PREEMPTION OF LOCAL OR STATE LAW BY THE MONTREAL CONVENTION IN AVIATION LITIGATION IN NIGERIA

Abstract:

The Montreal Convention, the treaty that regulates international air travel, completely preempts state law causes of action in contracts of air transportation. However, it is a common practice in Nigeria for plaintiff passengers to assert causes of action that arise under local or state law in causes of action founded upon air travel. This practice is, to some extent, encouraged by the law Courts who often times resort to applying principles of domestic/common law to allow remedies not permitted by the Convention. The article examined the evolution and present state of the law governing the preemption of passenger claims for compensation for harm arising from air travel under the Montreal Convention as applicable to Nigeria.

Introduction:

It is a common practice in Nigeria for aggrieved passengers to sue airlines for alleged damages sustained during air travel but allege a cause of action founded upon principles of domestic/common law of contract or tort and this practice is not helped by the Courts who most often times hide under the principle of ubi jus ubi remedium[1] to allow this anomaly. Claims arising from air travel in Nigeria are completely regulated by an international treaty, the Montreal Convention.[2] By virtue of the provisions of the Convention, a passenger is not allowed to assert causes of action that lies outside of the Convention as the Convention provides the exclusive mechanism for recovery for injuries or other damages that arise during air travel. This article highlights the legal consequence for Nigeria in signing the Montreal Convention and the implication for air travelers in asserting their rights against airlines in Nigeria.

What is the Montreal Convention?

According to West (2016),[3] the Warsaw Convention[4] was passed in 1929 to protect the young airline industry from liability levels that could threaten its viability. Ultimately, these goals went unmet as numerous amendments stripped the Convention of its uniformity and easy applicability. To fix this confusion, the signatories to the Warsaw Convention met in 1999 and created the Montreal Convention, which superseded the original convention and sought to fix these issues.  The Montreal Convention thus unifies all of the different international treaty regimes covering airline liability that had developed haphazardly since 1929. It excludes national rules in favour of a unified international legal regime. Uniformity requires that passengers be denied access to the profusion of remedies that may exist under the laws of a particular country in preference for the convention.

The Montreal Convention is adopted into Nigerian law by Section 50 of the Civil Aviation Act[5] wherein it is provided as follows:

“The provisions contained in the Convention for the Unification of Certain Rules Relating to international Carriage by Air signed at Montreal on 28th May, 1999. as has been modified and Set out in the Third Schedule of this Act and as amended from time to time, shall from commencement of this Act have force of law and apply to international/non‐international carriage by air within Nigeria, irrespective of the nationality of the aircraft performing the carriage and shall subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.”

From the date of commencement of the Act, the Montreal Convention became the basis for establishing an airline’s liability for both international and non-international air travel in Nigeria. By the said act of ratification (and consequently the adoption of its provisions), in so far as it entails consent of Nigeria to be bound, ipso facto reflects the current preferences of Nigeria at the time of ratification that the Convention be the only basis for air travelers in Nigeria to vindicate their rights and this cannot be amended by a law Court by applying domestic/common law doctrines.

Preemption under the Montreal Convention:

As stated above, the Convention excludes national rules in favour of a unified international legal regime. To that end, it contains a clause (Article 29) which preempts the application of national or other local rules that might otherwise have been applicable in the absence of the Convention. This preemptive effect is a fundamental aspect of the legal regime established by the Convention and reflected in the title of the Convention as a convention for the unification of certain rules for international carriage by air. Challenging that preemptive effect therefore goes to the root of what the Convention is about and is an anathema. Preemption under the Montreal Convention is governed by its Article 29, “Basis of Claims,” which states: 

“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 the suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.”

The implication of the preemptive nature of the Convention is that for a plaintiff to find a cause of action in a contract of carriage by air, there must be a remedy for a perceived grievance under any of its provisions and not outside of it. If a remedy cannot be asserted under the Convention, then the plaintiff has no other remedy. The case law that governs the recoverability of damages under the Convention was first espoused in the landmark decision of El Al Israel Airlines v. Tseng,[6] where the United States Supreme Court determined that the Warsaw Convention (the predecessor to the Montreal Convention) provided the exclusive remedy for any claims falling within its scope. The Court found that “[R]ecovery for a personal injury suffered ‘on board an aircraft or in the course of any of the operations of embarking or disembarking,’ if not allowed under the Convention, is not available at all.” In so finding, the Court interpreted Article 24 of the Warsaw Convention, as clarified by Montreal Protocol No. 4, as precluding a passenger from stating any air transit personal injury claims under “local” law. 

Since that time, the holding in Tseng has been expanded to a number of cases interpreting similar provisions involved with the Montreal Convention. For example, in Nobre v. American Airlines,[7] the Court held the Montreal Convention is the “exclusive mechanism for recovery for personal injuries suffered on board an aircraft or in the course of embarking or disembarking from an airplane. The Court noted that, if a claim falls within the reach of the Convention, it must be brought under its terms or not at all. In other words, a Court must be wary in entertaining claims that alleges state-court causes of action. If plaintiff is asserting causes of action that arise under local or state law, the action is prohibited by the Montreal Convention and plaintiff should be precluded from recovery for same. Furthermore, the House of Lords in Abnett v British Airways Plc; Sidhu v British Airways Plc[8] also reiterated the exclusivity rule thus:

“The Convention is, of course, tightly drawn on these matters. This has been done in the interests of the carrier, whose exposure to these liabilities without the freedom to contract out of them was a principal consequence of the system which it laid down. Were remedies outside the Convention to become available, it would encourage litigation in other cases to restrict its application still further in the hope of obtaining a better remedy, against which the carrier would have no protection under the contract. I am in no doubt that the Convention was designed to eliminate these difficulties. I see no escape from the conclusion that, where the Convention has not provided a remedy, no remedy is available.”

The Montreal Convention by its nature, in fact, also overrides constitutional guarantees of fundamental rights. Thus in King v American Airlines,[9] a passenger was denied boarding allegedly based on racial discrimination. The claim was preempted in favour of the Convention as a remedy could not be found under it. In Thibodeau v Air Canada,[10] a passengers’ claim of denial of the right for cabin announcements in the flight to be made in the two official languages of Canada, viz. English or French as provided for under the Canadian Official Languages Act (OLA) was preempted by the Court on the ground that the Montreal Convention precluded any claim to damages other than those provided for in the Convention by a passenger against a carrier in relation to events on board on aircraft or during embarkation or disembarkation. Also, in Stott v Thomas Cook Tour Operators Ltd,[11] which concerned a serious failure by an airline to make sufficient arrangement to provide for the needs of a disabled passenger, in breach of EU legislation on the rights of disabled passengers and its UK implementing measures, the UK Supreme Court held that the Convention would preempt any claim by a passenger towards an airline regarding damage caused on board, regardless of the basis for the claim if the same is not covered by it.

Thus the protective envelope shielding airlines from legal duties towards their passengers is not limited to ordinary contract and tort matters but can result in passengers being stripped of the fundamental rights they would normally be able to invoke in any other context than that of air transport. In a nutshell, in any law suit pertaining to performance or enforcement of a contract of air transportation in Nigeria, a party cannot resort to the domestic/common law principles of contract/tort in finding a cause of action for a perceived grievance nor can a Court entertain such actions by purporting to apply domestic/common law doctrines. This is because the only rights and obligations of the parties are those provided for under the Convention and not outside of it. This point was well reiterated by the Supreme Court in Harka Air Services Ltd. v Keazor[12] thus:

“The law is that where a domestic/common law right has been enacted into a statutory provision, it is to the statutory provision that resort must be had for such right and not the domestic/common law. Hence an air passenger is not at liberty to choose as between the provisions of the Convention and the domestic/common law for claims for damages against the carrier. Such claims have to be asserted only in accordance with and subject to the terms and conditions of the Convention and cannot be pursued under any other law.”[13]

Conclusion:

The underlying effect of the Montreal Convention is that it is preemptive of claims arising under national laws in contracts of air transportation. The implication is that an aggrieved passenger cannot go outside of the Convention to find a remedy for cause of action founded upon air travel. The exclusivity rule of the Convention functions as a device to protect airlines from unwarranted liability to consumers. It reflects the current preferences of states that are parties to the Convention as to how to balance consumer interests and industry interests in the field of air transport. In other words, our Courts should discountenance law suits arising from air travel but seeking remedies outside of the Convention.

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[1] A Latin legal maxim that translates to "where there is a right, there is a remedy."

[2] Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 28 May 1999) (Montreal Convention).

[3] West, A. (2016), ‘Defining “Accidents” in the Air: Why Tort Law Principles Are Essential to Interpret the Montreal Convention’s “Accident” Requirement’ Fordham Law Review Vol. 18, Issue 3, Art. 18.

[4] Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929 (Warsaw Convention).

[5] Laws of the Federation of Nigeria, 2022.

[6] 525 U.S. 155 (1999).

[7] 2009 WL 5125976 (S.D. Fla. Dec. 21, 2009).

[8] [1997] 1 All E.R. 193.

[9] 284 F 3d 352.

[10] 284 F 3d 352.

[11] [2014] UKSC 15.

[12] [2011] All FWLR (Pt.591) 1402).

[13] See also Emirate Airline v. Tochukwu Aforka & Anor. (2014) LPELR-22686(CA). 

THE INTERPRETATION OF “ACCIDENT” IN ARTICLE 17 OF THE MONTREAL CONVENTION AND THE EFFECT ON AIRLINES LIABILITY FOR INJURIES SUSTAINED ON COMMERCIAL FLIGHTS

 

Abstract:

Article 17 of both the Warsaw Convention and the Montreal Convention combine to hold airlines absolutely liable for any accident in which a passenger suffers death or injury if the “accident” occurs on board an aircraft or while the passenger is “in the course of any of the operations of embarking or disembarking.” Both conventions however do not offer a definition of “accident” in their respective treaties thereby leading to a lack of uniformity by Courts in defining it. The article focused on the adopted meaning of “accident” in both conventions by the courts globally and its consequence on airlines liability.

Introduction:

Discussions about contracts of carriage by air often raise questions about the issue of airlines liability for injuries sustained by passengers during carriage by air. Article 17 of both the Warsaw Convention[1] and the Montreal Convention[2] combine to hold airlines absolutely liable for any accident in which a passenger suffers death or injury if the “accident” occurs on board an aircraft or while the passenger is “in the course of any of the operations of embarking or disembarking.” The Montreal Convention is adopted into Nigerian law by Section 50 of the Civil Aviation Act[3] and from the date of commencement of the Act, the Montreal Convention became the basis for establishing an airline’s liability for both international and non-international carriage on flights in Nigeria. The underlying effect of the Montreal Convention is that it is preemptive of claims arising under national laws in contracts of air transportation in Nigeria. The implication being that an aggrieved passenger cannot go outside of the Convention to find a cause of action in an aviation claim.[4] This essay will thus examine the disparate meaning of “accident” in both conventions and its consequence on airlines liability.

What is an “Accident”?

The interpretation of the term “accident” in Article 17 of both the Warsaw Convention and Montreal Convention has presented some difficulties traceable to the failure of the drafters of both Conventions to define the term in the respective treaties. The absence of definition has led to lack of uniformity in the definition of “accident” by the Courts. However, many Courts follow the lead of the United States’ Supreme Court in Air France v. Saks[5] where the term “accident” was construed to refer to an “unexpected or unusual event or happening that is external to the passenger,” and not to “the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.” In that case, the court explained that “any injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger.”  Consequently, this has become the established and universally accepted definition of “accident” of Article 17 and, subsequently, adopted and followed by the courts in other state parties to the Montreal Convention.

Article 17 holds airlines only liable for “accidents”, meaning not all injuries occurring on a flight will result in a violation of both conventions. Article 17 refers to an accident which caused the passenger's injury, and not to an accident which is the passenger's injury. The text thus implies that, however "accident" is defined, it is the cause of the injury that must satisfy the definition, rather than the occurrence of the injury alone. Furthermore, the injury must have been sustained during the normal operations of the aircraft and the knowledge or complicity of the crew members in the events surrounding the alleged accident that led to the injury must be established.[6] Thus the voluntary act of a person other than the passenger which cause harm to the passenger is the critical factor in determining whether the injury was an “accident” within the definition of Article 17. The causation event must be external to the passenger to ground a cause of action.[7]

An “accident” under Article 17 must arise from “such risks that are characteristic of air travel” thus where the putative injuries were caused by torts committed by fellow passengers and not related to the operation of the aircraft it will not apply. For instance, in Beverley Anne Barclay v British Airways PLC,[8] an injury sustained from a hot coffee spillage by a crew member – an event, unexpected by the passenger, and arising from a source external to the Claimant, was held to meet the definition of ‘accident’[9] while in Mansoor v. Air France KLM Airlines,[10] Plaintiff passenger sued airline after tripping and falling while onboard the aircraft.[11] The court held this to be an “accident” because Plaintiff “tripped and fell as a result of a hazard in the walkway onboard the aircraft” whereas in Stone v. Continental Airlines, Inc.,[12] the Court held that an injury caused by being punched without provocation by another passenger is not an accident because it was not “derived from air travel”. Also in Price v. British Airways,[13] injury caused by a fistfight between two passengers was held not be an “accident” because “a fracas is not a characteristic risk of air travel nor may carriers easily guard against such a risk through the employment of protective security measures.” However, in other instances of fisticuffs the airline has been found liable because they served alcoholic beverages.[14] In other words, an assault by a fellow passenger would not constitute an Article 17 accident absent some causal role of airline personnel. It must be shown that the crew had a “practical ability to influence” the circumstances which brought about the injury causing event. The onus is on the passenger to establish that the “event or happening” was clearly related to aviation operations as non-aviation related causes are not relevant. Aviation operations are as articulated in Fulop v. Malev Hungarian Airlines, Inc.[15] i.e.:

·         the normal operations of the aircraft;

·      the knowledge or complicity of the crew members in the events surrounding the alleged accident;

·         the acts of fellow passengers whether intentional or not;

·         the acts of third persons who are not crew or passengers, e.g., hijackers and terrorists;

·         the location of the occurrence in the continuum of the air travel;

·         the role, condition and reaction of the complainant in connection with the occurrence at issue and;

·         the kinds of risks inherent in air travel.

Bodily Injury:

An airline cannot be liable under Article 17 when an “accident has not caused the passenger to suffer death, physical injury or manifestation of physical injury.”[16] Article 17 also precludes compensation for psychological injuries caused by such an accident, where they are not linked to any bodily injury. In Jack v Trans World Airlines Inc.,[17] the Court held that the "mental injury must be proximate and flow from the physical injury caused by the accident." Likewise, the House of Lords in Morris v KLM,[18] while agreeing that the passengers can only recover damages for physical injuries, held that if the mental injury causes adverse physical symptoms such as stroke, miscarriages or peptic ulcers, then the threshold of the requirement of physical injuries must have been satisfied. Thus according to the House of Lord’s decision, it suggests that passengers can only recover damages for mental or emotional injuries provided they manifest in physical injuries.

For clarity, in order to recover damages for injury sustained aboard an aircraft against the carrier, a passenger must establish that:

·         an accident occurred;

·         that he suffered death or bodily injury;

·         that the accident occurred on board the aircraft when it was in operation or in the process of embarking or disembarking; and

·         that the airline could have taken steps to avoid the accident but was negligent or acted with reckless indifference.

These ingredients must be established before liability can be established against a carrier in a claim for personal injury failing which a claim must fail. In a nutshell, the modern damages format of the Montreal Convention predicates carrier liability solely on the occurrence of an accident within the meaning of Article 17 of the Montreal Convention.[19]

Conclusion:

Liability for injury sustained on a flight arises for the aircraft carrier only in the circumstances set out in Article 17 of the Montreal Convention and the presumption of liability therein does not rest upon a mere “occurrence” of an injury; rather, the passenger's injury must be caused by an “accident” and it must result from a bodily injury occurring on board the aircraft when it was in operation or in the process of embarking or disembarking. Anything short of this will not suffice for an aviation claim. A Plaintiff will fail if it fails to establish that an injury was not the result of anything unusual or abnormal with respect to the operation or condition of the aircraft and if it is not a bodily injury.

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[1] Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929 (Warsaw Convention).

[2] Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, 28 May 1999) (Montreal Convention)

[3] Laws of the Federation of Nigeria, 2022.

[4] See: Emirate Airline v. Tochukwu Aforka & Anor. (2014) LPELR-22686(CA); Harka Air Services Ltd. v. Keazor [2011] All FWLR (Pt.591) 1402).

[5] 470 U.S. 392 (1985).

[6] Fulop v Malev Hungarian Airlines, Inc., 175 F. SUPP. 651 (SDNY 2001).

[7] See the decision of the UK Court of Appeal in the case: In re Deep Vein Thrombosis and Air Travel Group Litigation [2004] QB 234 where it was held that, for the accident, there must be the external event with the adverse effect on the passenger.

[8] [2008] EWCA Civ 1419.

[9] A slip and fall on snow covered airline steps in Carmelo Labbadia -v- Alitalia (Societa Aerea Italiana S.p.A) [2019] EWHC 2103 (QB) was held to constitute an accident within the meaning of Article 17 of the Montreal Convention 1999.

[10] (S.D. Cal. 2008) 2008 WL 4748166.

[11] In Balani v Lufthansa German. Airlines Corp., 2010 ONSC 3003, the judge found that the carrier’s failure to provide a wheelchair, an event that occurred on board or in the course of disembarking, formed a link in the chain of causation of the passenger’s injuries later sustained in the terminal, and was therefore an Article 17 accident.

[12] 905 F. Supp. 823 (D. Haw. 1995)

[13] 91 Civ. 4947 (JFK), (S.D.N.Y. Jul. 6, 1992)

[14] Langadinos v. American Airlines, Inc. (1st Cir. 2000) 199 F.3d 68

[15] 175 F. Supp. 651 (SDNY 2001).

[16] Eastern Airlines v Floyd 499 US 530 (1991).

[17] 854 F Supp. 654 (ND Cal. 1994).

[18] [2000] UKHL 7.

[19] Wallace v. Korean Air (2d Cir. 2000) 214 F.3d 293, 297.