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PI and Civil Litigation

Law - practice - procedure

18 OCT 2013

Air Passenger Rights versus the carrier’s defences under the Montreal Convention?

Tom Poole

Barrister

Supreme Court to determine whether EU law has primacy over Convention limits in forthcoming hearing

On 20 November 2013, the Supreme Court will determine whether a disabled airline passenger is excluded from claiming damages for breach of his EU rights by virtue of the Montreal Convention for the Unification of Certain Rules for International Carriage by Air 1999.

In 2008, Mr Stott, a permanent wheelchair user, had to endure an uncomfortable return flight from Greece. Despite being assured by Thomas Cook that he would be able to sit next to his wife so that she could assist with his personal needs, at the check-in he was informed that they would not be sitting together. When they protested, a supervisor told them that the problem would be solved at the departure gate, but at the gate they were told that other passengers had already boarded and the seat allocated could not be changed. Mr Stott was then seated in an aisle seat in front of his wife. This made it very difficult for her to assist with his personal needs during the flight and no assistance was forthcoming from the cabin crew.

At trial, the judge granted a declaration that Thomas Cook had breached Mr Stott's rights under the EC Disability Regulation, but dismissed the claim for damages by reference to the limits imposed by the Montreal Convention. The Court of Appeal upheld the decision that damages could not be awarded even though discrimination had been proved.

Left unchallenged the Court of Appeal's ruling means that after boarding a plane, disabled passengers cannot seek compensation from an airline if they are discriminated against during the flight.

Mr Stott's case has been taken up by the Equality and Human Rights Commission who will seek to persuade the five Supreme Court Justices hearing the appeal that the Montreal Convention, which covers injury, death and loss of baggage, is irrelevant to the claims of disabled travellers. In short, it will be argued that the Convention does not deal with discrimination, so should not affect disabled passengers rights. No doubt the counter argument will be that it has long been established that the Convention provides the exclusive remedy. Lord Hope made that clear in Sidhu v British Airways [1997] AC 430:

"[The Convention] was designed ... to define those situations in which compensation was to be available ... A balance was struck in the interests of certainty and uniformity ... The domestic courts are not free to provide a remedy according to their own law, because to do this would be to undermine the Convention ... It would lead to the setting alongside the Convention of an entirely different set of rules which would distort the operation of the whole scheme. I see no escape from the conclusion that, where the Convention has not provided a remedy, no remedy is available."

Accordingly, for the time being claims against air carriers arising out of air travel are determined solely by the Montreal Convention. The domestic courts are obliged to apply the Convention. The Convention provides clearly defined and limited remedies. However, this could all be set to change - practitioners should watch this space.

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