Montreal v. Brussels: The Conflict of Laws on the Issue of Delay in International Air Carriage

Abstract

In recent years, the European Union has promulgated several ‘consumer protection’ regulations that address a variety of airline passenger issues, including flight delay, cancellation, and denied boarding. In 2002, the Commission proposed a new regulation regarding air carriage that eventually became Regulation (EC) 261/2004, repealing the old Regulation (EEC) 295/91. Its purpose is to compensate passengers suffering the inconvenience of being delayed or refused boarding through mandatory payment and provision of certain auxiliary services. More precisely, the Regulation requires airlines to grant financial compensation to passengers in the event of denied boarding or flight delay or cancellation, assist them in revising their travel plans by giving them the choice between a rescheduling of the ticket or a refund, and pay for their board and lodging.

However desirable this new Regulation may be, it raises serious legal questions regarding the relation with the international conventions that address carrier liability for passenger injuries, including delay in air carriage. Those Conventions for the Unification of Certain Rules Relating to International Carriage by Air (i.e., the Warsaw Convention of 1929 and the Montreal Convention of 1999) directly address the issue of air carrier compensation to passengers for damages suffered as a consequence of ‘delay’ and also explicitly provide that the remedies provided thereunder are exclusive. All Member States of the EU have ratified those Conventions. For Brussels to promulgate regulations in conflict with those Conventions would contravene the obligations of its EU Member States and therefore be ultra vires.

This article examines the EU Regulations regarding delay in air passenger carriage contrasted with their international counterpart. As the regulations have begun to produce judicial opinions, the effect of the different regulations in the light of these cases will also be evaluated. The overall thesis is that such complementary regulations, in so far as they cover the same area as a convention, conflicts with the international conventions and the exclusivity of their application.

Keywords: Montreal Convention 1999, Warsaw Convention, EU Regulation, International Air Carriage, Carrier Liability, Exclusive Remedy, Conflict of Laws, Uniformity of International Law, Flight Delay, Flight Cancellation, Denied Boarding, Overbooking, Bumping, Consumer Protection, Financial Compensation, ECJ