Air Carrier Liability under the Montreal Convention: Implementation by Kuwaiti Courts
Transport & Logistics Focus
Passant Mansour Associate,Transport & Insurance
General speaking, the aviation sector in Kuwait plays a crucial role in the country's transportation and economy, we can provide a brief of general information in respect of the aviation sector in Kuwait.
We will start with Kuwait Airports where we can notice that Kuwait has one major international airport, which is the Kuwait International Airport It is located approximately 16 kilometres south of Kuwait City, the capital. However, recently Kuwait government increased the number of airports in Kuwait to expand and increase the passenger’s capacity. As such the number of the civil Kuwait airports reached to four airports where every airport is serving separate terminal and airline. Such as Kuwait Airways, the national carrier of Kuwait has separate airport where operates both domestic and international flights where we can say that the airport has more plans for further expansion to accommodate the growing demand for air travel.
Adding to the above that Kuwait International Airport handles significant cargo operations, facilitating the transportation of goods and products. Cargo airlines and freight carriers operate scheduled and charter flights to transport cargo to and from Kuwait.
Bearing in mind that the Directorate General of Civil Aviation (DGCA) is the regulatory authority responsible for overseeing and regulating the aviation sector in Kuwait. It ensures compliance with safety and security standards, issues licenses, and manages air traffic control within the country.
Having said that such expansion in the number of the airports which will lead by default for growing the demand of the air travel, increase the numbers of passengers along with the numbers of the flights per day where we cannot deny that is it a very good resource for the economics of the country. However, such expansion might lead to several challenges such as:
The claims which might be filed from the passengers against the air carrier before the Kuwaiti courts in respect of several issues such as flight delay, flight cancellation, loss of luggage or delay of receiving the luggage as well as in some cases the air carrier is denial the passenger from boarding.
Unfortunately, when the passenger is filing such case before the Kuwait courts, we can notice from our experience from similar cases that they are always involving DGCA as part of the claim because DGCA as we mentioned earlier are the regulator of the airport where they suppose to be fully aware with any incident might happened to any passenger in any terminal if such incident is under Kuwait’s jurisdiction.
Meanwhile, when we are talking about any type of claims which related to delay of passenger or delay in receiving his luggage then we need mention Montreal Convention (MC) and the provisions of the same.
The Montreal Convention refers to the Convention for the Unification of Certain Rules for International Carriage by Air, also known as the Montreal Convention of 1999. It is an international treaty that sets out a comprehensive legal framework for the carriage of passengers, baggage, and cargo by air.The Montreal Convention was created to modernize and harmonize the rules governing international air travel and replace the outdated Warsaw Convention of 1929. It establishes the rights and liabilities of passengers, shippers, and airlines in case of accidents, delays, or other incidents during international air travel.
We are happy to mention that Kuwait is one of the countries who signed and ratified on MC whereas you all may know that the conventions / treaties are superior to local law. Hence, in Kuwait it is the applicable law when the case is related to any compensation for delayed or loss of baggage.
There are several Key provisions of the Montreal Convention which includes the below:
Liability for passenger injury or death: The Convention establishes a system of strict liability for airlines in cases of passenger injury or death during international flights. The airline is generally held liable unless it can prove that the incident was not due to its negligence or other fault.
Limits of liability: The Convention sets out limits of liability for damages in cases of passenger injury or death, as well as for delay, loss, or damage to baggage or cargo. These limits are periodically adjusted to reflect changes in currency values.
Compensation for delayed or lost baggage: Passengers are entitled to compensation for damages caused by delay, loss, or damage to their baggage during international travel. The Convention sets a maximum limit for such compensation.
Time limits for claims: The Montreal Convention establishes time limits for filing claims related to international air travel. In general, a passenger must file a claim within two years from the date of arrival at the destination, or from the date on which the aircraft should have arrived.
The MC applies to all international carriage of persons, baggage or cargo performed by paid aircraft as well as the gratuitous carriage.
The purpose of such Convention is the coverage of any international carriage according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transshipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.
In Kuwait and according to several judicial precedents that the liability of the air carrier is based on presumed fault until the air carrier can prove that they took the full measures to avoid such damage or to prove that the damage which happened was due to force majeure which means that the action which happened and affected the flight was completely out of the air carrier’s control.
As such, air carriers have two options to release from the above-mentioned liability according to Article 19 of MC which stated that” The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures”.
To implement the above article practically before the Kuwait courts, the air carrier has two options:
- Option one: proving to the court that they took the full measures such as: providing the passenger with an alternative flight, hotel Accommodation and meals to reduce the damage which will be causing the passengers.
- Option two: Proving that such action was happened due to force majeure such as: technical error exposure to the airplane.
Having said that not all the Kuwaiti courts are considering the technical errors as a force majeure because they are expecting from the air carrier to do a proper maintenance on the airplane and make it ready for departure. However, some of the Kuwaiti courts considered the technical error which as force majeure by considering that such error is completely out of the air carrier control’s even if a proper maintenance has been done prior to the departure date.
Therefore, we are always keen to request all the air carries to save themselves by keeping all the relevant documents which proves that there is a technical error has exposure the airplane during the conflicted flight which lead to such delay, otherwise without such prove the Kuwaiti courts will not take our defence seriously.
Finally, we would like to welcome all the air carrier not to hesitate to seek for any advice on MC and how the same is implemented in terms of the delayed flights in Kuwait courts.
For further information,please contact Passant Mansour.
Published in August 2023.
