Article 19 of the 1999 Montreal Convention provides that “the carrier is liable for damage occasioned by delay in the carriage by air of passengers”. The majority of case law accepts that the notion “delay” implies that the passenger arrives at its destination. The published case law accepts that when the carrier aborts the journey, the 1999 Montreal Convention might not be applicable.
What if the passenger aborts the journey along the route? When a passenger misses its connecting flight and takes a next flight and arrives late at its destination, article 19 of the 1999 Montreal Convention is applicable. It is however not sure whether article 19 is applicable when the first flight suffers a delay and the passenger subsequently aborts its journey and thus never arrives at the final destination. Are the damages then incurred following the delay? There is a tendency to consider this as a delay under article 19 of the 1999 Montreal Convention.
Recent case law however accepts a more balanced approach. When a passenger books a journey with connecting flights, it is the passenger’s primary responsibility to provide for sufficient transit/transfer time between the connecting flights. The passenger is the master of the journey. The air carrier, or the website offering the flights, indeed often suggests connecting flights. However, it is the passenger which is aware of all the details and requisites of the journey and his own personal capabilities to assess the suitability of the suggestion. It is the passenger which, in the end, accepts or refuses the suggestion made by the air carrier. The passenger should however be able to take an informed decision.
In case the first flight arrives late and the passenger subsequently aborts the journey, it is advisable to verify whether the transit/transfer time was sufficient. If the passenger did not provide for enough transit or transfer time, courts are willing to consider that there is no delay in the sense of article 19 of the 1999 Montreal Convention. Moreover, the damages did not occur following a delay, but are caused by the insufficient transit/transfer time. This is the case e.g. when the passenger cannot justify its use of time after the arrival at the transfer airport until the departure time of the connecting flight. This implies that courts do not have to apply article 19 of the 1999 Montreal Convention as soon as one of the flights has suffered a delay.
The passenger remains the master of its journey and hence should bear a certain responsibility with regard to connecting flights. The passenger should however be able to take an informed decision.
Other articles related to the Aviation Bulletin for February 2013:
> ACG V Olympic Airlines: The meaning of “airworthiness” and the “as-is, where-is” principle
> Islamic Aircraft Financing
> Regulation 261 in practice after ECJ Grand Chamber's decision on Sturgeon