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High Court clarifies limitations on Montreal Convention claims
PRACTICE AREA GROUP: Commercial Litigation and Dispute Resolution
In a recent decision the High Court clarified the scope of the Montreal Convention(1) in terms of the claims which may be brought under it before the Irish courts. In McAuley v Aer Lingus Limited(2), the plaintiff had sought damages for slander, or alternatively negligent misstatement and/or injurious falsehood and/or intentional infliction of mental suffering and/or breach of the plaintiff's constitutional rights. The defendants claimed that the convention was the only basis on which a claim against a carrier could be advanced by a passenger and that it was limited only to personal injuries. They sought to strike out the plaintiff's claim for showing no reasonable cause of action.
The first defendant is an airline, and the other defendants were two of its employees aboard the relevant flight. At the beginning of the flight, the plaintiff asked for four alcoholic drinks to consume during the three-and-a-quarter-hour flight. The request was allegedly refused on the basis of a policy whereby only two alcoholic drinks could be provided at any one time. It was alleged that the plaintiff queried the policy and sought more alcohol on a number of occasions. On arrival at the destination in Lithuania, the second and third defendants claimed that the plaintiff had been intoxicated aboard the aircraft. They contacted the local police, who escorted the plaintiff from the aircraft before permitting him to leave. The second defendant filed a report with the local police and the incident was subsequently reported in the Lithuanian press.
The plaintiff argued that if the convention were applicable, and was the only basis on which a claim against a carrier could be advanced by a passenger, the effect would be that no cause of action could arise where an airline defames a passenger, which he suggested was anomalous. By contrast, the defendants submitted that the convention was not designed to provide remedies against the carrier to enable all losses to be compensated. Rather, they submitted, it was designed to define situations in which compensation was to be available in the interests of certainty.
Judge Hedigan considered the jurisdiction of the High Court to strike out a plaintiff's claim, noting both the applicable rules of the superior courts and the inherent jurisdiction of the court to strike out unsustainable proceedings. He noted that such an application will not succeed once the ingredients of a good cause of action are pleaded. He affirmed an earlier ruling that the jurisdiction to strike out proceedings is to be "exercised sparingly and only in clear cases".(3) In addition, for any conflicts of fact, the court must fully accept all averments on the plaintiff's behalf, even if contested.(4) He also acknowledged that the court should consider the pleadings in each particular case and determine whether a claim could properly be described as unsustainable having regard to any relevant prior rulings.(5) In the current context, Hedigan opined that a number of previous rulings were relevant to the question of whether the plaintiff's claim had no reasonable chance of succeeding. Before considering them, he looked at the relevant provisions of the convention.
Relevant provisions of Montreal Convention
Article 1.1 states: "This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft." Article 17.1 states that:
"The carrier is liable for damage sustained in the case of death or bodily injury of a passenger upon condition that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking."
Article 29 states that:
"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 addition, under Clause 15.1.2 of the first defendant's Conditions of Carriage, provided that: "Unless otherwise stated in the Conditions, international travel, as defined in the [applicable] Convention, is subject to the liability rules of the Convention."
The defendants contended that nothing in the conditions availed the plaintiff of a remedy.
Hedigan noted that, from the convention, it was clear that the liability of a carrier is limited to cases of death or bodily injury. The rationale was set out by the House of Lords in the joined cases Sidhu v British Airways plc and Sykes v British Airways plc.(6) He cited Lord Hope's speech, in which it was stated that:
"It is tempting to give way to the argument that where there is a wrong there must be remedy… however, there lies another great principle, which is freedom of contract. Any person is free, unless restrained by statute, to enter into a contract with another on the basis that his liability in damages is excluded or limited if he is in breach of contract... It is against that background, rather than a desire to provide remedies to enable all losses to be compensated, that the Convention must be judged."(7)
Hedigan went on to note, quoting Sidhu, that the convention was designed:
"to define those situations in which compensation was to be available… it set out the limits of liability and the conditions under which claims to establish that liability, if disputed, were to be made. A balance was struck, in the interests of certainty and uniformity."(8)
Hedigan further noted that the Irish courts had followed the Sidhu decision in finding that the convention set out an exclusive and exhaustive code which governs actions against carriers arising out of international carriage. He cited Justice Blayney in Smyth and Company Limited v Aer Turas Teoranta,(9) such that "the Convention contained an exclusive and exhaustive code governing such actions and excluded actions brought under common law". He also referred to a Circuit Court decision, also premised on Sidhu, to the effect that "the Convention excludes recourse to any common law remedy by a passenger", noting that "in Sidhu it was held that where the convention had not provided a remedy, no remedy was available either under common law or otherwise".(10)
Hedigan further noted the plaintiff's argument that since the defamation continued after the carriage had taken place, the provisions of the Convention did not apply. Accordingly, the question of the extent of the carriage arose. Relying on Shawcross and Beaumont on Air Law and Galvin v Aer Rianta,(11) Hedigan concluded that 'carriage', under the convention, extended to anywhere the plaintiff was required to be for the purpose of disembarking from the aircraft, which included the tarmac around the aircraft's immediate location and the airport premises. Since the actions complained of occurred on the aircraft, on the steps thereof and on the tarmac immediately adjacent thereto, Article 17 of the convention applied and could not give rise to the plaintiff's pleaded action.
This decision has confirmed that, under Irish law, for claims against a carrier in respect of international carriage, the Montreal Convention represents the exclusive basis on which any action lies. Moreover, any actions thereunder must relate to personal injury. However, the broad scope applied to the term 'carriage' has potentially serious implications for other types of non-personal injury claim against carriers.
For further information please contact Gearoid Carey.
(1) Formally, the Convention for the Unification of Certain Rules for International Carriage by Air, and the successor to the Warsaw Convention.
(2)  IEHC 89.
(3) Barry v Buckley  3 IR 206 (Justice Costello).
(4) O'Keefe v Kilcullen, unreported, High Court, June 24 1998 (Judge O'Sullivan).
(5) Lowes v Coilte Teoranta, unreported, High Court, March 13 2004 (Judge Herbert).
(6)  AC 430 (albeit they related to the Warsaw Convention, which was in similar terms).
(7) At p453.
(9) Unreported, Supreme Court, February 3 1997.
(10) Emma Nolan v Aer Lingus Group plc, Circuit Court, November 9 2009 (Judge Linnane).
(11) Unreported, High Court, October 13 1993 (Judge Barr).