The Warsaw Convention Summary

The Warsaw convention was created in 1929 with 152 member state all over the world. It specified the conditions under which airline could be liable for the death or injury to passengers, loss or damage to baggage and delay; sets limits to the amount of compensation that could be claimed; and excluded resort to national laws. Later on, the Warsaw convention was amended by the Montreal convention in 1999. It preserved most of the aspects of the Warsaw convention but emphasis on consumer rights. The Montreal convention is applicable to all international flights carrying passenger, cargo or baggage. At the beginning paragraph of article. 17 of the Montreal convention regulates the liability of the airlines in case of bodily injury or death of the passengers; “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." First it needs to be certain that the flight is operating between member states, then the passenger who wants to claim compensation for the damages, must try under the Montreal convention. To be clear, when convention is applicable, passenger cannot go for any action for damages under the domestic law. To achieve compensation, two things must be proven. First of all the damage that happened on-board of the aircraft or embarking or disembarking was an accident. Secondly, the plaintiff suffered bodily injury or death. However, the word bodily injury and accident are inexplicit and have been interpreted in different ways by the courts. The next part will examine the relevant cases under Montreal convention and EU regulation in order to advice hamlet and Ophelia, whether they will be able to claim compensation for the damages or not.

Hamlet and Ophelia booked a direct ticket with Bard airways using the airline’s website. The Headquarter of budget airways is near Birmingham. The operating license was granted by the civil aviation authority in the United Kingdom. As per EC regulation 889/2002, the Ba

rd airways Ltd is a community Air carrier [1] . EU regulation defines “a community air carrier is an air carrier with a valid operation license granted by the member state [2] . Bard airways was scheduled to go from Sussex airport to Copenhagen airport [3] the flight was scheduled to depart at 3:25 pm and land at 6:20 pm. Their confirmation stated that check-in would close 40 minutes before departure. The similar situation was deemed in Kapadia v Iberia aeras de espana s.a. [4] . Where, employee of the airline wrote in the ticket that late comers will be “denied boarding". But the county court held that the claimant had not been denied to boarding. In our case, it was mentioned in the ticket that check-in would close 40 minutes before closing. But during the day hamlet and Ophelia arrived late because of the train strike and arrived at 2:50 pm. However, the plane was cancelled; a massage was shown on the screen behind [5] . Article 2(l) defines a cancellation as “the non-operation of a flight which was previously planned and on which at least one place was reserved". But European Court of Justice said, the flight is not cancelled only because it was delayed for long time but also it is cancelled if the air carrier arranges another flight for the passengers which are different from the original flight they booked for. Moreover, European court of justice emphasizes the following is not considered to be cancelled [6] . “a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision [i.e. Article 5(3)], unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control.". Hamlet and Ophelia were able to talk to one of the representative of the airline who told them that there had been a problem with one of the engine of the airplane that is why the flight is cancelled. The cancellation does not meet the recital 14 regulation of extraordinary circumstances. Article 5 (1) (c) states the extraordinary circumstances are political instability, mythological conditions incompatible with the operation of the flight concerned, security risk, unexpected flight safety shortcomings, strikes that affect the operation air carrier. However, European court of justice emphasized that the list provided in recital 14 is only indicative. No compensation would be given if the reason is not mentioned in extraordinary curcumstances. However, hamlet and Ophelia were offered to rebook the flight on the following day due to depart at 11:45 am. They thought that they have no option rather than accepting the offer. They spend the night at local hotel which Ophelia paid for using her credit card. But the article 9 “right to care" states that if the flight cancelled, airline should provide free meal and refreshment, two free (call, fax, email), hotel accommodation where a stay of one or more nights become necessary and transport between hotel and airport. Hamlet and Ophelia can easily claim for the compensation under regulation 261/2004 of the expenses that they have spent for hotel, transport and food and for the cancelation of the flight because it does not fulfill the extraordinary circumstances.

A flight is delay when it arrives after 15 minutes of the scheduled time or more. Under the article 19; the carrier will be responsible for any damages caused by delay in the carriage of passenger and baggage [7] . On the following day when hamlet and Ophelia arrived back at the check-in 10:30am to find that new flight had been delayed due to fog at Copenhagen. It was now expected to depart at 1:40pm. The flight eventually took off at 2:45pm [8] . Article 6 mentioned that if the distance for intra-community flight is over 1500 Km and if the duration is 2 hours or more than the passenger will be entitled to reimbursement [9] . In this situation, the distance between Sussex and Copenhagen is about 1000 km and the flight delayed for 2:50 hours. On the other hand, European court of justice held that passengers of a flight which had been delayed for 3 hours or more than the actual time can rely on the right for compensation under Article-7, except, if the delay was caused by the extraordinary circumstances which could not be avoidable [10] . For example, Marshall’s flight was cancelled on the way back to London from Madrid. due to the volcanic ash [11] . The court held that Marshal has a choice to re-routed by the airline or accepting reimbursement and he took the later. In our case the flight was delayed caused by the heavy fog which is related to the security of aircraft and the passenger [12] thereby, hamlet and Ophelia would not be entitled for the compensation.

The Warsaw convention mentioned in Article 18 (1) that the carrier will be liable only the baggage that have been registered with it, damage, destroy or lost during air carriage [13] . Furthermore, for the unchecked baggage, Montreal convention states in Article 17 (2) that it will only be liable if the damage, loss or destruction was the fault of the carrier or its agent or employees. Walz v Clickair S.A. [2010] ECR 00. The registered baggage was lost from the airport [14] . Plaintiff claimed with Delta airlines seeking the faire value. Court held the case under the Warsaw convention 22 (2) and the defendant had to pay $640 as a fair value. This situation deemed that hamlet and Ophelia did register the suitcase but not the laptop. Also the laptop was damaged by the carelessness of the passenger [15] . No operation of the carrier or the employees was involved with this incident. Thereby, under the Montreal convention they will not be able to claim compensation for laptop.

The accident must take place on board the aircraft or in course of embarking and disembarking. The claim will not be under Montreal convention until he embarks the aircraft and after he disembarks. [16] . To apply the uniform rules on passenger liability it has to be established that the accident took place of any operation of embarking or disembarking or the onboard. It is possible to determine the embarkation and disembarkation area, when passenger reached the boarding after the announcement or he is still on the apron. However, some action can change the decision as a walk about in the terminal along with the employees or an agent. If the accident was not took place in embarking or disembarking or onboard passenger cannot claim for remedies from the carrier under the Montreal convention. But passenger can claim another actor therefore he has to prove negligence and the limitation of liability will be different from Montreal convention.

American court held that “ the operation of disembarking has terminated by the time the passenger has descended from the plane by the use of whatever mechanical means have been supplied and has reached a safe point inside of the terminal, even though he may remain in the status of a passenger of the carrier while inside the building" [17] .

According to my view; the best suitable interpretation of the word “accident" was given by the United States district court [18] .When a passenger attempt to exit the row from the window seat and fall down on a women fractured her arm. Following Saks, the court described that the damage was caused by an “unexpected or unusual event external to the passenger" court disagreed that as the damage was not caused by an unexpected and an abnormality, the claim couldn’t be proceed. The notion is that the accident must be related to the aircraft operation under the Montreal convention. However, the other courts interpret the term “accident" in different way [19] . What is clear is that the plain text of the Montreal convention" provides no answer to the question of whether the accident has to be relates to the inherent risks of aviation or if any accident triggers the carrier’s liability". Hamlet and Ophelia were descending the steps from the plane when another passenger pushed past them. She fell against hamlet that in turn fell awkwardly down the remaining steps onto tarmac. He suffered a torn ligament and broken knee cap. As per, Montreal convention is concerned, the accident happened out side of the plane in the tarmac and it was unexpected and unusual to the passenger. In addition, aircraft operation is not involved with the accident in anyway nor the negligence of the employees of the aircraft. An individual is responsible for the accident that pushed Ophelia. Therefore, they will not be able to claim compensation from the airline not even for any negligence. But surely, they can claim in the local court for the compensation from the person who pushed them.

In conclusion, it is to be mentioned that Montreal convention is intended to be uniform, and exclusive. It means that when it applies, passengers will have to prove that they suffered an “accident" that caused them a bodily “injury". If they are unable to prove that they will not be entitled to get any compensation under Montreal convention. Though, hamlet and Ophelia had an accident when descending, but they will unable to prove that it happened in the right place and with the right person as mentioned before and court could not provide a remedy according to domestic rules. They could claim compensation to the person who pushed Ophelia in local law procedure not under Montreal convention or EU regulation. But certainly, they can claim for the cancellation of the flight and the expenses they spend to stay at hotel as it is under the Montreal convention.