CTA Decision Commentary: They said what?

On January 31, 2014 the Canadian Transportation Agency released a lengthy decision addressing certain of Porter Airlines’ tariff provisions (Decision No. 31-C-A-2014). In the course of the decision, the Agency made a number of findings, some more supportable than others. However one finding is particularly problematic and warrants comment. While considering Porter’s tariff provisions addressing liability for delay the Agency stated at paragraph 29:

The Agency finds that when a flight delay occurs, Article 19 of the Montreal Convention imposes an obligation on the carrier to take the necessary steps to mitigate the damage suffered by passengers because of the delay, including the arranging of alternative air transportation.

The above statement is profoundly inconsistent with the objects and structure of the Montreal Convention. Article 19 is contained in Chapter III of the Convention which is titled “Liability of the Carrier and Extent of Compensation for Damage”.  Chapter III is a liability code that addresses the right to civil damages for claims against an air carrier by passengers and cargo consignors/consignees.

Article 19 of the Montreal Convention states:

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.

 The twin purposes of Article 19 are to create a cause of action for delay in the carriage of passengers, baggage and cargo and to provide the carrier with a defence to that cause of action if it took reasonable measures to avoid the delay or that it was impossible to take such measures. In other words it follows a standard approach to civil liability in common law and civil law systems – it establishes a cause of action that a plaintiff may advance, and provides a defence to that cause of action that a defendant may assert in response.

Put another way, Article 19 provides a standard for Courts to determine whether or not a carrier is liable for civil damages for delay on a given set of facts.

There is simply no provision in Chapter III of the Montreal Convention that imposes any commercial levels of service on the carrier. Such a conclusion is so far beyond the scope of Chapter III it could not reasonably have been in the contemplation of the drafters of the Convention. It is noteworthy that there are no cases, apart from Agency decisions, that have held that Article 19 imposes a positive service level obligation on the carrier.

Given the immense power wielded by the Agency over air carriers, it is disappointing to see conclusions so out of touch with mainstream analysis of the Convention.

The full decision can be found here: http://www.otc-cta.gc.ca/eng/ruling/31-c-a-2014

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