraft subsequently withdrawn from service on the day of the flight cancelling remaining legs for that day
Afternoon flight in issue cancelled as a result
According to SAS no other aircraft was available since, exceptionally, eight of its airplanes were undergoing checks

[24] The airline is not required to have actually taken all reasonable measures that could have rendered the circumstances
unavoidable – the key question is whether the circumstances could not have been avoided even if all reasonable measureshad been taken

[27] Do not confuse this provision of the Regulation with the language of MC Article 19 (all reasonable measures to avoidthe damage as opposed to the circumstances causing the delay) – they are different defences and one cannot be interpretedin the light of the other

In short,

The successful evocation requires proof of the following three [31]
Causality between cancellation and extenuating circumstances
Unavoidable Nature of circumstances even if all reasonable measures had been taken, and regardless of whether they were actually taken by the carrier
Extraordinary nature of circumstances

Defense subject to restrictive interpretation: “Whilst regulation aims for a high level of passenger protection, it already limitsthe circumstances in which the right to compensation arises and the amounts of compensation are not excessive…[such thata narrow interpretation of the defense] seems particularly appropriate” [37]

“Because a temporary withdrawal of a defective aircraft does not automatically lead to the cancellation of a flight [since arrangements can be still made to operate the affected flight[[s]]…the cancellation is in reality caused by (i) the withdrawalof that aircraft and (ii) the unavailability of a replacement aircraft” Recital 14 refers to “unexpected flight safety shortcomings” which prima facie include technical defects that require a/cwithdrawal, BUT not every technical problem qualifies as such SAS: “any problems that cannot be prevented by general maintenance and routine checks”
Commission: “ depends on nature, importance and frequency” held:
“[Because] the withdrawal of an affected aircraft from operation must be relatively commonplace […] the occurrence ofsuch problems in general cannot be considered extraordinary. They are a normal event in the operation of an airline for which financial and other provisions can be made…[and, as such, they do not] constitute unexpected flight safety shortcomings” [58]

“Nor is unexpected timing sufficient for a particular problem to be extraordinary or to fall into the category of unexpected flight safety shortcomings…what seems to be decisive is the is whether a particular problem in unusual in its nature and frequency…[such that] a problem of a kind that regularly affects all planes or that has occurred several times on a particulartype of plane should not be considered extraordinary. Nor…should a type of problem to which the particular plane inquestion has been known to be prone” [59]

What about all reasonable measures? “As regards the withdrawal of the plane initially allocated to the flight, that involves examining whether any reasonable measures could have prevented, first, the technical problem and, second, the plane’s withdrawal from operation once the problem had manifested itself.” [43]

“As to what reasonable measures an airline could have taken to avoid a technical problem… it is clear from the JAA and EASA rules which are now incorporated into Community legislation that aircraft maintenance is highly regulated in the interests of airworthiness and air safety…In view of the standards those rules seek to attain, it would seem unreasonable to expect an airline to carry out additional maintenance and checks. Accordingly, I suggest that reasonable measures to avoid technicalproblems from arising comprise proper and timely compliance with the schedule of maintenance and checks on an aircraft.”

“Once a problem has arisen, it seems to me that reasonable measures for an airline to take involve trying to diagnose and rectifythe problem without withdrawing the aircraft. By that I do not mean that air safety should be threatened or compromised. Precisely what measures are reasonable will depend on the circumstances, for example the availability of appropriate maintenance staff at the relevant airport.”

“As to avoiding a situation where no replacement aircraft is available, reasonable measures for an airline to take consist in my
view of making adequate provision for such contingencies…While the provision that the airline actually makes is not the issue, the number of aircraft withdrawals to which it has had to respond in the past may help to determine what level of provision would be adequate.”

Wallentin-Hermann v AlitaliaC-549/07 Issue – Flight cancellation as a result of a “complex engine defect in the turbine which had been discovered the day beforeduring a check” – Whether the extenuating circumstances defense has been met

Unexpected Flight Safety Shortcoming = “although a technical problem in an aircraft may be amongst such shortcomings, the fact remains that the circumstances surrounding such an event can be characterised as ‘extraordinary’ within the meaning of Article 5(3) of Regulation No 261/2004 only if they relate to an event which, like those listed in recital 14 in the preamble to that regulation, is not inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin.” Poor maintenance not satisfying minimum regulatory requirements therefore not defensible
Frequency of a problem not sufficient by itself for this determination
Compliance with minimum maintenance requirements not enough BUT All reasonable measures “That party must establish that, even if it had deployed all its resources in terms of staff or equipment and the financial means at its disposal, it would clearly not have been able – unless it had made intolerable sacrifices in the light of the capacities of its undertaking at the relevant time – to prevent the extraordinary circumstances with which it was confronted from leading to the cancellation of the flight. “

Is this test easier for an airline to satisfy ? “Beyond the actual control of the carrier on account of its nature and origin” makes it easier to justify defects such as the turbine defect in issue in Wallentin-Herman – i.e. acknowledges whether it was actually within the control of the airline more than the Kramme test that focuses solely on the question of frequency

The Wallentin-Herman test appears more sensitive to the needs and capabilities of the carrier as it speaks of intolerable sacrifices in light of the carrier’s capacities and regardless of the frequency of previous withdrawals
If a small carrier’s aircraft are old and produce defects often, then a cancellation from a truly unusual defect beyond the control of the carrier would be more defensible as an extenuating circumstance if the carrier was operationally overstretched under the WH test, which (i) does not consider the frequency of antecedent defects unrelated to the particular defect in question, (ii) places less weight on contingency planning, which would prejudice high fleet utilization, and (iii) does consider the operational limitations of the carrier more than the Kramme test

But then came Eglitis & Ratkiens Two hour-long airspace closure following generalized power failure on the ground – closure took effect five minutes before scheduled departure of Air Baltic flight – following reopening of airspace, airline cancelled flight because crew’s daily duty times had been exceeded

Issue: Original airspace closure undoubtedly amounted to extraordinary circumstances – however, with regard to the subsequent cancellation of the flight, did carrier take all reasonable measures? – i.e. Question before the ECJ: “ [Does the defense of] all reasonable measures [that] have been taken to avoid any extraordinary circumstances…include among those measures an obligation for those carriers to organise their resources, including their crew, in such a way that flights can be operated over a certain period of time should such circumstances occur.”?
Answer: YES, they should:
“very often, the occurrence of extraordinary circumstances makes it difficult, if not impossible, to operate a flight at the scheduled time. Thus, the risk of delay to a flight, which may ultimately result in its cancellation, is the usual – and therefore foreseeable – detrimental consequence for passengers when extraordinary circumstances arise.”

“It follows that the air carrier, since it is obliged, under Article 5(3) of Regulation No 261/2004, to implement all reasonable measures to avoid extraordinary circumstances, must reasonably, at the stage of organising the flight, take account of the risk of delay connected to the possible occurrence of extraordinary circumstances…the reasonable air carrier must organise its resources in good time to provide for some reserve time, so as to be able, if possible, to operate that flight once the extraordinary circumstances have come to an end. If, in such a situation, an air carrier does not, however, have any reserve time, it cannot be concluded that it has taken all reasonable measures.”

“at paragraph 42 of Wallentin-Hermann, the Court held, in that connection, that it was necessary to ascertain whether the air carrier concerned had taken measures appropriate to the particular situation, that is to say, measures which, at the time of the occurrence of the extraordinary circumstances whose existence the air carrier is to establish, met, inter alia, conditions which were technically and economically viable for that carrier.” But this is subject to a viability condition, at leastpurportedly But did the court lose sight of the viability condition?

“The assessment must be carried out not, as the national court seems to suggest, with regard to the delay in relation to the aeroplane’s scheduled departure time, but taking account of the delay that may exist at the end of the flight operated in the new conditions to which the extraordinary circumstances have given rise.”

“A delay as initially noted, at the time when those extraordinary circumstances come to an end or in relation to the time scheduled for departure, may increase thereafter, on account of a series of various secondary complications connected to the fact that the flight at issue could not be properly operated, in accordance with the scheduled timetable, such as difficulties related to the reallocation of air corridors or accessibility conditions at the destination airport, including the possible total or partial closure of that airport for part of the night. The result could be that, by the end of the flight, the delay will ultimately be appreciably longer than the delay as initially noted. The assessment of the reasonable nature of measures taken by the air carrier when organising its flight must, consequently, also take account of those secondary risks, insofar as their constituent elements are foreseeable and calculable.”
Essentially, here the carrier would have been required to plan for very long turn-around times on a regular basis to “take account of secondary risks” that render a delay/cancellation “a usual-and therefore foreseeable, detrimental consequence” – but what if, as in this case, the airspace closure occurred during a turnaround that would have ordinarily been perfectly feasible ?

Since the national airspace was closed, no replacement crew could have been dispatched – at the same time, even if a replacement crew had been flown on time, the flight would have still been late (which would also be compensable after Sturgeon & Nelson)

Are these requirements viable for a regional or low cost carrier that depends on high aircraft utilization, low turnaround times and no out-of-base crew overnight stays due its cost and route structure ?

The Availability of the E.C. Defense in the “roll-over” effect of a disruption onto subsequent flights – Lasooy v Finair The extraordinary circumstances defense cannot be used for the justification of subsequent flight rescheduling by the carrier in response to the initial disruption occasioned by the original extraordinary circumstances

“In addition, it is apparent from recital 15 in the preamble to Regulation No 261/2004 that ‘extraordinary circumstances’ may relate only to ‘a particular aircraft on a particular day’, which cannot apply to a passenger denied boarding because of the rescheduling of flights as a result of extraordinary circumstances affecting an earlier flight. The concept of ‘extraordinary circumstances’ is intended to limit the obligations of an air carrier — or even exempt it from those obligations — when the event in question could not have been avoided even if all reasonable measures had been taken. As the Advocate General observed in point 53 of his Opinion, if such a carrier is obliged to cancel a scheduled flight on the day of a strike by airport staff and then takes the decision to reschedule its later flights, that carrier cannot in any way be considered to be constrained by that strike to deny boarding to a passenger who has duly presented himself for boarding two days after the flight’s cancellation.”  even though the last sentence refers to denial of boarding, the reasoning of the Court focuses on the nature of the defense per se.

Is this tenable and viable? European Low Fare Airlines Association – No
“The legislation is particularly unfair to low fares airlines because these penalties have no relationship to the amount of the fare paid by the customer. Thus, a passenger who paid less than €50 for their fare on a low fares airline could conceivably receive a minimum of €250 in compensation for a cancelled flight, in addition to compensation for their hotel (if the cancellation requires them to stay an additional night), meals, phone calls, faxes, etc. The total “compensation” due to passengers would most likely vastly exceed the amount of the fare paid to an LFA.”

Joint Industry Position Report:

“The provision that extraordinary circumstances can be invoked only for the flight on which the disruption occurred and the flight immediately following it, fails to recognise the realities of scheduled air transport operation, in which reactionary delays can have a much longer‐lasting impact [especially true for low cost carriers and regional carriers with lower turnaround times and higher aircraft utilization needs]. Again, airlines have an incentive to resolve schedule disruptions simply with a cancellation rather than work to progressively eliminate a delay [and affect other flights that should have remained unaffected].”

Is Regulation 26/2004 compatible with MC99? The Regulation applies with respect to three phenomena:
Delay
Cancellation
Denied Boarding

The MC 99 only expressly addresses delay and, arguably, cancellation and denied boarding, albeit only by
implication

Delays – A quick refresher of MC99 Preamble

RECOGNIZING 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;

AND

REAFFIRMING the desirability of an orderly development of international air transport operations and the smooth flow of passengers, baggage and cargo in accordance with the principles and objectives of the Convention on International Civil Aviation, done at Chicago on 7 December 1944;

CONVINCED that collective State action for further harmonization and codification of certain rules governing international carriage by air through a new Convention is the most adequate means of achieving an equitable balance of interests;

Article 19
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures. Article 22(1)
1. In the case of damage caused by delay as specified in Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4 150 Special Drawing Rights. Article 29
In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.

Response: Chapter III of MC99 “lays down conditions under which any actions for damages against air carriers may bebrought by passengers who invoke damages sustained because of delays” [42] BUT “Any delay in the carriage by air, and in particular a long delay, may…cause two types of damage. First, excessive delaywill cause damage that is almost identical for every passenger, redress for which may take the form of standardized andimmediate assistance or care for everybody concerned, through the provision, for example, of refreshments, mealsand accommodation and of the opportunity to make phone calls. Second, passengers are liable to suffer individual damage, inherent in the reason for travelling, redress for which requires a case-by-case assessment of the extent of the damage caused and can consequently only be the subject of compensation granted subsequently on an individual basis” [43]“It is clear from Articles 19,22 and 9 of the Montreal Convention that they merely govern conditions under which, aftera flight has been delayed, the passengers concerned may bring actions for damages by way of redress on an individual basis, that is to say compensation, from the carriers liable for damage resulting from the delay” [44]

“It does not follow from these provisions, or from any other provision of the Montreal Convention, that the authors ofthe Convention intended to shield those carriers from any other form of intervention, in particular action which couldbe envisaged by the authorities to redress, in a standardized and immediate manner, the damage that is constituted bythe inconvenience that delay in the carriage of passengers by air causes, without the passengers having to suffer the inconvenience inherent in the bringing of actions for damages before the courts” [45] The IATA & ELFAA Case – Article 6 of the Regulation & Montreal

Therefore, no conflict because damages can be split into two kinds Inconvenience
Common to all passengers
It is the kind of damage that arises concurrently with the delay
It is the kind of damage that needs to be redressed on the spot “in a standardized and immediate manner” 2. All other damages
They occur ex-post facto
They require individual redress
They are claimed after the occurrence of the delay AND “The system prescribed in Article 6 simply operates at an earlier stage than the system which results from the Montreal Convention” [46]

Does this make sense ? Under the plain text of Article 19, NO

Recall MC99 Art 19: “The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo.”
The language of Article 19 does not expressly delineate its ambit by reference to any criterion, temporal or otherwise – even if it were to be assumed that the distinction between inconvenience and other damages was otherwise tenable, the Court’s temporal delineation of Art 19’s ambit cannot supported by the plain text of Art 19 – hence, the argument that Reg 261/2004 applies before the Convention comes into effect is not tenable

Also, and at closer inspection, one of the Articles of the Chapter III, namely Art 17, does contain an express spatial delineation of its ambit (see: injury incurred on board or in the process of embarkation or disembarkation) – if the ambit of Article 19 were to be similarly defined by reference to a spatial or temporal criterion, why did the drafters not use a similarly explicit language as they did with respect to proximate Article 17? Interestingly, the ECJ did recognize that Chapter III “lays down the conditions under which actions for damages against carriers may be brought by passengers [on the basis of delay]” [42]

However, If we consider the liability of a carrier under Reg 261/2004 Article 6, a carrier’s duty to passenger care (i.e. the only liability to which a carrier would be exposed under the text of the subject provision) would partially overlap with the damage directly flowing from a delay that a carrier would have to compensate under MC Art 19, i.e.
Accommodation
Nutrition and
Basic Means of Communication expenses

Hence, it could be argued that the novelty of “passenger inconvenience” is essentially a misnomer or mis-conceptualization of a carrier’s MC Art 19 liability for costs caused by a delay. Accommodation and related “stand by” expenses are commonly redeemable by passengers in MC Art 19 litigation. The only difference would be that, under the Regulation, the carrier assumes these costs outright, as opposed to having to compensate passengers ex-post facto and following litigation. In this sense, the carrier’s liability would amount to a “standardized and immediate” compensation of direct damages that would also be compensable under MC, subject to potential litigation.

But, this argument loses its strength because;
(i) the defenses available to the carrier under each regime are not the same, and
(ii) the cost of the duty to care arising under the Regulation can exceed the ceilings set by MC. Specifically:

Therefore, under the Regulation the carrier will be required to incur costs that it would not have been required to incur under Montreal; thus, the “inconvenience” that is compensable under the Regulation does not overlap with, but actually exceeds a carrier’s potential liability under MC Art 19. MC Reg The carrier and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures. The Duty to Care is Unconditional, regardless of carrier’s fault or causal contribution to the creation of the delay-inducing event * Disparity of Defenses * For a recent affirmation, see McDonagh v. Ryanair (C-12/11): “Regulation No 261/2004 contains nothing that would allow the conclusion to be drawn that it recognises a separate category of ‘particularly extraordinary’ events, beyond ‘extraordinary circumstances’ referred to in Article 5(3) of that regulation, which would lead to the air carrier being exempted from all its obligations, including those under Article 9 of the regulation.” Why?: “the regulation aims at ensuring a high level of protection for passengers and takes account of the requirements of consumer protection in general, inasmuch as cancellation of flights causes serious inconvenience to passengers”

Violation of MC Ceilings – The Case of McDonagh v. Ryanair (C-12/11) Case concerned the widespread flight disruptions resulting from the explosion of the Eyjafjallajökull volcano in Iceland in March of 2010 – MD incurred expenses of EUR 1,129 on accommodation, meals etc in anticipation of her flight – Ryanair refused to reimburse expenses “It follows from Article 9 of Regulation No 261/2004 that all the obligations to provide care to passengers
whose flight is cancelled are imposed, in their entirety, on the air carrier for the whole period during which
the passengers concerned must await their re-routing.” And what about MC and its liability ceiling? suffice it to note that the standardised and immediate compensatory measures laid down by Regulation No 261/2004, which include the obligation to provide care to passengers whose flight has been cancelled, are not among those whose institution is governed by the Montreal Convention

Text of Regulation: “no limitation, whether temporal or monetary, of the obligation to provide care to passengers in extraordinary circumstances such as those at issue in the main proceedings is apparent from the wording of Regulation No 261/2004.”
Purpose of Regulation and vulnerability of passengers: “any interpretation seeking the recognition of limits, whether temporal or monetary, on the obligation of the air carrier to provide care to passengers whose flight has been cancelled would have the effect of jeopardising the aims pursued by Regulation No 261/2004 […] the provision of care to such passengers is particularly important in the case of extraordinary circumstances which persist over a long time and it is precisely in situations where the waiting period occasioned by the cancellation of a flight is particularly lengthy that it is necessary to ensure that an air passenger whose flight has been cancelled can have access to essential goods and services throughout that period.” Why ?

Therefore, and without considering the compensation for delay in the aftermath of Sturgeon and Nelson, the mere provision of accommodation, meals and access to means of communication is not reconcilable with MC because it results in the imposition of liabilities beyond those arising from MC both in terms of monetary worth and in terms of limited opportunities for carrier absolution

Further, since the express text of MC Article 19 does not justify the temporal delineation of its scope that the ECJ’s reading implied, and; since the provisions of the Regulation do not merely overlap, but actually exceed, the same provisions of MC with respect to a carrier’s liability for delay, the duty to passenger care provisions of the Regulation by themselves offend the Convention’s exclusivity, which, under a proper reading of Article 19, should also extend to damages incurred concurrently with, as well as subsequently to the occurrence of the delay

Now, let’s consider the defensibility of the compensability of a mere delay as a fact

Reasoning in Nelson:

The Fruit of the Poisonous Tree: In IATA & ELFAA the court justified the compatibility of Reg Article 6 with MC Art 29 on the basis that the latter falls outside the scope of the Convention – Recall Article 6 was defended only for its duty to passenger care provisions, which, as discussed above, was distinguished from Montreal on the basis of its immediate and automatic nature that fell outside the scope of the Convention – In Nelson, the Court used this scope-based argument to justify the actual compensation for delay, and regardless of the carrier’s duty to passenger care – “the Court [in IATA&ELFAA] did not rule out that other measures, such as that of compensation laid down in Article 7 [of the Regulation] may fall outside the scope of the Convention” and “…as such outside the scope of Article 29” Does it? per Court, YES – “a loss of time cannot be categorized as “damage occasioned by delay” within the meaning of Article 19 and for that reason it falls outside the scope of the Montreal Convention” – Instead, “[loss of time] is an inconvenience, like other inconveniences inherent in cases of denied boarding, flight cancellation and long delay and encountered in them, such as lack of comfort or the fact of being temporarily denied means of communication normally available”

What about the Relationship Between MC and Reg 261/2004 per Nelson? “Furthermore, it should be stated that the obligation to pay compensation which stems from Regulation No 261/2004 is additional to Article 29 of the Montreal Convention, inasmuch as it operates at an earlier stage than the system laid down in that Article”.

It follows that that obligation to pay compensation does not itself prevent the passengers concerned, should the same delay also cause them individual damage conferring entitlement to compensation, from being able to bring in addition actions to obtain, by way of redress on an individual basis, damages under the conditions laid down by the Montreal Convention.

Why can a loss of time not be categorized as damage compensable under MC Art 19 per Nelson? “suffered identically by all passengers whose flights are delayed…[and is thereby compensable] without having to carry out any assessment of the individual situation of each passenger”
Not necessarily: the monetary value of the loss of the same amount of time might very well vary among passengers – what if a passenger is of ill health v. a healthy passenger ? What if a passenger is used to flying in luxury and with no delays v. a VFR passenger who does not mind delays as much
“no need for a causal link between…the actual delay and…the loss of time considered relevant for the purposes of giving rise to a right to compensation” – unlike MC
“whereas as the extent of the delay is normally a factor increasing the likelihood of greater damage, the fixed compensation awarded under that regulation remains unchanged in that regard”
Does this not undermine the “suffered identically by all passengers” argument ?

Does this make sense?

Mere inconvenience, not accompanied by any physical harm, is not compensable under the national laws of nearly all Member States to the European Union

Further, if this is the case, then is the Court’s assertion that the Regulation is consistent with the restitution principle enunciated in the Preamble to the Montreal Convention not unfounded ? If there is no recognizable harm or detriment, what would be the subject of the restitution ?

Further, on what basis does the Court separate damages in the binary fashion of inconvenience and everything else?
The language of Article 19 does not support such a division, for its speaks of damage in general
The national laws of Member States do not recognize inconvenience as compensable damage

If the notion of mere inconvenience as a damage is not legally existent, then does the duty to care under Article 5 of the Regulation essentially amount to punitive damages? Unlike the duty to care, which could be partially reconcilable with MC Art 19, no legally recognizable damage is compensated by Article 6 of the Regulation?

The Flaws of the Court’s Reconciliation of Delay – Related Liability under the Regulation with the Exclusivity of the Convention – A summary Substantive Scope of MC99 Art 19 Temporal Scope of MC 99 Art 19 The Scope of MC Art 29 The Substance of MC Art 29 – second sentence Article 19 does not discriminate between damages common to all passengers and damages individual to all passenger: it merely governs the compensability of damage per se Article 19 does not limit its ambit to damages incurred after the delay. Although the reality of litigation requires carriers to compensate passengers ex-post facto, the text of Article 19 speaks of damages caused by delay, whether or not before or after the occurrence of the delay; contrast to Article 17 that expressly limits its ambit Even if points 1 and 2 were to be accepted, it does not follow from the fact that a claim pertaining to delay-induced damage is not actionable under Art 19 that it is actionable under EU law – this would render Art 29 redundant: for Art 29 to have any meaning, it must follow that a delay claim that is not compensable under Art 19 is not compensable at all Under the municipal law of most States, mere inconvenience in the likes of the ECJ’s legal fiction is not compensable and does not give rise to damages – accordingly, legally, the damage incurred by the inconvenience is non-existent; therefore, any compensation received for the inconvenience of the delay is not compensating actual harm and is therefore punitive

How about an IASL Private International Air Law Class Regulation 11/2014 for the Compensation of Passenger Anguish
Following a Bumpy Landing, Rude Service or the Provision of Substandard In-Flight Meals? Could we reconcile it with Articles 17 & 19 of MC following the Court’s Reasoning?
Arguably yes: essentially, the Court has justified the Regulation on two grounds, one temporal and one substantive Temporal Argument: Regulation 261/2004 applies before MC Article 19 – A fortiori, Regulation 11/2014 would apply after disembarkation The Court has not respected that Article 19 does not limit its scope to ex-post facto claims: could the same not be said for an Article 17 situation? Why not compensate passengers for the anguish they felt following a bumpy landing? If we accept the Court’s reasoning, such a Regulation would be defensible. Just like the temporal scope of Article 19 has been misread, and an ex-post facto restriction has been added, the temporal scope of Article 17 could be equally misread – our Regulation would compensate the anguish felt after disembarkation. Just like compensation for delay applies before the delay, thereby falling outwith the scope of MC, the same argument could be made for the compensability of post-disembarkation anguish Since a bumpy landing would not be an accident compensable under Article 17 (just like inconvenience is not delay compensable under Article 19), we would again be outside the substantive scope of Montreal – we would merely be compensating the inconvenience of a bumpy landing Substantive Argument: Regulation 261/2004 does not compensate the damage caused by delay that is compensable under MC99 Article 19 and therefore lies outside its scope; A fortiori, Regulation 11/2014 would not be compensating personal injury under MC99 Article 17 and would therefore fall outside its scope

Cancellation & Bumping The critical difference between a Delay and Cancellation/Bumping is that, arguably, the latter kind of claims falls outside the substantive scope of MC

Essence of argument: difference between delayed performance and complete non-performance of the contracted carriage – delays involve the former, whereas cancellations/bumping involve the latter – if complete non-performance, then the claim would fall outside the scope of MC, which governs carriage by air as opposed to non-carriage – therefore, the carrier would be liable under the national law of the forum in which it is sued

Jurisprudence in the United States
Three themes– partial v absolutely no performance of contracted itinerary / carrier opportunity to provide alternate air carriage / promptness of passenger in arranging alternate transportation at own expense Wolgel v Mexicana – The “no performance at all” test
Ws had confirmed reservation and showed up at the gate on time and in compliance with all requirements – they were bumped
They sued three years after the incident and the question turned on the time-bars for the filing of claims
Q: Does the Warsaw Convention apply in cases of bumping such as to extinguish a cause of action not duly filed with the two year prescription period ?
A: NO it does not “because the Wolgels seek damages for the bumping itself, rather than incidental damages due to their delay.” Different outcome if the claim pertained to damages caused by the delayed arrival to final destination. Bumping amounts to a non performance of carriage and the preparatory work to the Convention revealed that non-performance is outside the scope of the Warsaw Convention – the Italian delegate proposed an Article 19 wording extending to non-performance in addition to delay – “However, after further discussion of this question, it became clear among the delegates that there was no need for a remedy in the Convention for total non-performance of the contract, because in such a case the injured party has a remedy under the law of his or her home country”.

Here, “This case is one of non-performance of a contract. The Wolgels are not attempting to recover for injuries caused by their delay in getting to Acapulco. Rather, their complaint is based on the fact that, as far as the record shows, they never left the airport. Because the Wolgels' claim is for total non-performance of a contract, the Warsaw Convention is inapplicable.”

How extensive does the non-performance need to be to no longer be delay ? What if several segments of a multi-leg itinerary have been performed and the cancellation/bumping occurs at the end: i.e. if partial carriage has been provided that nevertheless falls short of the fully contracted itinerary; does this preclude a finding of non performance? Recall that the Wolgels did not leave the airport at all.

Is there a difference between cancellation and bumping ? Paradis v Ghana Airways – the partial/absolutely no performance divide & the carrier’s opportunity to provide alternate
transport
Hint that after Tseng and affirmation of WC’s aim of harmonization of international laws on carrier liability Wolgel might not be good law
Outbound leg of return ticket duly flown – return flight cancelled – plaintiffs were anxious to return on time – the next flight with Ghana Airways would have the plaintiffs stranded in Freetown, Sierra Leone for several days – Plaintiffs booked flights with alternate airline to depart on the evening of the originally scheduled day – in the interim, their seats to the next available flight of Ghana Airways had not been confirmed – plaintiffs claimed costs of alternate tickets - The claim was pre-empted.
“The circumstances of Wolgel are readily distinguishable from those that Paradis faced in Sierra Leone. The Wolgels were deprived of all benefit of their bargain. The airline denied them boarding on the initial leg of their round-trip itinerary and had provided no compensation even five years later when the plaintiffs brought suit. Paradis, who flew the initial leg of his round-trip itinerary, has offered no factual allegations that Ghana Airways failed to offer substitute transportation. Indeed, the staff at the airport and the agent in New York both instructed him to make arrangements with the Ghana Airways office in Freetown the following business day. Paradis and his companions were so keen to leave Sierra Leone that they did not give the airline a reasonable opportunity to perform.”

Weiss v El Al – the broader construction of Wolgel (i.e. Wolgel minus the non-carriage on the outbound leg qualifier) and the doubting of Paradis – an unqualified principle that cancellation/bumping amount to extra-MC99 non performance ? Return ticket purchased from New York to Jerusalem – flight was oversold – plaintiffs remained in airport on standby for three days, after which they made alternate travel arrangements with other airline

“The Court is skeptical of the Paradis court's distinction between outbound and return flights; that the airline provided one flight according to contract does not necessarily render the failure to provide carriage on another flight a mere delay rather than a total failure to perform. In any event, to the extent the distinction has force, since this case concerns the outbound leg of a round-trip journey, it is analogous to Wolgel rather than to Paradis. The distinction between proper and improper repudiation, on the other hand, will certainly have bearing on this case.”

Is the suggestion of the Court in Paradis that, post-Tseng, Wolgel should be viewed with skepticism good law?
“the drafting history indicates that the drafters of the Montreal Convention intended that the national courts would determine the meaning of "delay," and national courts have almost universally accepted Wolgel's interpretation of bumping as contractual non-performance and not delay. Consequently, in light of the interest in international uniformity announced in Tseng, and the greater focus on consumer protection intended in the Montreal Convention, plaintiffs' bumping claims should be read as grounded in a cause of action for non-performance of contract and not delay. They are, therefore, not pre-empted by the Montreal Convention.”

This would suggest an unconditional Wolgel interpretation to the effect that non-carriage as contracted for is non-performance and a claim for non-carriage, be it based on cancellation or bumping, is not pre-empted by MC99 regardless of whether the non-performance occurs in the outbound or inbound leg of an itinerary

Is this right ? See e.g. George N. Tompkins Jr, Liability Rules Applicable to International Air Transportation as Developed by the Courts in the Unites States: From Warsaw 1929 to Montreal 1999 (AH Alphen aan den Rij: Kluwer Law International, 2010) at 233-234.
“ The liability rules of the Convention apply whenever the contract of transportation provides for international transportation by air as defined in Article 1(2). The liability rules of the Convention, thus, are the “law of the contract” between the parties which provides for “international transportation by air”. One of these liability rules is found in Article of the Warsaw Convention and the Montreal Convention…
The triggering event for liability to arise under Article 19 is a “delay” in the performance of the contract of transportation. The denial of boarding on an aircraft for which a passenger holds a confirmed reservation, is unquestionably a “delay in the carriage by air” contracted for, for which the carrier is liable under Article 19. Denied boarding or bumping of a passenger is not a “non-performance” of the contract of transportation rendering liability rules of the Convention inapplicable, as erroneously held by the Wolgel and Weiss courts. Rather, it is a delay in the performance of the contract for which the carrier is liable, or not, for the damage caused by the delay, if any, in accordance with Article 19 of the applicable Convention, and not for the fact of the delay, a distinction evidently overlooked by the Wolgel and Weiss courts.
….The Wolgel and Weiss courts completely misunderstood the difference between the applicability of the liability rules of the Convention to the transportation contract an the liability of the carrier under those rules for the claim asserted. “Delay” in the transportation contracted for, within the meaning and scope of Article 19, can occur at any time, that is before the transportation commences, for example cancellation of the flight, delay in departure, and during the transportation once commenced, for example, enroute, diversion to another airport, later arrival at destination.”  This expansive interpretation of exclusivity would also condemn the Regulation’s provisions on denied boarding and cancellation.

But then, see

Mullaney v Delta Airlines – a return to equilibrium ?

Flight cancellation, due to strike, of return/final leg of multi-city international itinerary – plaintiff made alternate travel arrangements at own expense

“However, in recent years a number of courts have concluded that where the facts pleaded in the complaint add up to non performance, rather than simply delay, the Convention does not pre-empt other claims. In [previous cases the courts] identified the circumstances that would favor a finding of delay as opposed to non-performance: either the defendant airline ultimately provided plaintiff with transportation, or the plaintiff secured alternative transportation without waiting to find out whether the defendant airlines would transport him, or the plaintiff refused the airline's offer of a later flight. Presumably, then, where the defendant airline did not ultimately transport the plaintiff, or where the plaintiff secured alternative transportation only after learning that he would not be flown by his original carrier, and where the plaintiff did not refuse to fly on a later flight operated by his carrier, a finding that the claim was for non-performance rather than delay would be warranted.”

The Approach of Continental Europe:

“It is well-known that airlines overbook their flights in order to increase the number of empty seats on flights due to non-canceling passengers (“no shows”). It is almost universally agreed that the failure to board a passenger with a confirmed reservation gives rise to damages. In one German case, the court permitted unlimited damages, based on the theory that the practice is a breach and non-execution of the contract of carriage, in which case the Convention would not apply…;accord: Switzerland”

Lawrence B. Goldhirsh, The Warsaw Convention Annotated: A legal Handbook (The Hague: Kluwer Law International, 2000) at 109.

The Department of Transportation Rules on Bumping and Tarmac Delays

§259.4 Contingency Plan for Lengthy Tarmac Delays.

(a) Adoption of Plan. Each covered carrier shall adopt a Contingency Plan for Lengthy Tarmac Delays for its scheduled and public charter flights at each U.S. large hub airport, medium hub airport, small hub airport and non-hub airport at which it operates or markets such air service and shall adhere to its plan's terms.

(b) Contents of Plan. Each Contingency Plan for Lengthy Tarmac Delays shall include, at a minimum, the following:

(1) For domestic flights, assurance that the covered U.S. air carrier will not permit an aircraft to remain on the tarmac for more than three hours before allowing passengers to deplane unless:

(i) The pilot-in-command determines there is a safety-related or security-related reason (e.g. weather, a directive from an appropriate government agency) why the aircraft cannot leave its position on the tarmac to deplane passengers; or

(ii) Air traffic control advises the pilot-in-command that returning to the gate or another disembarkation point elsewhere in order to deplane passengers would significantly disrupt airport operations.

(2) For international flights operated by covered carriers that depart from or arrive at a U.S. airport, assurance that the carrier will not permit an aircraft to remain on the tarmac at a U.S. airport for more than four hours before allowing passengers to deplane, unless:

(i) The pilot-in-command determines there is a safety-related or security-related reason why the aircraft cannot leave its position on the tarmac to deplane passengers; or

(ii) Air traffic control advises the pilot-in-command that returning to the gate or another disembarkation point elsewhere in order to deplane passengers would significantly disrupt airport operations.

(3) For all flights, assurance that the carrier will provide adequate food and potable water no later than two hours after the aircraft leaves the gate (in the case of a departure) or touches down (in the case of an arrival) if the aircraft remains on the tarmac, unless the pilot-in-command determines that safety or security considerations preclude such service;

(4) For all flights, assurance of operable lavatory facilities, as well as adequate medical attention if needed, while the aircraft remains on the tarmac;

(5) For all flights, assurance that the passengers on the delayed flight will receive notifications regarding the status of the delay every 30 minutes while the aircraft is delayed, including the reasons for the tarmac delay, if known;

(6) For all flights, assurance that the passengers on the delayed flight will be notified beginning 30 minutes after scheduled departure time (including any revised departure time that passengers were notified about before boarding) and every 30 minutes thereafter that they have the opportunity to deplane from an aircraft that is at the gate or another disembarkation area with the door open if the opportunity to deplane actually exists;

(7) Assurance of sufficient resources to implement the plan; and

(8) Assurance that the plan has been coordinated with airport authorities (including terminal facility operators where applicable) at each U.S. large hub airport, medium hub airport, small hub airport and non-hub airport that the carrier serves, as well as its regular U.S. diversion airports;

(9) Assurance that the plan has been coordinated with U.S. Customs and Border Protection (CBP) at each large U.S. hub airport, medium hub airport, small hub airport and non-hub airport that is regularly used for that carrier's international flights, including diversion airports; and

(10) Assurance that the plan has been coordinated with the Transportation Security Administration (TSA) at each U.S. large hub airport, medium hub airport, small hub airport and non-hub airport that the carrier serves, including diversion airports

(c) Code-Share Responsibility. The tarmac delay contingency plan of the carrier under whose code the service is marketed governs, if different from the operating carrier, unless the marketing carrier specifies in its contract of carriage that the operating carrier's plan governs.

(d) Amendment of plan. At any time, a carrier may amend its Contingency Plan for Lengthy Tarmac Delays to decrease the time for aircraft to remain on the tarmac for domestic flights covered in paragraph (b)(1) of this section, for aircraft to remain on the tarmac for international flights covered in paragraph (b)(2) of this section, and for the trigger point for food and water covered in paragraph (b)(3) of this section. A carrier may also amend its plan to increase these intervals (up to the limits in this rule), in which case the amended plan shall apply only to departures that are first offered for sale after the plan's amendment.

(e) Retention of records. Each carrier that is required to adopt a Contingency Plan for Lengthy Tarmac Delays shall retain for two years the following information about any tarmac delay that lasts more than three hours:

(1) The length of the delay;
(2) The precise cause of the delay;
(3) The actions taken to minimize hardships for passengers, including the provision of food and water, the maintenance and servicing of lavatories, and medical assistance;
(4) Whether the flight ultimately took off (in the case of a departure delay or diversion) or returned to the gate; and
(5) An explanation for any tarmac delay that exceeded 3 hours (i.e., why the aircraft did not return to the gate by the 3-hour mark).

(f) Unfair and deceptive practice. A carrier's failure to comply with the assurances required by this rule and contained in its Contingency Plan for Lengthy Tarmac Delays will be considered to be an unfair and deceptive practice within the meaning of 49 U.S.C. 41712 that is subject to enforcement action by the Department.

CFR 383.2 Amount of penalty.
Civil penalties payable to the U.S. Government for violations of Title 49, Chapters 401 through 421, pursuant to 49 U.S.C. 46301(a), are as follows:
(a) A general civil penalty of not more than $27,500 (or $1,100 for individuals or small businesses) applies to violations of statutory provisions and rules or orders issued under those provisions.

§259.8 Notify passengers of known delays, cancellations, and diversions.
(a) Each covered carrier for its scheduled flights to, from or within the U.S. must promptly provide to passengers who are ticketed or hold reservations, and to the public, information about a change in the status of a flight within 30 minutes after the carrier becomes aware of such a change in the status of a flight. A change in the status of a flight means, at a minimum, cancellation of a flight, a delay of 30 minutes or more in the planned operation of a flight, or a diversion. The flight status information must at a minimum be provided in the boarding gate area for the flight at a U.S. airport, on the carrier's website, and via the carrier's telephone reservation system upon inquiry by any person.
(1) With respect to any U.S. carrier or foreign air carrier that permits passengers to subscribe to flight status notification services, the carrier must deliver such notification to such passengers, by whatever means is available to the carrier and of the passenger's choice, within 30 minutes after the carrier becomes aware of such a change in the status of a flight.
(2) The U.S. carrier or foreign air carrier shall incorporate such notification service commitment into its Customer Service Plan as specified in section 259.5 of this chapter.

(b) For its scheduled flights to, from or within the U.S, within 30 minutes after the carrier becomes aware of a flight cancellation, a flight delay of 30 minutes or more, or a flight diversion, each covered carrier must update all flight status displays and other sources of flight information that are under the carrier's control at U.S. airports with information on that flight irregularity.

(c) If an airport-controlled display system at a U.S. airport accepts flight status updates from carriers, covered carriers must provide flight irregularity information to that airport for the carrier's scheduled flights to, from or within the U.S. within 30 minutes after the carrier becomes aware of such a change in the status of a flight. Flight irregularity refers to flight cancellations, flight delays of 30 minutes or more, and diversions.

But also note:

“Failure of airlines to re-route passengers or to provide refunds and additional compensation in the event of significantly delayed or cancelled flights may violate 49 U.S.C. § 41712 as an unfair and deceptive practice based on the facts and circumstances of the delay. To the extent airlines make commitments to passengers in their contracts of carriage or otherwise regarding compensation or amenities related to delays or cancellation, 49 U.S.C. § 41712 requires that carriers comply with those commitments.”
(ICAO, AT Conference, March 2013, “ACHIEVING COMPATIBILITY IN CONSUMER PROTECTION REGULATIONS” (Presented by the United States of America))

A comparison of the contracts of carriage offered by a legacy network carrier (Delta) and an Ultra-Low-Cost-Carrier (Spirit) reveals substantial differences in the level of contractual protection agreed upon between the carrier and the passenger

The DoT’s Rules on Bumping

§250.1 Definitions (Inter alia)

Carrier means: (1) a direct air carrier, except a helicopter operator, holding a certificate issued by the Department of Transportation pursuant to 49 U.S.C. 41102 or that has been found fit to conduct commuter operations under 49 U.S.C. 41738, or an exemption from 49 U.S.C. 41102, authorizing the scheduled transportation of persons; or (2) a foreign air carrier holding a permit issued by the Department pursuant to 49 U.S.C. 41302, or an exemption from that provision, authorizing the scheduled foreign air transportation of persons.

§ 250.2 Applicability.

This part applies to every carrier, as defined in § 250.1, with respect to scheduled flight segments using an aircraft that has a designed passenger capacity of 30 or more passenger seats, operating in (1) interstate air transportation or (2) foreign air transportation with respect to nonstop flight segments originating at a point within the United States.

§ 250.2a Policy regarding denied boarding

In the event of an oversold flight, every carrier shall ensure that the smallest practicable number of persons holding confirmed reserved space on that flight are denied boarding involuntarily.

§ 250.2b Carriers to request volunteers for denied boarding

(a) In the event of an oversold flight, every carrier shall request volunteers for denied boarding before using any other boarding priority. A “volunteer” is a person who responds to the carrier's request for volunteers and who willingly accepts the carriers' offer of compensation, in any amount, in exchange for relinquishing the confirmed reserved space. Any other passenger denied boarding is considered for purposes of this part to have been denied boarding involuntarily, even if that passenger accepts the denied boarding compensation.

(b) Every carrier shall advise each passenger solicited to volunteer for denied boarding, no later than the time the carrier solicits that passenger to volunteer, whether he or she is in danger of being involuntarily denied boarding and, if so, the compensation the carrier is obligated to pay if the passenger is involuntarily denied boarding. If an insufficient number of volunteers come forward, the carrier may deny boarding to other passengers in accordance with its boarding priority rules.

(c) If a carrier offers free or reduced rate air transportation as compensation to volunteers, the carrier must disclose all material restrictions, including but not limited to administrative fees, advance purchase or capacity restrictions, and blackout dates applicable to the offer before the passenger decides whether to give up his or her confirmed reserved space on that flight in exchange for the free or reduced rate transportation.

§ 250.3 Boarding priority rules

(a) Every carrier shall establish priority rules and criteria for determining which passengers holding confirmed reserved space shall be denied boarding on an oversold flight in the event that an insufficient number of volunteers come forward. Such rules and criteria shall reflect the obligations of the carrier set forth in §§ 250.2a and 250.2b to minimize involuntary denied boarding and to request volunteers, and shall be written in such manner as to be understandable and meaningful to the average passenger. Such rules and criteria shall not make, give, or cause any undue or unreasonable preference or advantage to any particular person or subject any particular person to any unjust or unreasonable prejudice or disadvantage in any respect whatsoever.

(b) Boarding priority factors may include, but are not limited to, the following:
(1) A passenger's time of check-in;
(2) Whether a passenger has a seat assignment before reaching the departure gate for carriers that assign seats;
(3) The fare paid by a passenger;
(4) A passenger's frequent-flyer status; and
(5) A passenger's disability or status as an unaccompanied minor.

§ 250.5 Amount of denied boarding compensation for passengers denied boarding involuntarily.

(a) Subject to the exceptions provided in § 250.6, a carrier to whom this part applies as described in § 250.2 shall pay compensation in interstate air transportation to passengers who are denied boarding involuntarily from an oversold flight as follows:

(1) No compensation is required if the carrier offers alternate transportation that, at the time the arrangement is made, is planned to arrive at the airport of the passenger's first stopover, or if none, the airport of the passenger's final destination not later than one hour after the planned arrival time of the passenger's original flight;

(2) Compensation shall be 200% of the fare to the passenger's destination or first stopover, with a maximum of $650, if the carrier offers alternate transportation that, at the time the arrangement is made, is planned to arrive at the airport of the passenger's first stopover, or if none, the airport of the passenger's final destination more than one hour but less than two hours after the planned arrival time of the passenger's original flight; and

(3) Compensation shall be 400% of the fare to the passenger's destination or first stopover, with a maximum of $1,300, if the carrier does not offer alternate transportation that, at the time the arrangement is made, is planned to arrive at the airport of the passenger's first stopover, or if none, the airport of the passenger's final destination less than two hours after the planned arrival time of the passenger's original flight.

(b) Subject to the exceptions provided in § 250.6, a carrier to whom this part applies as described in § 250.2 shall pay compensation to passengers in foreign air transportation who are denied boarding involuntarily at a U.S. airport from an oversold flight as follows:

(1) No compensation is required if the carrier offers alternate transportation that, at the time the arrangement is made, is planned to arrive at the airport of the passenger's first stopover, or if not, the airport of the passenger's final destination not later than one hour after the planned arrival time of the passenger's original flight;

(2) Compensation shall be 200% of the fare to the passenger's destination or first stopover, with a maximum of $650, if the carrier offers alternate transportation that, at the time the arrangement is made, is planned to arrive at the airport of the passenger's first stopover, or if not, the airport of the passenger's final destination more than one hour but less than four hours after the planned arrival time of the passenger's original flight; and

(3) Compensation shall be 400% of the fare to the passenger's destination or first stopover, with a maximum of $1,300, if the carrier does not offer alternate transportation that, at the time the arrangement is made, is planned to arrive at the airport of the passenger's first stopover, or if not, the airport of the passenger's final destination less than four hours after the planned arrival time of the passenger's original flight.

(c) Carriers may offer free or reduced rate air transportation in lieu of the cash or check due under paragraphs (a) and (b) of this section, if—
(1) The value of the transportation benefit offered, excluding any fees or other mandatory charges applicable for using the free or reduced rate air transportation, is equal to or greater than the cash/check payment otherwise required;

(2) The carrier fully informs the passenger of the amount of cash/check compensation that would otherwise be due and that the passenger may decline the transportation benefit and receive the cash/check payment;

and

(3) The carrier fully discloses all material restrictions, including but not limited to, administrative fees, advance purchase or capacity restrictions, and blackout dates applicable to the offer, on the use of such free or reduced rate transportation before the passenger decides to give up the cash/check payment in exchange for such transportation.

(d) The requirements of this section apply to passengers with “zero fare tickets.” The fare paid by these passengers for purposes of calculating denied boarding compensation shall be the lowest cash, check, or credit card payment charged for a ticket in the same class of service on that flight.

§ 250.6 Exceptions to eligibility for denied boarding compensation

A passenger denied boarding involuntarily from an oversold flight shall not be eligible for denied boarding compensation if:

(a) The passenger does not comply fully with the carrier's contract of carriage or tariff provisions regarding ticketing, reconfirmation, check-in, and acceptability for transportation;

(b) The flight for which the passenger holds confirmed reserved space is unable to accommodate that passenger because of substitution of equipment of lesser capacity when required by operational or safety reasons; or, on an aircraft with a designed passenger capacity of 60 or fewer seats, the flight for which the passenger holds confirmed reserved space is unable to accommodate that passenger due to weight/balance restrictions when required by operational or safety reasons;

(c) The passenger is offered accommodations or is seated in a section of the aircraft other than that specified on the ticket at no extra charge, except that a passenger seated in a section for which a lower fare is charged shall be entitled to an appropriate refund; or

(d) The carrier arranges comparable air transportation, or other transportation used by the passenger at no extra cost to the passenger, that at the time such arrangements are made is planned to arrive at the airport of the passenger's next stopover or, if none, at the airport of the final destination not later than 1 hour after the planned arrival time of the passenger's original flight or flights.

§ 250.8 Denied boarding compensation

(a) Every carrier shall tender to a passenger eligible for denied boarding compensation, on the day and place the denied boarding occurs, except as provided in paragraph (b), cash or an immediately negotiable check for the appropriate amount of compensation provided in § 250.5.

(b) Where a carrier arranges, for the passenger's convenience, alternate means of transportation that departs before the payment can be prepared and given to the passenger, tender shall be made by mail or other means within 24 hours after the time the denied boarding occurs.

Two different regulatory approaches to delays & cancellations Department of Transportation
“Each airline has its own policies about what it will do for delayed passengers waiting at the airport; there are no federal requirements. If you are delayed, ask the airline staff if it will pay for meals or a phone call. Some airlines, often those charging very low fares, do not provide any amenities to stranded passengers. Others may not offer amenities if the delay is caused by bad weather or something else beyond the airline's control. Contrary to popular belief, airlines are not required to compensate passengers whose flights are delayed or canceled. As discussed in the chapter on overbooking, compensation is required by law only when you are "bumped" from a flight that is oversold. Airlines almost always refuse to pay passengers for financial losses resulting from a delayed flight. If the purpose of your trip is to close a potentially lucrative business deal, give a speech or lecture, attend a family function, or connect to a cruise, you might want to allow a little extra leeway and take an earlier flight. In other words, airline delays and cancellations aren't unusual, and defensive planning is a good idea when time is your most important consideration.”

Contrast to Regulation 261/2004
“The trouble and inconvenience to passengers caused by cancellation of flights should also be reduced. This should be achieved by inducing carriers to inform passengers of cancellations before the scheduled time of departure and in addition to offer them reasonable re-routing, so that the passengers can make other arrangements. Air carriers should compensate passengers if they fail to do this, except when the cancellation occurs in extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.” [12]
And “Passengers whose flights are delayed for a specified time should be adequately cared for and should be able to cancel their flights with reimbursement of their tickets or to continue them under satisfactory conditions.” [17]

Convergence in Bumping Cases? US DoT:
“It’s just common sense that if an airline loses your bag or you get bumped from a flight because it was oversold, you should be reimbursed. The additional passenger protections we’re announcing today will help make sure air travelers are treated with the respect they deserve.” (US Transport Secretary Ray LaHood)

EU Reg 261/2004:
“While Council Regulation (EEC) No 295/91 of 4 February 1991 establishing common rules for a denied boarding compensation system in scheduled air transport(4) created basic protection for passengers, the number of passengers denied boarding against their will remains too high.”  “The Community should therefore raise the standards of protection set by that Regulation both to strengthen the rights of passengers and to ensure that air carriers operate under harmonised conditions in a liberalised market.” [3] and [4]

Different Policy Objectives – Different Outcomes

Potential Overlaps in Scope of Application
EU Airlines Flight 4 from JFK to LHR – technical problem delays departure on a busy day at JFK – long wait for take off following repair JFK LHR Pushback from
Gate Take-off Scheduled Arrival
Time Arrival at Gate Tarmac Delay Rule Liability EU Reg 261/2004 Liability Possible MC Liability for
Consequential Loss

The Limitations of the Montreal Convention
Canada - United States – United Kingdom – Germany & Israel Claims of Discrimination & Fundamental Rights Violations

Introduction – the Underlying Themes and Patterns Underlying legal instrument protecting certain fundamental rights and providing for punitive liability of non-complying entity
Canada – Official Languages Act
United States – inter alia, the Air Carrier Access Act (ACAA) & 49 U.S.C. § 46,101
United Kingdom – inter alia, UK Disability Regulations & EC Disability Regulations
Israel – Anti-Discrimination Law
In-flight event (i.e. between embarkation and disembarkation) violates one or more of the rights guarded by the subject provisions
Resulting Tension – Exclusivity of Montreal Convention v. Protection of Fundamental Values and Rights expressed in municipal sources of law

The Balancing Issue in the terms of MC 99 Because the discriminatory incidents usually occur onboard, two MC99 provisions are relevant

Article 17 (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.

i.e: carrier liability for injury to person possible only if (i) caused by accident and (ii) occurred within the aircraft or in the process of embarkation and disembarkation

Article 29
In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.

The Legal Issues on Exclusivity – Three Possibilities
Possibility 1 – the most broad construction of exclusivity
All potential carrier liability, on the basis of any ground, brought with respect to international air carriage is governed by the Convention: i.e.
If the contact of carriage satisfies Article 1 such as to be governed by MC then the only claims that can be brought against an air carrier must satisfy Article 17, Article 18 or Article 19 and the related conditions – if a claim cannot be founded on the basis of any of these provisions, it cannot be brought against the carrier

Possibility 2 – the looser construction of exclusivity
All potential claims against a carrier pertaining to international carriage that are brought with respect to one of three headings of MC99 (i.e. personal injury/ baggage &cargo / delay) can only be brought under the Convention – i.e. if a claim of personal injury is brought, it must comply with the provisions of Article 17 (involve an accident occurring within the temporal scope of the Article that causes the injury) – however, other causes of action not relating to one of the three headings of the Convention can be brought under national law – i.e. here exclusivity is restricted to reserving the domain of the subject matter of Articles 17 -19 of MC99, but to also allow other claims not falling within the scope of one of the three provisions

Possibility 3 – the loosest construction of exclusivity
Even for claims falling squarely within one of the three areas expressly provided for in MC99 (ie personal injury, baggage/cargo or delay), the Convention will be set aside for the protection of other values

Canada – Thibodeau v Air Canada The Supreme Court of Canada addressed the issue of the Convention’s exclusivity

Majority Opinion – key observations
Summary: “The Montreal Convention’s uniform and exclusive scheme of damages liability for international air carriers does not permit an award of damages for breach of language rights during international carriage by air. To hold otherwise would do violence to the text and purpose of the Montreal Convention, depart from Canada’s international obligations under it and put Canada off-side a strong international consensus concerning its scope and effect.” [6]

“The Montreal Convention makes clear that it provides the exclusive recourse against airlines for various types of claims arising in the course of international carriage by air. It provides that all “actions for damages” in the carriage of passengers, baggage and cargo are subject to the conditions and limitations of liability set out in its provisions. The provision could hardly be expressed more broadly; it applies to “any action for damages, however founded”. [37]

Court’s recital of the remarks made by the chairman of the International Conference on Air Law for the negotiation of the MC: “The provisions contained in Article [29] (Basis of Claims) made it clear that an action which was brought for damages, however founded, whether under the new Convention or in contract or tort or otherwise, could only be brought subject to the conditions and such limits of liability as were set out in the Convention. There was indeed jurisprudence which suggested that it was exclusive. It was not possible to get around the provisions of the Convention regarding the burden of proof, etc., by bringing an action in tort or by attempting to bring an action outside the Convention ” [38]

“The Montreal Convention sets out in Chapter III the types of liability of carriers that are permitted and the applicable limits on compensation. It also clarifies the set of events that Article 29 purports to cover. Articles 17 to 19 establish that the carrier is liable for damage sustained [in the case of Articles 17-19]” [39] and also

“I dwell on this point because the appellants’ submissions, while not doing so directly, in effect take issue with this exclusivity principle. Instead of asking whether their claims fall within those permitted by the Montreal Convention, the appellants seek to circumvent the exclusivity of the Montreal Convention by arguing that their claims are not specifically excluded. The appellants have never suggested that the Thibodeaus’ claims under the OLA could also be maintained under Articles 17 to 19 of the Montreal Convention. This, respectfully, is the fatal flaw in their argument.” [49]
This would suggest that MC99 is to be construed in the most exclusive—centric way: i.e. if the airline is sued for international carriage-related events, it can only be sued for bodily injury caused by an accident or for delay or for baggage/ cargo claims
But then see:
“two of the main purposes of the Warsaw Convention, and hence of the Montreal Convention, are to achieve a uniform set of rules governing damages liability of international air carriers and to provide limitation of carrier liability. These purposes can only be achieved by the Montreal Convention if it provides the exclusive set of rules in relation to the matters that it covers.” [47]

“While we do not have to resolve all of the issues that may arise with respect to how this exclusivity principle operates, the Montreal Convention’s text and purpose as well as a strong current of jurisprudence make it clear that the exclusivity of the liability scheme established under the Montreal Convention extends at least to excluding actions arising from injuries suffered by passengers during flight or embarkation and debarkation when those actions do not otherwise fall within the scheme of permitted claims.” [48]

Could this suggest a more limited scope of exclusivity? i.e. that if the matter is not covered by the Convention, e.g. the fundamental rights in issue in this case, it can be raised against the carrier - Probably not:
Recall para 37 – if damages are claimed against the airline, then the claim must comply with the Convention and its grounds of actionability
Dismissal of T’s arguments
Argument 1: “MC does not limit claims for compensation for public law claims for…breach of fundamental rights arising under quasi-constitutional statutes such as the OLA”  assumption of argument: MC99 does not have temporal and substantive exclusivity: the claim was premised on events that occurred in flight but that did not amount to an aviation accident: if there is no MC exclusivity, public law (i.e. non-MC) claims can be raised ------- the corollary to this would be that if MC99 does have such exclusivity, then, in the absence of injury and an accident, a claim based on an event that occurred in flight (i.e. within the temporal scope of Article 17) would be barred, for would not satisfy the conditions of Article 17 – the Court agreed with the latter: “ Permitting an action in damages to compensate for “moral prejudice, pain and suffering and loss of enjoyment of [a passenger’s] vacation that does not otherwise fulfill the conditions of Article 17 of the Montreal Convention (because the action does not relate to death or bodily injury) would fly in the face of Article 29.” [64]

This temporal and substantive exclusivity has been respected sufficiently so as to preclude the circumvention of the Convention’s exclusivity on the basis of the legal nature of a claim: “The limitation [of Article 29] applies to “any action” in the carriage of passengers, baggage or cargo, “for damages, however founded, whether under this Convention or in contract or in tort or otherwise”. There is no hint in this language that there is any intention to exempt any “action for damages” in the carriage of passengers, baggage or cargo depending on its legal foundation, such as when a plaintiff brings forward a statutory monetary claim of a public law nature based on the breach of quasi-constitutional rights.” – and c.f. para 74-79 (private v. public law basis of claim)

Rejection of Reg 261/2004 kind of argument, i.e. standardized/automatic compensation of common injury that is shared by the travelling public so as to fall outside the scope of the convention - not justified on the facts

Rejection of attempt to circumvent the temporal scope of Article 17 – i.e. the events leading to the actionable event occurred before disembarkation through Air Canada’s alleged failure to duly comply with its OLA duties – “courts must focus their application of the exclusivity principle on the location or the activity of the passenger when the accident or occurrence directly causing the particular injury giving rise to the claim occurred, not on some antecedent fault” [85]

Issues – the foregoing was premised on a finding that the fundamental value of Canada’s bilingualism protected by the OLA did not conflict with MC99 – “ As I see it, when they are properly interpreted, there is no conflict between the general remedial powers under the OLA and the exclusion of damages under the Montreal Convention and there is no need to consider which would prevail if there were.” [5]

However, the majority opinion did recognize that the case in issue “implicates two important values” [3]

Therefore,

Properly interpreted, the majority opinion cannot be construed as answering the question of whether the exclusivity of MC99 will yield to or prevail over constitutionally protected or otherwise fundamental values - consider the following hints:

The Court approved the exclusive-centric reasoning of the UK Supreme Court in a contemporary decision involving a severe disability right infringement onboard an aircraft (see below) without distinguishing the nature of the human right in issue

The Court attempted to construe the OLA in a way consistent with the MC and the obligations assumed by Canada upon the Convention’s ratification [93]
 The Court was reluctant to find that the “legislative conflict” threshold had been met: “We are not in a situation…in which allowing both provisions to operate empties the remedial provisions in the statute of much of their meaning. It is not suggested that the powers of the Commissioner, including his authority to apply to the Federal Court for remedies under s. 78 of the OLA, conflict with the limitation on damages under the Montreal Convention. Damages are by no means the only remedies available under s. 77(4) and the limitation on their availability set out in Article 29 of the Montreal Convention applies only in respect of claims by passengers arising out of international carriage by air. I therefore reject the contention that my proposed interpretation of the Montreal Convention somehow silences language rights.” [116] – exclusivity-friendly interpretation: it could have insisted upon that damages should not be precluded as remedies

But possibility not ruled out – see [77]: it is “subject to constitutional considerations [that] the scope od the exclusivity principle in the Montreal Convention cannot be modeled on national definition of damages [ie public v. private law]” Minority Opinion – key observations

Different perception of exclusivity  “The meaning of Article 29, considered in context and in light of the object and purpose of the Montreal Convention, therefore, points to a limited scope of exclusivity, and should be interpreted as directing that the Montreal Convention governs only those actions brought for damages incurred “[i]n the carriage of passengers, baggage and cargo”, namely, actions covered by Articles 17, 18 and 19.” [172]

Reasoning – Article 24 of Warsaw Convention: “in cases covered by [Articles 17/18/19]”…there will be exclusivity  in effect, “The only real difference, in fact, between the language in Article 24 of the Warsaw Convention and Article 29 of the Montreal Convention is that the words in Article 24 clarifying that the actions for damages relate to the cases covered by Articles 17, 18 and 19, are not found in Article 29.” [148]  “but while the primary goal of the Warsaw Convention had been to limit the liability of carriers in order to foster the growth of the nascent commercial aviation industry, the state parties to the Montreal Convention were more focused on 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”. [159]  “At no time was there ever any suggestion that the new Convention was designed to reduce the ability of passengers to sue carriers [as the majority opinion would suggest]” [160]  “There is, in fact, no evidence that state parties intended to replace the subject-specific scope of exclusivity established in Article 24 of the Warsaw Convention with a universal rule of exclusivity in Article 29 of the Montreal Convention.” [161]

In light of this weak MC exclusivity, the nature of the OLA as an “instrument synergistically aligned with the language protections in the Canadian Charter of Rights and Freedoms…helps broker the interpretative outcome. In my view, Article 29 of the Montreal Convention should be interpreted in a way that is respectful of the protections given to fundamental rights, including language rights, in domestic legislation.” [167] Reasons:

“object and purpose of Convention” and significance of rights – “There is no evidence in the Parliamentary record or the legislative history of the Convention to suggest that Canada, as a state party, intended to extinguish domestic language rights protection by ratifying or implementing the Montreal Convention. Given the significance of the rights protected by the Official Languages Act and their constitutional and historic antecedents, the Montreal Convention ought to be interpreted in a way that respects Canada’s express commitment to these fundamental rights, rather than as reflecting an intention to subvert them.”
MC silent on silencing of domestic language rights – “it would be an aberrant rule of treaty interpretation, and one which is hard to see as being consistent with the “good faith” required by Article 31 of the Vienna Convention, to conclude that a treaty which is silent as to its effect on domestic legislation protecting fundamental, let alone constitutional rights, can be construed as silencing those rights.”
“although it is not determinative, we cannot ignore the fact that we are dealing with a commercial treaty. This Court has often said that domestic law should be generously interpreted in alignment with international law and its human rights values. It has never said that international law should be interpreted in a way that diminishes human rights protected by domestic law.”  contrast to majority argument which denied classification on basis of nature of treaty and law that stems therefrom

Where does this leave us with regard to Canadian jurisprudence? Majority Opinion Minority Opinion Strong MC Exclusivity Reconciliation of OLA and MC99 Precedence of fundamental value
over MC possible or vv not addressed Weak MC Exclusivity Fundamental Value not pre-empted by MC since not within MC’s scope Regardless, interpretation of MC should not subvert these rights

The United Kingdom – Supreme Court Case of Stott v Thomas Cook
Incident that occurred in the course of disembarkation and that did not amount to accident was compensable under national disability laws – held by SC to be pre-empted by MC99 Art 29
National Legislation – UK Disability Regulations
aviation specific: Criminal Liability of air carrier for non-compliance with obligations imposed under EU Disability Regulation
Compensation claims by disabled individuals:
“(1) A claim by a disabled person or a person with reduced mobility for an infringement of any of his rights under the EC Regulation may be made the subject of civil proceedings in the same way as any other claim in tort or (in Scotland) in reparation for breach of statutory duty.
(2) For the avoidance of doubt, any damages awarded in respect of any infringement of the EC Regulation may include compensation for injury to feelings whether or not they include compensation under any other head.”

Crux of decision – MC exclusivity, reaffirming earlier HL decision in Sidhu: the Convention “gave to passengers significant rights, easily enforceable, but it imposed limitations. [It was] held that the whole purpose of article 17, read in its context, was to prescribe the circumstances – that is to say, the only circumstances – in which a carrier would be liable to the passenger for claims arising out of his international carriage by air. To permit exceptions, whereby the passenger could sue outside the Convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which the Convention did not create any liability on the part of the carrier. ”  since the mere embarrassment and humiliation was not an Article 17 accident, no liability

NB: contrast UK definition of accident to that of United States Supreme Court in Husain – the facts of the case would have amounted to a Husain accident
Non-action of flight attendant can give rise to accident
Cabin crew conduct that falls short of industry standards can amount to unusual and unexpected event external to passenger (although this finding was reached by the first instance court and was not on appeal before the Supreme Court of the United States)
The weak causal nexus between the “accident” and the bodily injury that was accepted by Clarence J was satisfied in this case
However, the claim would have been defeated even in a Husain regime for want of physical injury: mere mental distress and embarrassment unrelated to physical injury are not compensable: in Husain, the death in issue was.

Contrast to UKHL Re DVT Litigation and Povey v Qantas (Australian High Court)

Significance of case – UKSC guarded exclusivity of Convention by dismissing three arguments that could insidiously undermine it

Argument 1: Nature of the complaint not covered by MC99

Submission of Plaintiff: “the [Montreal Convention] is not in any sense concerned with giving access to air travel to disabled persons. Rights conferred in order to ensure equal access to air travel for disabled people (and remedies granted for breach of those rights) are simply not – to use Lord Hope’s language in Sidhu – ‘areas with which [the Convention] deals’. For this reason, it is submitted that it would be a mistake to use the MC to limit the rights and obligations that Union legislation imposes in relation to such access.”

If accepted, temporal scope of Article 17 would have been ignored, and Convention’s exclusivity for onboard occurrences would have been reduced from comprehensive pre-emption of all other non-MC based claims to limited pre-emption of national law causes only for claims pertaining to injury

Argument rejected: “what matters is not the quality of the cause of action but the time and place of the accident or mishap. The Convention is intended to deal comprehensively with the carrier’s liability for whatever may physically happen to passengers between embarkation and disembarkation. The answer to that general question also covers the more specific question.”

Argument 2: Circumvention of MC’s exclusivity through analogous argument to ECJ’s justification of Reg 261/2004

For this, we need to look at how the Regulations of the European Union are enforced EU Legal Order National Legal Order of Member State EU Reg Nationallaw European Court of Justice Regulation enacted in Brussels Regulation receives immediateand automatic effect in the national law of the Member
State without requiring implementing national legislation Regulation enforced by national courts If national court requires clarification on how to enforce Regulation, itrefers question to CJEUfor clarification CJEU answers and national courtenforces Regulation as per clarification National court A reference by a national court can be used by the ECJ to expand the scope of a Regulation: see e.g. Sturgeon

In the present case, there were two relevant EU regulations, i.e. The Disability Regulation (that conferred upon the plaintiff the disability-based cause of action) and the Montreal Convention Regulation (through which the European Union acceded to MC99)

Argument = UKSC should refer the following question to ECJ: “Whether the right to compensation for breach of duties to take reasonable steps to assist disabled persons in the context of air travel (which the Union legislator specifically contemplated in the EC Disability Regulation), like the rights to compensation conferred by Regulation 261/2004, should be regarded as falling within a ‘different regulatory framework’ from, or as ‘complementary to,’ the MC (rather than in conflict with it) ” and “Whether compensation awarded in respect of breaches of the duties imposed by the EC Disability Regulation both on board the aircraft and earlier, like compensation for delay awarded under Regulation 261/2004, ‘simply operates at an earlier stage than the system which results from the Montreal Convention’”

In short – refer the question to the ECJ and invite it to reapply its arguments used in IATA & ELFAA to circumvent the exclusivity of MC is an Article 17 situation

Declined – “The question in the cases about Regulation (EC) 261/2004 was whether the scheme of standardised remedial measures was compatible with the Montreal Convention. The court recognised that any claim for damages on an individual basis would be subject to the limits of the Convention (IATA para 42). Mr Stott’s claim is for damages on an individual basis”. Hence, no need to refer.

And, “The EC Disability Regulation …leaves enforcement to the Member States. It requires Member States to lay down rules on penalties for infringement but it does not require such penalties to include financial compensation. ” “To summarise, this case is not about the interpretation or application of a European regulation, and it does not in truth involve a question of European law, notwithstanding that the Montreal Convention has effect through the Montreal Regulation. The question at issue is whether the claim is outside the substantive scope and/or temporal scope of the Montreal Convention, and that depends entirely on the proper interpretation of the scope of that Convention. The governing principles are those of the Vienna Convention on the Law of Treaties. If the issue concerned the compatibility of the Regulation with the Convention (as in Nelson) it would indeed involve a question of European law, but no such question arises [since it is up to Member States to enforce the Regulation and they can do so in a non-compensatory fashion] and there is no basis for supposing that the Montreal Convention should be given a different “European” meaning from its meaning as an international convention. On the contrary, it was the acknowledged purpose of the Regulation to ensure full alignment between the Convention as an international instrument and community law.”

Argument 3: Circumvention of the Temporal Scope of Art 17 On the facts of the case, the factual chain culminating in the plaintiff’s humiliation during embarkation began on the ground, during check in  argument: “liability for breach of the Disability Regulations arose prior to embarkation, and therefore…[the] claim was not pre-empted by the Montreal Convention”.

Denied – “The particulars of injury to Mr Stott’s feelings and the particulars of aggravated damages related exclusively to events on the aircraft. In the course of argument it was suggested that Mr Stott had a complete cause of action before boarding the aircraft based on his poor treatment prior to that stage. If so, it would of course follow that such a pre-existing claim would not be barred by the Montreal Convention, but that was not the claim advanced. Mr Stott’s subjection to humiliating and disgraceful maltreatment which formed the gravamen of his claim was squarely within the temporal scope of the Montreal Convention. It is no answer to the application of the Convention that the operative causes began prior to embarkation.”

Exclusivity over Policy “[It was] submitted that the consequences were unfair, because if Mr Stott and his wife had not been misled at the check-in desk into believing that their seating problem would be sorted out at the departure gate, they would never have proceeded and they would have been able to recover damages for their loss. The complaint is just, but that is not a sufficient reason to reinterpret the Convention.”

The United States: King v American Airlines Alleged racial discrimination in the course of embarkation in the form of bumping

Similar theme:

“Uniformity requires, however, that passengers be denied access to the profusion of remedies that may exist under the laws of a particular country, so that they must bring their claims under the terms of the Convention or not at all [following Tseng]. Recognizing this, the Supreme Court in Tseng held that the Convention's pre-emptive effect on local law extends to all causes of action for injuries to persons or baggage suffered in the course of international airline transportation, regardless of whether a claim actually could be maintained under the provisions of the Convention”

“The Kings' discrimination claim is pre-empted by the Warsaw Convention if the events giving rise to the claim occurred in the course of the international “carriage of passengers and baggage,” regardless of whether the original or the amended Article 24 controls. Yet we do not interpret Article 24 in isolation. In determining whether a claim is pre-empted because it falls within what the Supreme Court has termed the “substantive scope” of the treaty, we are directed to look to the Convention's liability provision [i.e. Articles 17 to 19]”.

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“we hold that the events in question occurred in the course of embarkation, and that the Kings' action therefore falls within the substantive scope of Article 17…Article 17's “substantive scope” extends to all “passenger injuries occurring ‘on board the aircraft or in the course of any of the operations of embarking and disembarking’ ”-even if the claim is not actionable under the treaty. Although by its terms Article 17 limits recovery to passengers who have sustained “bodily injury,” the Supreme Court in Tseng made clear that this restriction on liability affects neither the analysis of the substantive scope of the provision nor its pre-emptive effect. [Like in Tseng,] although the Kings would not be able to maintain an action under Article 17 for non-bodily injuries stemming from the discriminatory bumping, their claim is pre-empted if it arose from events that took place during embarkation.”

Plaintiff argument: necessary to “distinguish between civil rights claims and actions sounding in tort, and hold that the latter fall within the ambit of the Warsaw Convention while the former do not.”  “The aim of the Warsaw Convention is to provide a single rule of carrier liability for all injuries suffered in the course of the international carriage of passengers and baggage. As Tseng makes clear, the scope of the Convention is not dependent on the legal theory pled nor on the nature of the harm suffered.”

Exclusivity over Policy: “Plaintiffs raise the specter that our decision will open the doors to blatant discrimination aboard international flights, invoking images of airline passengers segregated according to race and without legal recourse. They suggest that, despite Article 24's plain mandate that the Warsaw Convention pre-empts “any cause of action, however founded,” we should nonetheless carve out an exception for civil rights actions as a matter of policy. This we decline to do. “[I]t is our responsibility to give the specific words of the treaty a meaning consistent with the shared expectations of the contracting parties”[per Saks]”

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But note that, both under Stott in the UK and under King in the United States, although a carrier may not be liable for damages to a passenger, they may remain criminally or administrative liable, respectively, for their breach of national disability or discrimination legislation
“It is for the Civil Aviation Authority to decide what other methods of enforcement should be used, including possible criminal proceedings. ” (Stott)
“Moreover, while private suits are an important vehicle for enforcing the anti-discrimination laws, they are hardly the only means of preventing discrimination on board aircraft. Federal law provides other remedies. Responsibility for oversight of the airline industry has been entrusted to the Secretary of Transportation. The Kings could, therefore, have filed a complaint with the Secretary. The FAA prohibits air carriers, including foreign air carriers, from subjecting a person to “unreasonable discrimination.” The Secretary has the authority to address violations of FAA provisions, including the power to file civil actions to enforce federal law” (King)

Consequently, the triumph of the exclusivity of the Montreal Convention is restricted to a carrier’s liability in damages vis-à-vis a passenger, and it does not insulate carriers from fines payable to the government

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Israel

Shalbi v El Al
Allegation of racially discriminatory treatment by El Al security personnel at the gate in the course of embarkation
None of the claims were phrased in terms of Warsaw Convention
Punitive damages (i.e. with no requirement of damage incurrence) awarded on basis of Anti-Discrimination Law

El Razaak v El Al
Special luggage check due to nationality of passengers could not be conducted and passengers offered to board flight without baggage that would be forwarded at destination following successful screening
None of the claims were phrased in terms of Warsaw Convention
El Al held liable under
Contract law
Constitutional Law for discrimination
EUR 2,000 damages per passenger for public humiliation

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Although express references to WC/MC are not be expected, since the two Conventions have been transposed into the national law of Israel through implementing legislation, the substance of the damages awarded does indicate a displacement of the Convention in favor of certain rights to non-discrimination

“Indeed, it was mentioned that in cases of claims for compensations due to a delay, the Israeli Courts do apply the Warsaw Convention. Such cases involve a ‘generic’ delay or damage and ‘generic’ passengers. Rulings according to the Convention in these cases do not convey the feeling of justice having been denied. This statement will not be correct in relation to cases involving discrimination due to ethnicity. The Court is expected to defend basic civil rights, or alternatively, to discuss them in light of the need for flight security. The result may be seen as justified or unjustified, but they cannot be neutral, and they cannot deny compensation for reasoning which is not specific to the case”
Neta Palkovitz, “El-Al’s Liability for Claims Related to Security Services in the Israeli Context: Between Exclusivity and Domestic Policy” (2012) 37:3 Air & Space L 213 at 227

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Conclusion

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Challenges to Carrier’s Insulation from Liability Under National Law Montreal Convention Exclusivity < Carrier Overall Liability for acts to passengers EU Mostly, limited liability to passengers in form of damages under MC, but possible liability to governments for violation of passenger rights EU Reg 261/2004 Tarmac Delay Rules
Bumping Fundamental rights U
S
A

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Thank you

The Montreal Convention, Exclusivity and the

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