Liability or Liberty: an assessment of air carrier’s liability under the Montreal Convention to passengers in case of an accident

Abstract

This research investigates whether the international legal framework established by the Montreal Convention of 1999 (MC) achieved its intended purpose of establishing air carrier liability for passenger death or injury caused by an accident during international air transport. In addition, the research evaluates the legal lacunae exist in the present legal regime in establishing strict liability of the air carrier in case of accident during air carriage. To reach the objective of the research, it adopted a qualitative research method that includes a library-based black letter approach. The discussion of the research chronologically made the extensive evaluation of MC Article 17 governning the air carrier liability concept and it covers elements of term accident, embarking or disembarking and bodily injury. The research extensively analyses significant jurisdictional approaches made in many jurisdictions when establishing carrier liability for tort accidents, including those that resulted in innovative mechanisms, refinements, and reforms involving passengers in air carriage. Further analysis coveres the salient aspects of a two-tier liability system for compensation on a liability claim in the MC. Based on the findings, the research argues that the liberal jurisprudence articulation effort on carriers's strict liability concept under MC led to certain judicial activism and resulted in creating legal lacunae due to deviating carriers' strict liability expected to be established in Article 17. Finally, the research proposes recommendations for implementation in the process of updating air carrier liability legislation in order to address identified legal issues and gaps in the future.