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‘Exposing a Grave Injustice’: Montreal Exclusivity and the Rights of Disabled Passengers

On March 5, 2014 the Supreme Court handed down its judgment in Stott v Thomas Cook (previewed for the UK Supreme Court blog last autumn here). The case had attracted significant interest domestically and internationally, with the claimant supported by the Equality and Human Rights Commission, and the Secretary of State for Transport intervening on his behalf.

Facts

During a journey from Zante, Greece, to East Midlands Airport in the autumn of 2009, the claimant Mr Stott, paralysed and permanently dependent on a wheelchair, suffered from a breach of his rights under the EU’s Disability Regulation (EC) No 1107/2006, as implemented in the United Kingdom by the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (SI 2007/1895). The trial judge assessed compensation at £2,500 but saw himself unable to make such an award due to the exclusive application of the Montreal Convention of 1999 (‘MC’).

Thomas Cook had relied on that international convention’s uniform rules governing liability under the contract of carriage by air, suggesting that their exclusive scope of application was a well-established principle in domestic, European Union and international law and that passengers could therefore not seek redress under domestic law. Article 29 MC stipulates 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 […]

The United Kingdom is a contracting party to the Montreal Convention, the provisions of which have also been incorporated into EU law by Regulation (EC) 889/2002. Giving the only substantive judgment for the Court of Appeal, Maurice Kay LJ had found in favour of the airlines on the basis of Article 29 MC:

The real injuries to [the claimants’] feelings […] were sustained at times when the Montreal Convention governed their situations. Its exclusivity both provided and limited their rights and remedies. Accordingly, their claims for compensation for injury to feelings could not succeed. [54]

Judgment

Judgment for the Supreme Court was given by Lord Toulson, with whom Lady Hale and Lords Neuberger, Reed and Hughes agreed. Following a summary of the facts and the relevant provisions in domestic and European Union law, his Lordship turned to a discussion of the Montreal Convention, ‘Article 29 [of which] is the rock on which Mr Stott’s claim for damages foundered’ [32].

Counsel for Mr Stott had suggested that the exclusivity question raised an important point of EU law and that the MC should not be applicable to the present case, which fell outside both its substantive and temporal scope. This could be illustrated by reference to joined Cases C‑581/10 and C‑629/10 Nelson and TUI Travel plc and Case C-344/04 ex parte IATA, where the CJEU had repeatedly found that the provisions of Regulation 261/2004 for compensation and assistance to passengers in case of delayed or cancelled flights were not incompatible with the MC, but rather a complementary regime of passenger protection. In rejecting this point, and the related request for a preliminary reference under Article 267 TFEU, Lord Toulson suggested that EU law as such was not engaged, or in any way manifestly clear, as the CJEU had held in ex parte IATA [at paragraph 42], that claims for damages on an individual basis would be subject to MC exclusivity, and Mr Stott’s claim was so founded.

Counsel for the Secretary of State for Transport, on the other hand, focussed on the temporal dimension of the claim, suggesting that the Regulations had been breached long before Mr and Mrs Stott’s embarkation. This argument, too, was rejected: on the facts, the actual injury had taken place only once aboard the aircraft, and also to avoid ‘encourag[ing] deft pleading in order to circumvent the purpose of the Convention’ [60]. Lord Toulson adopted the reasoning of Sotomayor CJ in King v American Airlines (see discussion below), and held that the quality of the cause of action was irrelevant: the Montreal Convention was designed comprehensively to deal with air carriers’ liability from the moment of embarkation until disembarkation.

Mr Stott’s claim thus failed, even though ‘it seem[ed] unfair that a person who suffers ill-treatment of the kind suffered by Mr Stott should be denied any compensation’. His Lordship went on to note that ‘there is much to be said for the argument that it is time for the Montreal Convention to be amended to take account of the development’ of fundamental rights protective regimes [63]. It was furthermore for the Civil Aviation Authority to decide whether to pursue other enforcement avenues, ‘including possible criminal proceedings’ [64].

In a brief concurring judgment, Lady Hale turned to the broader implications of the Supreme Court’s decision in international law, exploring how the Montreal Convention could be challenged in relation to other international instruments, such as the European Convention of Human Rights [69]. This would be the case particularly in the case of State carriers, even though ‘the extent to which international law imposes positive obligations upon States to protect individuals against violations of their fundamental rights by non-state actors is controversial’ [70].

Commentary

The Supreme Court’s decision will be closely scrutinised by representatives of the transport industry and passenger groups alike, and may well come to play an important role in the pending appeal in Thibodeau v Air Canada, soon to be heard by the Canadian Supreme Court. The judgment raises at least three important points.

Exclusivity

In his speech, Lord Toulson referred to the uncontroversial interpretation of the exclusivity principle expressed in Article 29, viz that a lack of remedy in casu cannot outflank the Montreal provisions – for example in the case of psychological harm which does not fall within the Convention’s notion of ‘damage’. This principle was famously laid down in the case of Sidhu v British Airways (where passengers could not sue at common law for harm resulting from their plane having been high jacked following the Iraqi invasion of Kuwait), and subsequently applied by senior courts around the world, including notably the United States Supreme Court in El Al Israel Airlines v Tseng (though Justice Stevens there dissented).

Lord Toulson then turned to a second line of argument, first developed by the US Court of Appeals for the Second Circuit in King v American Airlines. The Claimants in that case had argued that race discrimination fell outside the exclusivity provisions, as the offences committed by the carrier were qualitatively different from the wrongs envisioned by the Montreal Commission’s predecessor instrument, the Warsaw Convention of 1929. Sotomayor CJ (as she then was) rejected this argument, holding instead that the time and location of the accident were the only relevant factors to be taken into account. This interpretation is, with respect, slightly more controversial, especially in the light of subsequent jurisprudence by the Court of Justice of the European Union (CJEU).

Following the enactment of EU Regulation 261/2004 on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, the Court of Justice of the European Union (‘CJEU’) has repeatedly had to address the issue of exclusivity, as air operators’ on-going attempts to challenge the validity of that provision invariably include a focus on Article 29 MC. In Case C-344/04 ex parte IATA, for example, the Grand Chamber of the CJEU held that it would be wrong to assume ‘that the authors of the Convention intended to shield [air] carriers from any other form of intervention’ [45] and found that the Regulation’s ‘standardised and immediate assistance and care measures’ were therefore entirely consistent with the MC [48]. Despite significant resistance from industry and some academic commentators, the CJEU has repeatedly confirmed this interpretation of Article 29 MC.

Given the general emphasis on comity in this field, it is perhaps surprising that the CJEU’s approach was given such short shrift, particularly as both Lord Toulson and Lady Hale explicitly expressed their unease with the substantive results of their decisions. Following Case C-410/11 Pedro Sanchez v Iberia where the ECJ asserted jurisdiction in interpreting the Montreal regime, and given the universally binding effect of the ECJ’s preliminary rulings on Member State courts, I suggested here that a hitherto unknown degree of consistency and predictability in the application of the Montreal Convention might be a possibility on the horizon. As the European Union sees just over a third of worldwide air passenger traffic pass through its airports on an annual basis, this precedential effect may even radiate beyond Union borders and establish the Luxembourg court as a major force in providing authoritative interpretations of the Montreal Convention. The present decision suggests that, at least as regards exclusivity, this prediction has yet to come true.

EU Law

As noted, above, in rejecting counsel’s request for a preliminary ruling, Lord Toulson suggested that EU law as such was not engaged on the present facts, as he did ‘not consider that the questions of interpretation of the Montreal Convention on which the appear turns are properly to be regarded as questions of European law merely because the Convention takes effect via the Montreal Regulation’ [66].

Whilst the CJEU had in earlier decisions (such as Case C-301/08 Bogiatzi v Luxair) indeed found that it was not competent to interpret the rules laid down by the Montreal regime’s predecessor, the Warsaw Convention of 1929, even though all Member States had been party to it, this picture has clearly changed as a result of the Union’s accession to the Montreal Convention and subsequent secondary legislation. As the Court noted in Case C-410/11 Pedro Sanchez v Iberia, the text of the Montreal Convention has become an ‘integral part of the EU legal order’ [20].

The interpretation of a key MC provision such as Article 29 is therefore, with respect, likely to be an issue of EU law. The argument to be examined therefore is whether the meaning of the relevant provisions was clear enough for the ‘answer to be plain’ [66]: his Lordship suggested that as the CJEU had held in ex parte IATA [at paragraph 42] that claims for damages on an individual basis would be subject to MC exclusivity, Mr Stott’s claim could not succeed.

Subject to what has been said in the previous paragraphs this reading, whilst narrow, could in some sense said to be correct: it would have been possible in principle for the Supreme Court to suggest that the Disabled Passenger Rights regime was complementary to the Montreal Convention and thus similar to Regulation 261/2004. The main stumbling block in that regard, however, is the UK’s implementation of the relevant EU Regulation, which clearly envisages tortious compensation (UK Disability Regulations, Regulation 9(2)).

The question therefore arises whether the domestic implementation falls short of protecting the rights of disabled passengers under EU law, as specified in Regulation 1107/2006. Preamble (18) of that instrument, as cited by Lord Toulson, stipulates that

Member States should lay down penalties applicable to infringements of this Regulation and ensure that those penalties are applied. The penalties, which could include ordering the payment of compensation to the person concerned, should be effective, proportionate and dissuasive.

The final answer to that question will depend on which enforcement action, if any, the Civil Aviation Authority might now consider against Thomas Cook.

The Urgent Need for International Reform

In concluding her brief concurring speech, Lady Hale summarised the Supreme Court’s overall unease with the substantive result reached, and expressed her hope that

The question of whether there are indeed any limits to the apparently adamant exclusion in article 29 of the Montreal Convention may well require ventilation in another case or another place. At the very least, as Lord Toulson says, the unfairness of the present position ought to be addressed by the parties to the Convention. Small comfort though it may be to them, both Mr and Mrs Stott, with the support not only of the Equality and Human Rights Commission but also of the responsible department of the United Kingdom government, have done us all a service by exposing a grave injustice to which the international community should now be turning its attention.

There is some precedent for such developments: the Montreal Convention itself was the result of significant pressure from several signatories to the original Warsaw Convention, as the terms of that instrument had become hopelessly out-dated, in spite (or perhaps because?) of repeated amendments through additional Protocols and Agreements over the course of many decades. As Professor Pablo Mendes de Leon has noted, ‘a growing consciousness of the role to be played by consumer interests’ clashes with the Warsaw (now Montreal) regime, which gives ‘too much protection to the carriers and [prejudices] the interest of the passengers/consignors’. It remains to be seen, however, whether the Supreme Court’s calls for reform through international Treaty negotiations will be heard.

Experience with the Warsaw regime shows that a real impetus for significant reform, rather than incremental amendments, is most likely to come from significant resistance or even an outright refusal to apply the relevant Convention – as demonstrated, for example, when the United States government came close to denouncing the Warsaw Convention in the 1960s. As I have recently argued elsewhere (Air and Space Law, January 2014), the current negotiations surrounding the reform of the EU’s passenger rights regime might provide a suitable forum further to develop potential responses to the Supreme Court’s concerns.

Dr Jeremias Prassl is a Law Fellow at St John’s College, Oxford. He regularly writes about EU and Domestic Civil Aviation Law at EUtopia.