Montreal Convention

What is the 1999 Montreal Convention?

The Montreal Convention is a multinational treaty that governs international air travel. Ratified in 1999 and enacted in 2003, the Montreal Convention was written as a successor to the Warsaw Convention of 1929. It maintains much of the substance of the earlier convention but also amends and modernizes many provisions.

One of the major amendments is increasing the compensatory damage limits in cases of third-party negligence.

What is the Purpose of the Montreal Convention?

There is one other main difference. Like the Warsaw Convention, the Montreal Convention removes the recovery limits in cases where the airline is guilty of willful misconduct, but, instead of placing the burden on the plaintiff to prove the airline’s guilt, it requires the defendant to prove it was not negligent. This provision stemmed from what was called the Japanese Initiative. A few years prior to the ratification of the treaty, a group of Japanese airlines decided to reject the liability limits of the Warsaw Convention and pledged to fully compensate all families unless they were not completely at fault. Eventually, this initiative was adopted by several more airlines and codified in the Montreal Convention.

The treaty keeps the four jurisdiction choices of the Warsaw Conventions and creates the fifth jurisdiction to provide an additional forum in which plaintiffs can bring a claim. That jurisdiction is based on where the passenger has his or her principal and permanent residence as long as the airline also flies to and from that location.

To learn more about air travel injuries and the Montreal Convention visit our Passenger Injury practice area page.

Partner Erin Applebaum on the Montreal Convention

Benefits of the Montreal Convention include:

• The new convention eliminates the meager and arbitrary limits of liability applicable under the Warsaw Convention when passengers are killed or injured in international air carrier accidents. These limits applied in all cases, except where the harm was due to the carrier’s willful misconduct. 

• Under the convention, in almost every case, American survivors of international aircraft accidents and the families of American accident victims will have access to U.S. courts in seeking damages for the losses they suffered. 

• The convention requires air carriers to make payments of up to approximately $141,000 of proven damages on behalf of accident victims, without regard to whether the airline was negligent.

• An escalation clause provides that monetary limits and thresholds that survive in the convention will be adjusted for inflation. 

• Provisions on code sharing and similar arrangements clarify that when the airline operating a flight is not the airline from which the transportation was purchased, a passenger may recover from either the airline operating the aircraft at the time of the accident or the airline whose code is carried on the passenger’s ticket.

• The convention furthers U.S. efforts to ensure that U.S. air cargo carriers and shippers can take advantage of technological innovations now available to facilitate and expedite the processing of international air cargo. 

• The convention simplifies litigation and promotes fairness through the passenger benefits described above, including eliminating all arbitrary limits on compensatory damages for passenger death and injury claims, among others, and by barring non-compensatory damages in all cases, consistent with existing law; and by establishing, in clear language, its exclusivity in the area of claims for damages arising in the international transportation of passengers, baggage and cargo. 

• While the convention provides essential improvements upon the Warsaw Convention in many respects to improve the rights of passengers, it also preserves established law relating to other aspects of the Warsaw Convention that were acceptable to avoid unnecessary litigation. For example, the convention preserves the status quo relative to legal actions against airline employees (Articles 30, 43). Consistent with existing law in the United States, the Montreal Convention extends to a carrier’s employees acting within the scope of their employment all of the “conditions and limits of liability” available to the carrier under the convention — referring to the monetary limits set out in Articles 21 and 22 of the convention and the conditions under which those monetary limits may be exceeded.

Considerations of the Montreal Convention for your case

In addition to determining if you have a valid claim under the Montreal Convention based on when the accident occurred, another consideration is determining if both countries involved are signatories to the treaty, as the Montreal Convention only applies to countries that are signatories. In cases where a country has not signed on, the Warsaw Convention may still apply.

The Foreign Sovereign Immunities Act 

The Foreign Sovereign Immunities Act (FSIA) is part of the Montreal Convention jurisdiction that applies to state-owned air carriers. When an air carrier is owned by the state, they are subject to different rules than carriers who are privately owned. Alitalia, Ethiopian Airlines, Qatar Airways and Emirates are some of the air carriers that are state-owned. FSIA allows jurisdiction over cases based on commercial activity carried on in the United States by a foreign state. Typically foreign countries have sovereign immunity meaning they can’t be sued unless a specific exception is met. The exception with the Montreal Convention is the commercial activity exception. In order to obtain an air carrier permit the state must waive sovereign immunity, leaving them open to being sued in a bench trial.

Kreindler and the Montreal Convention

No law firm in the world has more experience litigating cases involving the Montreal and Warsaw Conventions (which govern international air accident litigation) than Kreindler. These conventions have specific time limits (different from the statutes of limitations governing other personal injury and wrongful death claims based on state or federal laws) as well as other distinctive provisions that can significantly affect the injured party’s interests.

Kreindler partner Erin Applebaum focuses her practice on seeking justice for passengers injured during the course of air travel with a particular focus on international travel governed by the Montreal Convention cases.