International air transport has a complex legal framework in which the Montreal Convention plays a fundamental role. Adopted on 28 May 1999 and brought into force in 2003, this convention is now the reference text governing the liability of international air carriers. It provides a balanced system of protection between the interests of passengers and those of airlines. Our firm regularly observes that passengers are still unaware of the rights granted by this major text, sometimes leaving them without adequate compensation.
Genesis and objectives of the 1999 Montreal Convention
The history of international air law is marked by a gradual evolution towards better protection for users, while maintaining an economic balance for the aviation industry.
Unification of the rules of the Warsaw Convention and its amendments
The Montreal Convention did not emerge ex nihilo, but represents the culmination of a long process of legal development. The Warsaw Convention of 1929 was the founding text, but its application had become particularly complex due to its many amending protocols (The Hague in 1955, Guatemala in 1971, Montreal in 1975).
As the preamble to the Montreal Convention explains, it had become urgent to "modernise and recast the Warsaw Convention and related instruments". This multiplicity of texts created legal uncertainty for all those involved in air transport. A passenger who was the victim of an accident first had to determine which version of the Warsaw Convention applied to his or her flight, depending on the countries concerned and the protocols that each had ratified.
Modernising and strengthening user protection
The main objective of the Montreal Convention is clearly stated in its preamble: "to ensure the protection of the interests of consumers in international air transport". This marks a significant departure from the Warsaw Convention, which was initially designed to protect a fledgling industry.
The 1999 Convention introduces substantial improvements for users, including a more favourable compensation scheme in the event of personal injury and strict liability for the carrier up to a certain threshold. It also recognises the importance of "equity in the distribution of risks" inherent in modern air transport.
In an important decision, the Court of Justice of the European Union (CJEU, 6 May 2010, aff. C-63/09) emphasised that this convention aims to establish "an equitable liability regime based on the principle of reparation".
Scope of the Montreal Convention
Understanding exactly when the Convention applies is essential to determining whether you can benefit from its protection.
The criterion of international transport between States parties
Article 1 of the Montreal Convention applies to "any international carriage of persons, baggage or cargo by aircraft for remuneration". But this general definition is qualified by strict cumulative criteria.
For a carriage to be considered "international" within the meaning of the Convention, the point of departure and the point of destination must be :
- Either on the territory of two different States Parties
- on the territory of the same State party, provided that a stopover is scheduled on the territory of another State (even one not party to the Convention), or
For example, a flight from Paris to New York is covered by the Convention, since both France and the United States are parties to the treaty. On the other hand, a flight from Paris to Nice remains subject to French domestic law, unless it includes a stopover abroad.
Today, over 130 countries have ratified the Convention, making its application virtually universal. For more information, visit an overview of passenger rightsFor more information, see our dedicated article.
Concept of contractual carrier and de facto carrier
The Convention distinguishes between two types of carrier whose liability may be incurred:
The contracting carrier is the one with whom the passenger or shipper has concluded the contract of carriage. This is generally the company that issues the ticket.
The de facto carrier is the one who actually carries out the transport, in whole or in part. This may be another company under a code-share, charter or franchise arrangement.
Article 40 of the Convention specifies that these two carriers may be held jointly and severally liable. This distinction is particularly important in a context where alliances between airlines are multiplying, and where passengers often book with one airline but travel with another.
Specific exclusions (postal transport)
Certain types of carriage are expressly excluded from the scope of the Convention. This is particularly the case with postal transport, as article 2 states: "In the carriage of mail, the carrier shall be liable only to the competent postal administration".
This exclusion is justified by the existence of specific regimes for international mail, mainly those of the Universal Postal Union (UPU).
Carrier liability for damage to passengers
Passenger protection is one of the major innovations of the Montreal Convention compared with the previous system.
The two-tier liability system for personal injury (death or injury)
The major innovation of the Montreal Convention is the introduction of a two-tier system of liability in the event of the death or bodily injury of a passenger. This mechanism, provided for in Article 21, represents a compromise between the protection of victims and the economic interests of carriers.
The French Court of Cassation, in a ruling dated 15 January 2014 (no. 11-21.394), validated this principle of two-tier liability by confirming that "the carrier cannot exonerate itself from its strict liability within the limit of the first tier of compensation".
The first level: objective liability up to 128,821 SDRs (Special Drawing Rights)
For damage not exceeding 128,821 SDRs per passenger (approximately 155,000 euros), the carrier is subject to strict liability. This means that the carrier cannot exclude or limit its liability, even if it proves that it was not at fault.
This amount, initially set at 100,000 SDRs, is revised periodically by the International Civil Aviation Organization (ICAO). The last revision took place in 2019.
Only the fault of the victim can reduce or exclude the carrier's liability at this first level, as set out in article 20 of the Convention.
The second level: liability for presumed fault above the threshold
Above the threshold of 128,821 SDRs, the carrier's liability remains unlimited in principle, but it may be exonerated if it can prove :
- That the damage was not caused by its negligence or that of its servants or agents
- Or that the damage results solely from the negligence or act of a third party
This provision corresponds to presumed fault liability: it is up to the carrier to prove that it was not at fault, and not up to the victim to prove fault.
Possible means of exoneration for the carrier
In addition to the means of exoneration specific to the second level of compensation, article 20 of the Convention provides for a general case of total or partial exoneration: when the carrier proves that "the negligence or other wrongful act or omission of the person claiming compensation" caused or contributed to the damage.
The application of this article is still strictly regulated by the courts. The case law of the CJEU (judgment of 2 June 2022, case C-589/20) has specified that the carrier must provide concrete proof of the passenger's negligence, and not be content with general allegations.
If you are the victim of an air accident, we recommend that you contact our assistance in the event of an air dispute to maximise your chances of obtaining adequate compensation.
The carrier's liability for delay
Delays are a frequent source of disputes in air transport, and the Montreal Convention establishes a precise framework for compensation.
Damage resulting from delays in the carriage of passengers, baggage or goods
Article 19 of the Convention lays down the principle that the carrier is liable for damage resulting from delay in the carriage of passengers, luggage or goods. This provision does not define precisely what constitutes a "delay", leaving that to the national courts.
Case law has generally considered this to be a significant delay in relation to the initially scheduled arrival time. It should be noted that this liability for delay is distinct from the system of flat-rate compensation provided for in European Regulation no. 261/2004, which may apply cumulatively for flights to or from the European Union.
Specific compensation ceilings for delays
The carrier's liability in the event of delay is limited to amounts lower than those provided for personal injury:
- 5,346 SDRs per passenger (around €6,500)
- 1,288 SDR per passenger for baggage (approximately €1,550)
- 22 SDRs per kilogram for goods (around €26)
These ceilings are set out in Article 22 of the Convention. However, they do not apply in cases of intentional or inexcusable fault on the part of the carrier, as the Court of Cassation has ruled (Civ. 1re, 13 March 2013, no. 09-72.962).
For questions relating to liability for goodsFor more information, please consult our detailed article on this subject.
Exemption if the carrier proves that it took all reasonable measures
Unlike the regime applicable to personal injury, the carrier may be exonerated from liability for delay if it proves "that it, its servants and agents took all measures that could reasonably be required to avoid the damage, or that it was impossible for them to take such measures" (art. 19).
This exemption is interpreted strictly. In a ruling dated 13 March 2013, the Cour de cassation held that "force majeure external to the carrier could only constitute one of the elements enabling the carrier to prove that it had taken all reasonable measures" and did not in itself constitute a cause for automatic exoneration.
Exceptional weather conditions, air traffic control strikes or certain unforeseeable technical problems have been recognised as justifying an exemption, but the carrier must demonstrate that it has done everything possible to limit the consequences of these events for passengers.
Transport documents and their requirements
The Convention precisely defines the documents that must be issued during air transport and the information they must contain.
Passenger ticket, baggage check, air waybill
Article 3 of the Convention stipulates that an individual or collective ticket must be issued for the carriage of passengers. This document must indicate the points of departure and destination, as well as the scheduled stopovers if these points are in the same State Party.
For checked baggage, an identification card must be given to the passenger (art. 3§3). The carriage of goods must be recorded by an air waybill (AWB) or, with the consent of the consignor, by any other means that retains information relating to the carriage (art. 4).
The Convention has modernised these requirements by taking into account the progressive dematerialisation of transport documents. It expressly recognises the validity of electronic documents, which is a significant advance on the Warsaw Convention system.
Consequences of missing or irregular documents
Another major development concerning transport documents is the consequences of their absence or irregularity. Unlike the Warsaw Convention, which punished such failures by forfeiting the right to limitation of liability, the Montreal Convention adopts a more pragmatic approach.
Article 3§5 states that failure to comply with the provisions relating to transport documents "shall not affect the existence or validity of the contract of carriage, which shall nevertheless be subject to the rules of this Convention, including those relating to limitation of liability".
This provision reflects changes in commercial practices and the widespread use of electronic tickets, while preserving passengers' fundamental rights.
For know the deadlines and procedures In the event of a dispute with an airline, we recommend our practical guide on this subject.
If you have a dispute concerning the application of the Montreal Convention, do not hesitate to consult our law firm. Our team, with its wealth of experience in air transport law, will be able to provide you with effective support in your compensation proceedings.
Sources
- Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999
- Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002 amending Regulation (EC) No 2027/97 on air carrier liability in the event of accidents
- Transport Code, articles L. 6421-1 et seq.
- International Civil Aviation Organization (ICAO), Document 9740, Manual on the implementation of Article 83 bis of the Convention on International Civil Aviation.
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