International air carriage, the montreal convention and the injuries for which there is no compensation

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Andrew Field*

The New Zealand government, by adopting the 1999 Convention for the Unification of Certain Rules for International Carriage by Air (the 'Montreal Convention'), incorporated into New Zealand law the most recent international code for coverage of claims arising between passengers or cargo owners and carriers involved in international carriage by air. In so doing they removed some protections which had shielded carriers against plaintiffs' claims which dated back to when air carriage was an infant industry in need of protection from suit. However, in a cruel irony, even while the new convention was coming into force, legal proceedings in other jurisdictions were demonstrating that in some areas it was as inadequate as its predecessor, the Warsaw Convention of 1929, in that it failed to provide a remedy for all injuries suffered during international air travel; an inadequacy born of a failure to replace the seventy year old prescription for claims arising from death or injury to passengers.

I. Introduction

On 4 November 2003, the Montreal Convention1 came into force.2 This treaty, which New Zealand signed in 2001 and incorporated into its Civil Aviation Act 1990 in 2002, is the most recent in a series of international treaties going back to the Warsaw Convention3 1929 dealing with the rights and liabilities of air carriers, their passengers and the shippers and consignees of cargo carried by such carriers. Although in terms of carriage of cargo, the Montreal Convention essentially replicates the law of the most recent versions of the Warsaw Convention, it represents a substantial increase in the rights of plaintiffs claiming damages for death or personal injuries in that it removes the caps which its predecessors applied to such claims. In New Zealand, this is of significance as claims for injuries suffered during international air carriage form a class of proceedings which are permitted to be brought under New Zealand's no fault compensation scheme, even if such compensation would also be allowed under the scheme.4

However, despite its recent development, a series of recent decisions from senior courts in other jurisdictions around the world have indicated that in relation to some claims for personal injuries, the Montreal Convention is still very much tied down by the language of its predecessors. Although dealing with claims under the Warsaw Convention, those decisions indicated that not only does the new Montreal Convention not cover what have been described as 'mental injuries', but it also does not cover injuries caused by Deep Vein Thrombosis, or 'DVT', a disease so closely associated with air travel that it is often referred to as 'economy class syndrome'.5 In the common law jurisdictions in which these cases were decided, these decisions no doubt caused much consternation, if only because had the common law applied, a claim founded on negligence might have been successful. Conversely, in New Zealand, these decisions are important both for this reason, and also because they would very likely fall through the cracks in the no fault compensation scheme. These cases indicate that although the legislature in New Zealand has done its best by its population in adopting the Montreal Convention, it is still an international agreement subject to the limitations inherent in achieving compromise among a world of nations, and still has scope for improvement. It is also subject to a desire for international consistency in the interpretation of treaties, meaning that New Zealand's courts will take heed of what these foreign courts have said. Thus, until such improvement occurs in the text of the treaty, many injured air travelers will be without a remedy. Certainly in countries of the South Pacific - countries which are only reached via long haul air travel - such news is of some concern. And yet, it appears to be the prevailing state of the law.

In explaining this situation, this article sets out to do the following: Firstly, explain the development and application of the international regime covering carriage by air under the Warsaw Convention. Secondly, identify the key innovations introduced by the Montreal Convention. Thirdly, explain how the Montreal Convention has failed to reform the flaws in the Warsaw provisions relating to personal injuries. And finally, explain the decisions which highlight the restrictions of personal injuries claims under the Conventions.

II. New Zealand and the Warsaw Convention

New Zealand's era of international air travel commenced with the flight of Sir Charles Kingsford-Smith from Sydney, Australia to Christchurch in September 1928. However, almost from that moment the dangers associated with such travel were apparent - Kingford-Smith's instruments iced up during the flight and his aircraft almost crashed into the Tasman Sea.6 In reflecting a recognition by many national governments of such dangers to life, limb and property inherent in air travel, the Warsaw Convention was formulated by the following year, to regulate the claims which could be made against carriers. This initial version of the Convention was ratified and incorporated into New Zealand law in July 1937.7 To remedy certain initial oversights, and to update where necessary, many subsequent treaties amended the Convention. Those adopted by New Zealand and now included in the Civil Aviation Act include the Hague Protocol of 1955, the Guadalajara Convention of 1961 and the additional Protocols 1, 2 and 4 made at Montreal in 1975. However, at the same time, although amended versions of the convention were adopted by New Zealand and other signatories, the earlier and unamended versions were not repudiated.8 This course of action was necessitated by reason of Article 1 of all versions of the Warsaw Convention which applies the treaty to 'international carriage', defined to mean carriage where the place of departure and the place of destination are either in the territory of the one 'High Contracting Party' with a stopping place in another state, or in the territories of two 'High Contracting Parties' to the convention. This has been held to mean the same version of the convention.9

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