Empowering airline passengers

Just this week, the Star carried a news item about the Senate ratifying two treaties on aviation.  These of course ensure greater protection and fairer compensation to air passengers in case of accidents during flights.  These treaties refer to the 1999 Montreal Convention (MC99) and the Protocol Relating to an Amendment to the Convention on International Civil Aviation.

A quick review of history pertaining to the protocols and conventions leading to MC99 is in order now that the Philippines has adopted this regime as basis for our own aviation protocol.

To harmonize private international air laws, the Convention for the Unification of Certain Rules Relating to International Carriage by Air, otherwise known as the Warsaw Convention was signed in 1929 in Warsaw although, as agreed upon by the member states in attendance, this came in to force only in 1933. A total of 152 states concurred with all the provisions of the Warsaw Convention, a  significant number insofar as concurrence is concerned, which you will see as you read on.

When World War II came to an end, the aviation industry saw more improvements with larger airplanes and much longer routes, more air passengers and increased freight, and the 1929 Warsaw Convention was becoming irrelevant to the times. In 1944, the Chicago Convention brought a measure of order and a smoother flow of air passengers, baggage and cargo, and this took effect in 1947, concurred in by 191 states against Warsaw’s 152.

In 1955, the Hague Protocols took place to introduce more improvements to the original Warsaw Convention, and six years later, another set of innovations came via the 1961 Guadalajara Protocols signed by 86 member states and came in to force in 1964.

Change is indeed inevitable and the aviation industry evolved even faster.  The next aviation convention,  the Guatemala Protocols of 1971, however failed to gain enough support from the other countries and only seven member states ratified it and it was never implemented.  A few years later, four additional protocols were adopted:  Protocol 1 in 1996 that saw the concurrence of 49 states; Protocol 2 also in 1966 concurred in by 50 states; Protocol 3 concurred in by  only 21 of the 32 signatories and which was never in force; and Protocol 4 in 1998 which had the conforme and signatures of 58 states.

There was much disagreement among the member states which had their own interests to protect.  These same dissidents invoked the old rules and regulations of the Warsaw Convention where it pleased them, and the aviation industry remained fractured and contentious.

The latest in this series is the 1999 Montreal Convention adopted to modernize the old protocols, but since it took effect in 2004, only 103 of the 191 member states or 54 percent have ratified it.  In 2013, a group led by the United States, Canada, Germany, Singapore, the United Arab Emirates,  the International Air Transport Association (IATA) and the International Air Cargo Association called for another convention to again call attention to the rules set forth in the Montreal Convention and to push for the unification of its rules.

The rules that we as consumers need to understand are those that are pertinent to injuries or death to passengers and loss, delay or damages to cargo and baggage in the course of the operations of the airline. In essence, while the checked baggage was in the charge of the carrier, it is liable for damage sustained or the loss thereof of checked baggage unless the damage resulted from inherent defect or quality of the baggage.  For unchecked baggage, the liability is still there if the damage resulted from its fault or the airlines’ agents fault.

If the check baggage does not arrive at its original destination after 21 calendar days, the passenger may claim for damages.

“In case of death or injury of a passenger, compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger.”

In case of a civil suit, the court may award, in addition to the provisions in MC99 the litigation expenses of the plaintiff, including interests.  “Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention shall be null and void”, though this nullity does not affect the other provisions in the Convention.

“In the case of aircraft accidents resulting in death or injury of passengers, the carrier shall, if required by its national law, make advance payments without delay to a natural person or persons to meet the immediate economic needs of such persons.  Such advance payments shall not constitute a recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier.” “The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date on which the aircraft ought to have arrived…”

In case of denunciation of the convention provisions by a member state, this should be done in writing to the depository which is the International Civil Aviation Organization and shall take effect 180 days from notification.

Since the Warsaw Convention, much has been gained in terms of consumer protection.  For instance, under this same Convention the carrier has a liability of only $12,000.00 (or its equivalent) for death or injury of a passenger. This was increased to $24,000.00 in the Hague Protocol, and with the additional protocols that ensued, this was pegged at $25,000.00 for death or injury. However, with the Montreal Convention airline liability caps have been increased substantially such that a passenger is entitled to claim damages up to $170,000.00 (as of April 2013) even without proof of negligence or fault by the airline. Furthermore, in excess of this amount, the burden of proof is on the shoulders of the carrier to show that it was not negligent.

The International Civil Aviation Organization is mandated to review these liability limits every five years in order to keep pace with developments in the aviation industry and with inflation as well.

Be informed, be empowered.

Mabuhay!!! Be proud to be a Filipino.

For comments: sunshine.[email protected] / [email protected]