You thought we were exclusive? Differing approaches to ‘exclusivity’ in the Montreal Convention

If you were to suffer an injury that was not caused by an ‘accident’ (within the meaning of Article 17 of the Montreal Convention), does the exclusivity of the Convention leave you high and dry? This article considers the scope and effect of the ‘exclusivity doctrine’ in the Convention, reviewing in particular the issues raised in the Advocate General’s Opinion in DB v Austrian Airlines AG (C-510/21) [2024] 1 W.L.R. 927.

Exclusivity in the Montreal Convention

Under Article 17 of the Montreal Convention, a passenger has a cause of action against a carrier in circumstances where ‘damage is sustained in case of death or bodily injury of a passenger upon condition only 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 of the Montreal Convention establishes the exclusivity doctrine, or the pre-emptive effect of the Convention (as it is often referred to in the US). It provides 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 any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable’.

This exclusivity balances the interests of passengers and carriers. As Lord Hope said in the case of Sidhu v British Airways PLC [1997] AC 430 (then referring to the Warsaw Convention, the precursor of the Montreal Convention):

‘On the one hand the [air] carrier surrenders his freedom to exclude or to limit his liability. On the other hand the passenger or other party to the contract is restricted in the claims which he can bring in an action of damages by the conditions and limits set out in the Convention. The idea that an action of damages may be brought by a passenger against the carrier outside the Convention in the cases covered by article 17 – which is the issue in the present case – seems to be entirely contrary to the system which these two articles were designed to create’.

But is the balance achieved a fair one? And is it a proper interpretation of the Convention? If it is the case that ‘one looks exclusively to the Convention and, if it affords no remedy, there is no remedy available at all’[1], is it right that a passenger who suffers an injury outside of the scope of Article 17 has no legal recourse at all?

It is perhaps because of these ongoing controversies that there remains the potential for differing approaches by the courts of contracting states as to the interpretation of Article 29.

DB v Austrian Airlines AG

In the case of DB, the CJEU had the opportunity to address the scope and effect of the exclusivity doctrine provided for by Article 29 when answering the second of two questions referred by the Oberster Gerichtshof (Austrian Supreme Court). The question was put as follows:

‘Does Article 29 of [the Montreal Convention] preclude a claim for compensation for damage caused by the administration of first aid where that claim is brought within the limitation period under national law but outside the period for bringing actions which is laid down in Article 35 of [that] convention?’.

DB was a case where a passenger, while travelling on 18 December 2016 from Tel Aviv (Israel) to Vienna (Austria) on a flight operated by Austrian Airlines, was scalded by hot coffee when a jug containing it fell from a catering trolley. They further alleged that, following the accident, they received insufficient and inadequate first aid treatment from the aircraft crew.

The claim was brought on the basis of the Austrian rules of civil liability and on 31 May 2019, more than two years after the injury was sustained. Accordingly, a claim under the Convention would have been time barred by Article 35, which extinguishes the right to damages if an action is not brought within two years of the date of arrival at the destination.

By the time DB’s claim had reached the Oberster Gerichtshof, DB had conceded that the falling jug of coffee constituted an ‘accident’ and was therefore caught by the scope of Article 17. They asserted, however, that the allegedly inadequate first aid administered following the injury was a separate and autonomous cause of damage that did not fall within the scope of Article 17.

The first question referred by the Oberster Gerichtshof was:

‘Is first aid which is administered on board an aircraft following an accident within the meaning of Article 17(1) of the [Montreal Convention] and which leads to further bodily injury to the passenger which can be distinguished from the actual consequences of the accident to be regarded, together with the triggering event, as a single accident?’.

The CJEU in the judgment delivered in DB did not take the opportunity to engage with the second question as they answered the first question in the affirmative, meaning there was no separate injury or incident whether caused by an accident or not. Advocate General Emiliou, however, did engage extensively with the second question in their Opinion.

Broad vs Narrow

At paragraphs 31 and 32 of the Opinion in DB, the Advocate General sets out what is termed the ‘broad’ and ‘narrow’ views of the exclusivity doctrine respectively. The broad view says that ‘the Montreal Convention governs exclusively all potential claims against air carriers, however pleaded, for any [damages due to] injury sustained by passengers during an international flight falling within the general scope of that convention, irrespective of its cause’. The narrow view says that the Convention governs ‘only the [claims] relating to passenger deaths or ‘bodily injuries’ caused by ‘accidents’, as envisioned in Article 17(1)’.

Under the broad view, the Convention therefore prescribes the only circumstances where a claim for damages arising out of international carriage by air can be brought. Under the narrow view, the exclusive domain of the Convention, where domestic causes of action must fear to tread, is limited to the substantive scope of the Convention. The narrow view allows the possibility that where a passenger suffers a personal injury or death that was not caused by an ‘accident’ and does not fall under the scope of Article 17 they may be able to bring a claim for personal injury under their domestic law provisions.

The Advocate General identifies the broad view as having been endorsed by the UK House of Lords and the Supreme Court of the United States in Sidhu and El Al Israel Airlines Ltd v Tseng [1999] 525 US 155 respectively. While acknowledging that, in light of the ideal of uniform interpretation of the Convention, it was appropriate for the CJEU to duly take into account decisions such as Tseng and Sidhu, the Advocate General also suggested that a cautious review of the reasoning and practical consequences of these decisions was required.

The Advocate General justified the ongoing controversy in the face of authority from two courts of final appeal on the basis that the applicable rules of interpretation, as codified in the Vienna Convention on the Law of Treaties of 23 May 1969 do not provide an unequivocal answer and the language of Article 29 neither explicitly limits the scope to injuries caused by ‘accidents’ (as required by Article 17) nor excludes domestic causes of action where no ‘accident’ has occurred.

Further, echoing some of the issues set out in this article’s introduction, in terms of the proper interpretation, the Advocate General was concerned that the object and purpose of the Convention are equivocal. It is also notable that both Tseng and Sidhu concerned the Warsaw Convention, which was intended to facilitate the development of the nascent airline industry, whereas the Montreal Convention also aimed to further consumer protection in international carriage by air. In any event, as the Advocate General says, the ‘often dire’ practical consequences of the broad view (such as the lack of remedy for those detained for three weeks by Iraqi forces in Sidhu) weigh against its adoption.

Conclusion

While the broad view of the exclusivity doctrine has an arguably global consensus and is certainly the established position as a matter of UK law after Sidhu, as the Advocate General noted in DB, authorities of other State Parties should not be accepted uncritically, and the narrow view has found favour in US cases that preceded Tseng and in some contemporary academic literature.  Indeed, the German Government and the Commission were expressly or impliedly suggesting in DB that, should the CJEU address the issue, they should depart from national precedents favouring the broad view.

There remains room for different interpretations of Article 29. If presented with circumstances where a personal injury or death suffered by a passenger was not caused by an accident within the meaning of Article 17, the CJEU may, as the Advocate General put it, “have to swallow that pill” and review again the precise scope of exclusivity in the Montreal Convention.

[1] Per Eady J in Laroche v Spirit of Adventure (UK) Limited [2008] EWHC 788 (QB) at para 28.