Stranded: navigating aviation delay damages under the Montreal convention.

• Author: Elfenbein, Marty Fulgueira

The 2014 year kicked off with the bone-chilling arrival of the Polar Vortex--a mass of cold air that usually resides over the Arctic and Antarctic circles. The vortex brought extreme temperatures with wind chills of -30 to -40 degrees throughout much of the Northeast and Midwest. (1) The airline industry and passengers alike felt the effects of this uncommon weather phenomenon. Not only did the Polar Vortex bring us snow and ice, but airlines were faced with the logistical problems of frozen equipment and ramp workers who were unable to work under polar conditions. The result: Airports throughout the country saw 4,000 flights canceled on January 6 with another 2,000 flights canceled the following day. (2) More than 30 percent of flights to and from Chicago's O'Hare and Midway airports were canceled with high cancellation rates also reported at Cleveland, Boston, Newark, LaGuardia, and John F. Kennedy airports. These cancellations led to frustrated passengers being stranded in airports for days while airlines attempted to rebook and accommodate passengers on flights as quickly and efficiently as possible.

The inconvenience of flight cancellations and delays resulting from the effects of the Polar Vortex affected not only the airline industry's bottom line, but also stranded thousands of passengers in airports for more than a day, incurring additional, unexpected expenses. (3) Passengers also likely experienced a sense of frustration arising from the inconvenience of flight delays, anxiety about potential missed income for those traveling for work, and anger for those missing out on valuable days of a pre-planned vacation.

With the high volume of international flights coming in and out of airports, such as O'Hare, LaGuardia, and JFK, the Polar Vortex and its consequent flight delays affected its fair share of international passengers coming into or going out of the country. For those passengers seeking any form of recourse against an airline for these delays, international law vests them with limited rights and airlines with limited liability. The Montreal Convention (4) (formally, the Convention for the Unification of Certain Rules for International Carriage by Air) is an international multilateral treaty affecting the rights of all passengers traveling internationally among its signatory countries. (5) This treaty, which entered into force on November 4, 2003, has been ratified and adopted by 104 countries, including the United States. (6) The convention governs any delay claims stranded international passengers may pursue against an airline. (7)

The Montreal Convention

This international treaty provides a comprehensive liability regime governing claims arising from international air carriage. (8) The drafters of the Montreal Convention intended for it to replace the predecessor treaties governing this area, including the 1929 Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air (commonly known as the Warsaw Convention), (9) The Hague Protocol of 1955, (10) and Montreal Protocol No. 4, (11) among others, as well as voluntary agreements among air carriers. (12) Although intended to supersede predecessor treaties, the drafters did not intend to dispose of decades of case law interpreting the prior treaties and protocols to the extent the provisions were similar or identical. (13) As the Montreal Convention has only been in effect for approximately 10 years, there is limited case law interpreting its provisions, making it "appropriate to rely on cases interpreting the Warsaw Convention where the equivalent provision of the Montreal Convention is substantively the same." (14) The pertinent delay damage provisions addressed in this article are substantively the same in both the Montreal and Warsaw conventions; therefore, this article discusses case law interpreting the relevant provisions under both treaties.

The Montreal Convention "applies to all international carriage of persons, baggage or cargo performed by aircraft for reward." (15) It defines the phrase "international carriage" as:

any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transshipment, are situated either within the territories of two State Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. (16)

Any passengers who book a flight containing an international segment either between two signatory countries, such as the United States and Spain, or a flight in and out of the United States with a layover in another country, will have his or her rights governed by the terms of the convention. This will be true regardless of whether the flight delay took place on only a domestic segment of a longer international flight, For example, if a passenger traveled from Tokyo to Chicago to Miami, but the flight cancellation occurred only for the domestic segment from Chicago to Miami and after the passenger arrived at the O'Hare airport, the Montreal Convention still governs a claim involving the delay of the domestic segment.

It should be noted that the Montreal Convention preempts all claims under local, state, or federal law, thereby mandating its application to any delay claims arising out of an international flight itinerary. Article 29 provides that any claims falling within the purview of the convention will be exclusively governed by its terms. It specifically states in pertinent part:

In carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this [c]onvention 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 [c]onvention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights ... (17)

Art. 19 explains the circumstances in which an air carrier may be liable for a passenger's delay damages. It imposes the following liability on an airline for occasioning a delay in a passenger's international air travel:

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, 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 it or them to take such measures. (18)

In a delay damage case, the initial battle between an airline and a passenger will hinge on whether an airline took all reasonable measures to avoid the delay. If the airline satisfies this standard, the passenger--no matter how much he or she incurred in out-of-pocket costs arising from the flight delays--will be left without a recourse. There are a myriad of reasons a passenger can experience a flight delay. For example, delays can be due to extreme weather, such as the Polar Vortex or a hurricane, a mechanical problem with the aircraft, the temporary closure of ramps due to lightning, or even an airline's overbooking of a flight and consequent "bumping" of a passenger. (19) So the question then becomes--what measures must an airline prove it took to absolve itself of liability for delay damages?

What Constitutes Ail Measures?

Several courts have analyzed the language within art. 19 of the Montreal Convention to determine what the drafters intended by the phrase "all measures." (20) Significantly, it has not been interpreted to mean an airline must do everything in its power to avoid the delay of a flight or its cancellation. (21) Rather, the airline must prove it took "all precautions that in sum are appropriate to the risk, i.e., measures...