ASPECTS OF LAW FOR THE TOURIST INDUSTRY
INTRODUCTION
Montreal convention replaced the Warsaw convention of 1929, it came into effect on November 4, 2003 the 60th day after the 30th country has ratified it, on may 28, 1999 in Montreal, Canada the convention was created at an international convention convened by the international civil aviation organization (ICAO) it was signed by representatives of 52 countries [www.icao.int.] .Its purpose was to unify the rules for international carriage by air.The Montreal convention covers liability forDeath or injury to passengersDelay andBaggage (loss, damages or delay).[http://www.auc.org.uk/ default.aspx.htm].The Montreal convention prevails over any other rule which apply to international carriage by air, which have traditionally been the Warsaw Convention of 1929 and its amendments including the Hague Protocol, Montreal protocols no 1,2,3 and 4 the Guadalajara Convention and the IATA inter-carries agreement. While major portions of the Montreal convention follows the language of the Warsaw convention it makes significant changes to the scope and extend of the carriers liability ,expands the jurisdiction where the carriers can be sued and recognizes the effect of code sharing on air carries liability[HOLLAND 2003].The major purpose of the Montreal Convention was to harmonise the Warsaw convention to today’s conditions [ZURIN &YASAR 2009].The Warsaw Convention was criticised for not protecting the benefits of the airline passengers since coming into force in 1929 besides being signed by most of the states, it was also criticized because of its favorable provisions to airline companies which limit indemnifying of the victims of an accident ,these criticisms also resulted in certain customization activities ,such as the enactment of the protocols :La Haye (1955),Montreal (1971)and Guatemala(1975) nevertheless ,these protocols lead to further conflicts in the system because they were not adopted by a sufficient number of states and thus could not be effective. Airline companies of certain states have signed other agreements which define higher compensation limits than the limits of the Warsaw Convention to prevent conflict in the system [ZURIN & YASAR 2009].Most journeys stating in the United Kingdom come under the Montreal convention however some journeys may be governed by different liability regimes.
LEGAL SCOPE
MONTREAL CONVENTION
In the United Kingdom the carriage by air order 2002 implements the Montreal convention and it come into force on the day the Montreal convention came into force [http://www.legislation.gov.uk.htm].The Montreal Convention aims to protect passengers and consumers financially in case of potential accidents in air freight which take place in the signatory states. From the United Kingdom perspective this is expected to resolve the conflicts in the system created by the former agreements [ZURIN &YASAR 2009].The most notable features of the Montreal convention are;
Jurisdiction
It applies to all international carriage of person, baggage or cargo performed by aircraft for reward. It also applies to gratuitous carriage by aircraft preformed by an air transport undertaking [ZURIN &YASAR 2009].The jurisdiction of the Montreal convention would apply to Hamlet and Ophelia’s case because it’s an international flight and it falls within its scope.The carrier is liable for damages in cases of death or bodily injury of a passenger only if the accident which caused the death or injury took place on board of the aircraft or in the course of embarking or disembarking similarly, the carriage shall be liable for damages in case of destruction ,loss of ,or damages to baggage only if the event caused the destruction ,loss or damage took place on board the aircraft or in the course of embarking or disembarking or during any period within which the baggage was in charge of the carrier.
The plaintiff does not have to prove fault on the part of the defendant (carrier) for 100000 Special Drawing Rights (Special Drawing Right is an international unit of accounting defined by the International Monetary Fund –(IMF).It is commonly used in international legislation and can be converted into national currency in the same way as other foreign currencyconversation.SDR exchange rates are published in the IMF website) under article 17 and 21(1)[Regulation 261/2004 of the European union].Where damages are sought in excess of that amount, which is typical in serious personal injury claims and all wrongful death actions, the carrier is liable for unlimited damages unless it can prove that the negligent of the carrier or its agent or that of the damage was solely due to the negligence of another party see Montreal Convention Article 2 (1)[HOLLAND 2003 p. 2].The airline would have to compensate Hamlet for the bodily injury she suffered due to the actions of a third party (Leartes) provided the compensation does not amount to 100,000 Special Drawing Rights but if Hamlet wants to be compensated further he just has to prove that it was the negligence of the carrier or its agent or employee which caused the bodily injury.The convention applies for actions for damages brought, at the option of the plaintiff, in the territory of one of the state parties, either before the court of the domicile of the carries or of its principle place of business, or there it has a place of business through which the contract has been made or before the court at the place of destination [Article33 found in http://www.legislation.org.ukuksi-2002-263-schedule-1-made.htm].Connaught Laboratories Limited v British Airways, 2005 CanLII 16576(ON C.A)In this case damage was caused to four cartons of vaccines which were being carried from Toronto to Sydney, Australia through Heathrow. The cartons bore labels directing that they be kept refrigerated at between 2 and 8 degrees Celsius.
A similar direction was printed on the air waybills. At Heathrow, the cartons were not placed in a refrigerated area and, as a consequence, the vaccines were spoiled upon arrival in Sydney. The main issue in the case was whether the carrier could limit its liability to approximately $2,500 pursuant to Article 22 of the Warsaw Convention.
The Plaintiff argued that Article 25 of the Convention applied to disentitle the carrier from relying upon the Article 22 limits. Article 25 provides “The limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result”. In a thorough and well reasoned judgment, the trial Judge considered whether the test set out in Article 25 was subjective or objective. The trial Judge ultimately concluded the test was subjective and that the Plaintiff therefore had to prove not only that the carrier was reckless but also that the carrier knew damage would probably result from its recklessness.
There was, however, no evidence of why the cartons were not stored in a refrigerated area at Heathrow. The trial Judge noted that it could have been because the relevant person thought no damage would come to the vaccines if not refrigerated or because of mere inadvertence. Neither of these scenarios would meet the Article 25 test.
However, the trial Judge also noted that it could have been that the relevant person knew there was a risk of damage but simply did not want to bother storing the cargo as directed. Such conduct would meet the Article 25 test [for summary http://www.admiraltylaw.com/index/air.htm & http:/www.canlii.org/en/on/onsc/doc/2002/2002canlii4642/2002canlii/4642.html for full case].
Delay
The carrier is liable for damages occasioned by delay in the carriage by air of passenger, 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 or them to take such measures (article 19 of the Regulation).
Defenses
If the carrier proves that the damages was caused or contributed to by the negligence or other wrongful acts or omission of the person claiming compensation of the person from whom he or she derives his or her rights, the carrier can be exonerated wholly or partly from the liability to the extent that such negligent or wrongful act omission caused or contributed to the damage(article20)
Limits of liability
The right to damages arising from the Montreal convention is limited to a period of two years from the date of arrival at the destination, or from the due date of arrival of the aircraft, or from the date on which the carriage stopped (article 35), therefore Hamlet and Ophelia should make sure not to be strung along for in correspondence for a period of more than two years.The convention is generally limited by article 1 to commercial international air carriage ,including flights between two states parties to the convention or a round trips from a state party to the convention with an agreed stopping point in another state, regardless of whether that state is party to the convention under article1(2)[Countryman & McDaniel 2000].The fact that United Kingdom is a party to the convention makes the convention applicable to Hamlet and Ophelia case even if Denmark is not a party to the convention.The liability of the carries for each passengers is limited to 4150 Special Drawing Rights (article 22.1),for baggages the liability in the case of destruction ,loss ,damage or delay is limited to 1000 special drawing rights to each passenger ,in the case of cargo the liability of the carrier in case of destruction ,loss, damage or delay is limited to a sum of 17 drawing rights per kilogram and for part destruction of cargo, loss damage or delay of part of the cargo ,or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carriers liability is limited and shall only be the total weight of the package or packages concerned, nevertheless if the destruction or loss affects the value of other packages covered by the same airway bill ,or the same receipt, the total weight of such package or passengers shall also be taken into consideration in determining the limit of the liability. the air carrier should compensate Ophelia for the damage caused to his laptop by the third party because it happened during disembarking provided it doesn’t exceed 17 special drawing right per kilogram.
REQULATION 261/2004 OF THE EUROPEAN UNION
The other regime of law governing carriage by air is regulation 261/2004 of the European parliament and of the council which come into force on 4th of February 2004.The regulation establishes common rules on compensation or long delays of flights [Answers to Questionson the application of Regulation 261/2004 2008].
Jurisdiction
The regulation applies to (a)passengers departing from an airport located in the territory of a member state to which the treaty applies and (b) to passengers departing from an airport located in the territory of a member state to which the treaty applies, unless they receive benefits or compensation and were given assistance in that third country. If the operating air carrier of the flight concerned in a community carrier (article3) however the regulation does not apply to passengers traveling free of charge or a reduced fare although it applies to passengers flying under a frequent flyer programme[Answers to Questions on the application of Regulation 261/2004 2008].The regulation would apply to Hamlet and Ophelia’s case since they where departing from an airport located in the territory of a member state (United Kingdom) to which the treaty applies.
ii. Cancellation of flight
In case of a cancellation of flight, the passenger concerned is subject to bring offered assistance in accordance to article 8 and 9(1) and 9(1)( c)and they have the right to compensation amounting to euro 250 for all flights of 1500 kilometers or less, Euro 400 for all intra-community flights of more than 1500 kilometers ,and all other flights between 1500 and 3500 kilometers and 600 euro for all other flights [Answers to Questionson the application of Regulation 261/2004 2008].In determining the distance, the basis shall be the last destination at which the denial of boarding or cancellation will delay the passenger arrival after the scheduled time(article7)however the compensation can be reduced by up to 50% by the operating air carrier[regulation 261/2004].Hamlet and Ophelia should be compensated due to the cancellation of their flight as per article 7 of the regulations and there accommodation at the local hotel should be paid including their meals as per article 9 of the regulation to the EU.
iii. Delay
If an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure for two or more hours in the case of flights of 1500 kilometers or less or in the case of intra-community flights f more than 1500 kilometers and all other flights then the passengers would have a right to free meals ,refreshments, hotel accommodation if it becomes necessary ,transport between the airport and the place of accommodation and phone calls ,,telex or fax messenger or emails[Regulation 261/2004].Article 9(3) requires the operating air carrier to pay particular attention to the needs of persons with reduced mobility and persons accompanying them, as well as unaccompanied minors.
Defenses
The operating air carriers can avoid paying of the compensation if the informed the passenger of the cancellation at least two weeks before the scheduled time of departure or between two weeks and seven days before the scheduled time of departure and are offered re-routing however the passengers are sup[posed to be informed of the cancellation and explanation given concerning possible alternative transport.The operating air carrier is not obliged to pay compensation if the cancellation was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures were taken(article 5(3) however the burden of proving the question as to whether and when the passenger has been informed of the cancelation rests with the operating air carrier (article 5(4)).The operators of the new flight can avoid paying compensation to Hamlet and Ophelia if they can prove that the delay was due to unavoidable circumstances i.e. fog at the Copenhagen airport. However ,Hamlet and Ophelia will have to be compensated as per article 7(2)(a) of the regulation because their scheduled time of landing was delayed by more than two hours.As a principle of freedom of contract; nothing contained in the Montreal Convention or the regulation 261/2004 of the European Union prevents the carrier refusing to enter into any carriage contract, to waive any defenses available under the Montreal Convention, or to lay down conditions which do not conflict with the provisions of the Montreal Convention or Regulation 261/2004[ZURIN &YASAR 2009].In my opinion Hamlet and Ophelia should receive compensation for the bodily injury suffered by hamlet and the damage of Ophelia’s laptop which happened during disembarking as per the Montreal Convention. For the delay and cancellation of flights they should be reimbursed according to regulation 261/2004 of the European Union as discussed.
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