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Baher Saleh
International Associate

Disclaimer: This Article Does Not Constitute Legal Advice

While this article aims to provide a comprehensive understanding of the Montreal Convention and its implications for passengers in the realm of international air travel, it’s important to note that this article does not constitute legal advice. Every situation is unique, and detailed, so personalized advice must be obtained from qualified legal professionals to address your specific circumstances. The article is intended for informational purposes only and should not replace competent legal consultation.


When you’re jetting off to a foreign land, the last thing you want to think about is the possibility of something going wrong with your flight. Unfortunately, delays, cancellations, lost luggage, and even personal injuries can occur during air travel. The question then arises: is it appropriate to take legal action against an airline? Before delving into this complex issue, it’s essential to understand the Montreal Convention. Officially known as the Convention for the Unification of Certain Rules for International Carriage by Air, this treaty offers a standardized legal framework that governs a range of issues related to international air travel, including passengers’ rights and airlines’ liabilities

Adopted in 1999, the Montreal Convention has been ratified by more than 130 countries, making it a universally accepted set of guidelines for dealing with disputes between airlines and passengers. Among other things, it outlines the conditions under which an airline can be held liable for damages, establishes the rights of passengers in case of delayed or cancelled flights, and sets the rules for compensating victims of accidents or lost baggage. Understanding the Montreal Convention is crucial for anyone contemplating a lawsuit against an airline for mishaps that occur during international travel.

Airlines' Obligations: Contractual, Not Tortious

When exploring the legal grounds for suing an airline, a common question arises: Do airlines’ obligations to passengers stem from tort law or from a contract? Article 3(5) of the Montreal Convention makes this distinction crystal clear. It states, “Non-compliance with the provisions of the foregoing paragraphs shall not affect the existence or the validity of the contract of carriage, which shall, nonetheless, be subject to the rules of this Convention including those relating to limitation of liability.”

What this essentially means is that the obligations airlines have toward their passengers are contractual in nature, arising from the “contract of carriage” that is formed when a ticket is purchased.

Scope and Limitations of Airlines' Liability: Articles 17, 19, and 20 of the Montreal Convention Article 17: Death, Injury, and Baggage Damage

Article 17 of the Montreal Convention spells out the conditions under which airlines are liable for death or bodily injuries to passengers and for damages to baggage. The liability is conditional: it applies only if the accident causing death or injury occurred either on board the aircraft or during embarkation or disembarkation operations. Similarly, liability for checked baggage arises only if the loss or damage occurred while the baggage was under the carrier’s control.

What’s crucial to note here is that these obligations are again contractual, rooted in the “contract of carriage” and further detailed in the international framework of the Montreal Convention. The article makes it clear that the airline is not liable for damages to baggage if the damage resulted from an inherent defect or quality of the baggage itself.

Article 19: Liability for Delays

Article 19 addresses the carrier’s liability for damage caused by delays in the carriage of passengers, baggage, or cargo. The rule is straightforward: if there’s a delay, the carrier is liable for the damage it causes.

However, there’s a significant condition. The carrier’s liability ceases if it can prove that all reasonable measures were taken to avoid the damage, or that it was impossible to take such measures. This essentially provides airlines with a defense, enabling them to escape liability if they can demonstrate due diligence or the presence of uncontrollable factors, like extreme weather conditions.

Article 20: Exoneration from Liability

Article 20 further refines the concept of liability by stating that if the carrier can prove that the damage was caused or contributed to by the negligence or wrongful act of the claimant, it can be wholly or partly exonerated from its liability. This is a critical point for passengers to understand. Your own actions, if negligent or wrongful, can undermine your claim for compensation.

Limits on Compensation: Articles 21 and 22 of the Montreal Convention Article 21: Death or Injury of Passengers

Article 21 deals with the upper limits on damages related to death or injury, stating that carriers cannot exclude or limit their liability for damages that don’t exceed 100,000 Special Drawing Rights (SDRs) per passenger. However, the carrier may not be liable for damages exceeding this amount if they prove either:

The damage wasn’t due to their negligence or any wrongful acts or omissions by their servants or agents.

– The damage was solely due to the negligence or wrongful acts or omissions of a third party.

This stipulation is significant because it places an upper boundary on what airlines are legally obligated to offer by way of compensation. If you’re seeking damages above 100,000 SDRs, the burden of proof shifts, and the airline has the opportunity to limit its liability by proving the conditions mentioned.

Article 22: Delays, Baggage, and Cargo

This article puts forth limitations on what airlines must pay for delays, baggage issues, and cargo damages. Specifically:

– Liability for delays is capped at 4,150 SDRs per passenger.

– Liability for baggage issues is capped at 1,000 SDRs per passenger, unless a special declaration of interest was made at the time of check-in, in which case, the limit might be higher.

– Cargo damages are capped at 17 SDRs per kilogram.

The article further clarifies that these limits do not apply if it is proven that the damage was intentional or recklessly caused by the carrier, its servants, or agents.

What If Your Loss Exceeds These Limits?

One of the most critical questions passengers face is what to do when their loss significantly exceeds the limits set by the Montreal Convention. While these limits set a default maximum payout, they’re not absolute barriers to greater compensation. For instance, paragraph 5 of Article 22 explicitly states that these limits don’t apply if it’s proven that the carrier acted with intent to cause damage, or recklessly and with knowledge that damage would probably result.

In addition, paragraph 6 of Article 22 allows for the court to award costs and other litigation expenses, which may serve as an additional layer of potential recovery beyond the capped amounts for direct damages.

The Last Resort: Legal Action as per Article 22(6) of the Montreal Convention

If the amount of compensation remains a point of contention, passengers are not without options. Article 22(6) of the Montreal Convention provides a legal pathway for pursuing additional compensation through the courts. Before initiating legal action, however, it’s essential to understand the elements of breach that need to be proven for a successful claim. These are:


In addressing damages because of a breach of contractual obligations or because of a tort, a causation must be established. In other words, it should be proved that the loss incurred by one party is the result of the other party’s breach. In this regard, it is not only sufficient to establish factual causation, but legal causation is required as well.

The principle of legal causation confirms that, even in cases where the factual causation is satisfied, the harm or loss suffered might be treated legally as not having been caused by the breach. In this regard, the courts adopt a “break the chain of causation” approach between the breach and the harm.

Lord Bingham explained in Corr v IBC Vehicles Ltd [2008] UKHL 13:

“The rationale of the principle that a novus actus interveniens [Latin for new intervening act] breaks the chain of causation is fairness. It is not fair to hold a tortfeasor liable, however gross his breach of duty may be, for damage caused to the claimant not by the tortfeasor’s breach of duty but by some independent, supervening cause (which may or may not be tortious) for which the tortfeasor is not responsible.”


In assessing the damages and addressing remoteness of the damage, it is worth noting that the traditional test of remoteness, which is in essence a test of foreseeability, is set out in Hadley v Baxendale [1854] EWHC Exch J70. This test operates as follows: – A loss will only be recoverable if it was “in the contemplation of the parties”, that is, foreseeable.

– The loss must be foreseeable not merely as being possible, but as being “not unlikely”.

– The loss must be foreseeable at the date of contracting, not the date of breach.

– It is not the precise circumstances that occur that must be foreseeable, but the type or kind of loss.


Understanding the intricacies of the Montreal Convention and the elements of breach can significantly impact the outcome of a legal battle for compensation. When all other avenues for compensation have been exhausted, the courts offer a potential pathway for passengers to seek the damages they believe are justly owed to them, beyond the default limitations of the Montreal Convention.

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