Air travel has long since ceased to be a glamorous or exclusive luxury available only to a few. The rise of low cost carriers and their impact on the marketplace has meant that travelling by plane has become mundane and commonplace; for passengers however, the legal complexities involved in suing an airline are anything but. Airline passengers wishing to sue anairline for any personal injury must take proceedings under the Montreal Convention. It was signed in 1999 by 118 nations and replaced the 1929 Warsaw Convention. The Convention entered into force in Irish law by virtue of the Air Transport and Navigation (International Conventions) Act 2004. EC Regulation 889/2002 implemented the Montreal Convention with certain supplementary provisions. The Regulationcame into effect on the 28th June 2004, the date of the entry into force of the Montreal Convention for the Community.
The Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. In addition, EC Regulation 889/2002 extends its scope to include domestic flights within a member state. The liability of the carrier is determined by Article17 of the Convention. All that is required for the airline to be liable for damage sustained in case of death or bodily injury of a passenger is that the accident which caused the death or injury took place on board the aircraft or in the course of embarking or disembarking. It should be noted that the conditions for the imposition of liability on the carrier do not include any element of fault orblameworthiness or failure to observe a proper standard of care on the part of the carrier. Article 20 of the Convention contains a provision allowing for partial or total exoneration of the airline if the plaintiff is found to have in some way contributed to the accident.
The level of compensation in respect of the death or injury to passengers is set out in Article 21. Thecarrier cannot exclude or limit its liability for damages in personal injury cases up to 100,000SDRs (Special Drawing Rights- a basket of currencies, roughly equivalent to €150,000) There is no requirement to prove any kind of negligence on the part of the carrier. Article 21(2) states that for damages exceeding this figure the airline shall not be liable for the excess if they can show that thedamage was not due to the negligence or wrongful act or omission of the carrier or its servants or agents, or that a third party was completely responsible. It should be noted however that Regulation 889/2002 only allows a Community air carrier avail of this 21(2) relief if they can prove the damage was not due to the negligence or other wrongful act or omission of the carrier or its servants oragents. Liability still attaches for the negligence of third parties. A Community air carrier is one licensed by a Member State. The Convention provides that exemplary, punitive or other non-compensatory damages are not recoverable.
Jurisdiction is also determined under the Convention. There are five possible fora for the plaintiff to choose amongst. An action for damages must bebrought in the territory of one of the States parties either before the court of the domicile of the carrier or of its principle place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination. For personal injuries claims a further possibility exists; the place of residence of the passenger, provided that the carrieroperates services from that country and it has a place of business there. It is generally accepted that in the case of a return ticket or trip regarded from the outset as a single operation, the place of departure will also be the place of destination. There is a two year statute of limitations for actions under the Convention.
The Convention is the only means by which a case may be...