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Aviation - Montreal Convention

. Berenguer v. Sata Internacional - Azores Airlines, S.A.

In Berenguer v. Sata Internacional - Azores Airlines, S.A. (Fed CA, 2023) the Federal Court of Appeal considers the Montreal Convention, here on the issue of whether the Federal Court had jurisdiction [under s.23 of the Federal Court Act] to ground a statutory cause of action:
[69] The Federal Court provided another reason to strike out the amended statement of claim. It concluded that it is plain and obvious that the claim will fail because it is barred by the Montreal Convention.

[70] This issue primarily involves statutory interpretation and therefore is subject to review on the standard of correctness (TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144 at para. 30).

[71] Articles 19 and 29 of the Montreal Convention are central to this issue.
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.

Le transporteur est responsable du dommage résultant d'un retard dans le transport aérien de passagers, de bagages ou de marchandises. Cependant, le transporteur n'est pas responsable du dommage causé par un retard s'il prouve que lui, ses préposés et mandataires ont pris toutes les mesures qui pouvaient raisonnablement s'imposer pour éviter le dommage, ou qu'il leur était impossible de les prendre.

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.

Dans le transport de passagers, de bagages et de marchandises, toute action en dommages-intérêts, à quelque titre que ce soit, en vertu de la présente convention, en raison d'un contrat ou d'un acte illicite ou pour toute autre cause, ne peut être exercée que dans les conditions et limites de responsabilité prévues par la présente convention, sans préjudice de la détermination des personnes qui ont le droit d'agir et de leurs droits respectifs. Dans toute action de ce genre, on ne pourra pas obtenir de dommages-intérêts punitifs ou exemplaires ni de dommages à un titre autre que la réparation.
[72] The Federal Court determined that Articles 19 and 29 limit a claim for damages for flight delay to the actual damages incurred (reasons at para. 66). The motions judge stated that since the appellant does not allege that actual damages were sustained, the claim is barred by the Convention.

[73] At the hearing, the appellant raised several arguments in support of its view that the Montreal Convention does not bar the claim. It is likely that these issues raise sufficient doubt on the issue that it is not plain and obvious that the claim is barred.

[74] However, a decision of this Court released after the appeal was heard makes it clear that the Federal Court erred in finding that the claim was doomed to fail because of the Convention: International Air Transport Association v. Canadian Transportation Agency, 2022 FCA 211 [IATA], leave to appeal to SCC requested, file no. 40614.

[75] IATA concerns air passenger rights regulations that deal with flight delays. They came into force in 2019. The issue before the Court was whether this law is contrary to the Montreal Convention. In a decision written by de Montigny J.A., this Court determined that the Convention does not prohibit Canada from introducing laws that provide standardized compensation for flight delays.

[76] In the course of its detailed reasons, the Court considered the impact of the Convention on a claim for breach of contract relating to obligations under the regulations. The Court concluded that the claim would not run afoul of the Convention (IATA at paras. 133, 135-141).
. International Air Transport Association v. Canadian Transportation Agency

In International Air Transport Association v. Canadian Transportation Agency (Fed CA, 2022) the Federal Court of Appeal considered whether 'Ministerial Directions' under the Canada Transportation Act and related Regulations violated the Warsaw Convention, and it's successor the Montreal Convention, treaties addressing international aviation:
[4] The appellants challenge numerous provisions of the new Regulations on the basis that they exceed the Agency’s authority under the CTA. They claim that the regulations contravene Canada’s international obligations under the Convention for the Unification of Certain Rules Relating to International Carriage by Air, 12 October 1929, 137 L.N.T.S. 11 (the Warsaw Convention), its successor the Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999, 2242 U.N.T.S. 309 (the Montreal Convention), and the Carriage by Air Act, R.S.C. 1985, c. C-26 (the CAA). They also allege that many of the Regulations’ provisions are ultra vires because they have impermissible extraterritorial effects, which violate fundamental notions of international law. Finally, the appellants challenge the Minister’s Direction on the basis that it exceeds the limitations imposed by its enabling statute
. International Air Transport Association v. Canadian Transportation Agency

In International Air Transport Association v. Canadian Transportation Agency (Fed CA, 2022) the Federal Court of Appeal considers the relation between the "Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999", 2242 U.N.T.S. 309 (the Montreal Convention) and the federal Carriage By Air Act:
[80] It is no doubt true that subsection 2(2.1) of the CAA which generally incorporates the provisions of the Montreal Convention insofar as they relate to "“the rights and liabilities”" of various actors involved in air transportation, is on its face less precise than the detailed obligations and compensation provided for by section 86.11 of the CTA. Subsection 2(2.1) of the CAA is only meant to be a short hand reference to the various provisions of the Montreal Convention dealing with the rights and liabilities of carriers, passengers and other persons covered by the Convention, not a full-fledged description of these rights and liabilities. For that, one must refer to the Convention itself. And the Convention can hardly be said to be less specific than the CTA.
These quotes also contain an extensive review of the Montreal Convention [at para 93-111].

. Ace Aviation Holding Inc. v. Holden

In Ace Aviation Holding Inc. v. Holden (Div Ct, 2008) the Divisional Court heard a lost luggage claim where a second person who had property in the checked passenger's luggage also sued for the value of their loss. The case is also interesting for it's involvement of the treaty that limits passenger baggage losses:
[4] The rights and responsibilities of the Holdens and Air Canada relative to the Holdens' international flight to New York is governed by the Convention for the Unification of Certain Rules for International Carriage by Air ("the Montreal Convention, 1999") which is incorporated into the laws of Canada by the Carriage by Air Act, R.S.C. 1985, c. C-26 as amended.

[5] The relevant article for purposes of deciding the claim and this appeal is Article 22(2) of the Montreal Convention, 1999 which provides:
In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1 000 Special Drawing Rights for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger's actual interest in delivery at destination.
[6] There is no dispute that the value of 1000 Special Drawing Rights was $1,776.49 at the time of loss. ....


[21] In my view, the proper construction of the word "passenger" in the context of Article 22(2) is the one which denotes an individual who is a passenger and who has checked the piece of baggage that is lost. That construction is consonant with the purposes of the Convention and results in all of the language of the Article having meaning and internal logic. It avoids the potential for exposure to an uncertain quantum of liability and exposure to an uncertain number of claimants. There is no prejudice to the passenger as he or she is at liberty to check his or her own bag and/or make the special declaration contemplated in the Article. Accordingly, I would allow the appeal and set aside the judgment in favour of William Holden in the amount of $1,776.49.


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Last modified: 18-08-23
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