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Montreal Convention, which superseded the original convention and sought to fix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.
[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).
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