Russia adopts the Montreal Convention

On 4 April 2017, Russia ratified the provisions of the Montreal Convention 1999 which will enter into force on 21 August 2017. In common with other recent adopters of the Montreal Convention, the transition has been driven by the need to introduce standardised e-freight, it will have an impact on liability claims as well.

There are a number of differences between the Warsaw Convention and the Montreal Convention which carriers will have to consider, including the calculation of limits of liability, the defences available to carriers, the notice periods for claims to be presented and the standards used. Warsaw Convention cases were subject to limits based on the value of a “Convention Franc”, whereas the Montreal Convention uses the “Special Drawing Right” (SDR).

In adopting the Montreal Convention, Russia will also have to make provisions which allow passengers to bring claims in an additional jurisdiction: that of their principal permanent residence (where the carrier has a place of business). As a result, once the provisions of the Montreal Convention are brought into force, a passenger who is ordinarily resident in Russia should be able to bring a claim under the provisions of the Montreal Convention, even if their flight did not travel to or from a Russian airport.

Baggage

There are no changes regarding:

• A carrier’s strict liability for damage or delay to baggage.
• The notice period to present a claim to a carrier – 7 days (or 21 days from the date of receipt of delayed baggage).
• Contributory negligence

There are, however, changes to the limits of liability for checked and unchecked baggage.

Therefore, in cases where there has been an “accident”, an air carrier will be liable for claims up to 113,100 SDRs. Damages in excess of 113,100 SDRs can be claimed, but these claims can be defended if the carrier can prove:

1. That the damage was not caused as the result of its (or its servants or agents) negligence or wrongful acts or omissions; or
2. That the damage was solely caused by the negligence or wrongful acts or omissions of a third party.

While the limit of liability for bodily injury will increase substantially, in practice, given the low level of damages which are usually awarded by Russian Courts, it seems unlikely that the change will make a substantial difference to either carriers or their insurers.

Cargo claims

There are no changes regarding:

• A carrier’s strict liability for delay or damage to cargo caused by an “occurrence” during the course of carriage by air.
• The notice period to present a claim to a carrier - 14 days from the date of delivery; 21 days in the case of delay.
• Contributory negligence.

The limits of liability have changed but, as air waybills fix the limit at 19 SDR per kg of cargo, irrespective of which international convention applies and the parties are free to contract at a higher limit of liability, this change will have limited impact.

However, under the Warsaw Convention, the limits of liability could be broken if the claimant could prove wilful misconduct or recklessness on the part of the carrier. The Montreal Convention removes this provision creating an “unbreakable limit”. This is likely to provide one of the most significant changes in terms of liability under the Montreal Convention and represents an important protection for the carrier.

Further, the defences available to a carrier are much more extensive. A carrier is exempt from liability if it can prove that damage to cargo was caused by:

• An inherent defect.
• Defective packaging.
• An act of war or armed conflict.
• An act of a public authority carried out in accordance with the entry, exit or transit of the cargo.

The term “inherent defect or vice” is not defined but has been used to describe a defect in cargo which means it will suffer damage during normal carriage (for example, cut flowers which decay by virtue of a disease in the flowers themselves.

Comment

The limits of liability under the Montreal Convention are higher than those under the Warsaw Convention but there are significant protections for carriers, particularly in cargo claims.

Ultimately, the implementation of the Montreal Convention should not impact how courts assess damages and injuries. As levels of damages awarded by courts in Russia tend to be low, the higher limit of liability is unlikely to have a significant impact on awards, however it remains to be seen whether more claims will be received because of the change.

This article was co-authored with Angela Norina, Norina and Partners.