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Sezgin SEZER
Customs Consultant
The Montreal Convention, which came into force in 1999, actually replaced the previously existing Warsaw Convention. Although many countries accepted the Warsaw Convention, which came into force in 1929 and is one of the oldest commercial agreements, it was criticized for being focused on the interests of airline operators.
The Warsaw Convention, which was criticized especially regarding compensation for accident victims, created the need to make many protocols, especially the 1955 Hague, 1971 Guatemala and 1975 Montreal protocols, but it created divisions because the sufficient number of parties could not be reached. Many airlines have even signed agreements setting higher limits among themselves.
The first amendment to the Warsaw Convention was the Hague protocol dated 1955. Türkiye has ratified and put into effect the Hague protocol dated 1955. Later amendments were made to the 1971 Guatemala and 1975 Montreal protocols, and our country became a party to these protocols. Although the Convention has been tried to be combined and developed with these protocols, the increase in air traffic as a result of globalization and the regulations regarding the transportation of passengers and cargo by air are behind the times.
The Montreal Convention was opened for signature by the states participating in the International Air Law Conference held in Montreal between 10-28 May 1999. Türkiye signed the Convention on 25 May 1999 and put it into force on 26 March 2011
The most important innovation of the convention is the introduction of the concept of unlimited liability of the air carrier. Accordingly, while the carrier has unlimited liability in passenger and baggage transportation, the principle of strictly limited liability has been adopted in goods transportation. This principle has been criticized because the carrier will be held limited responsible even if he deliberately damages the goods
While the old system imposed limited liability on the carrier in cases of death or injury of the passenger, the Montreal Convention envisages a two-stage compensation system. First stage; It imposes an absolute liability of up to 100,000 SDR, which is not due to the fault of the carrier. The second stage is based on the presumption of fault of the carrier and does not include any limit of liability.
In cargo transportation, provided that the contract is in writing, it may stipulate that disputes arising between the parties will be resolved by arbitrators determined by them, instead of the official judicial bodies of the state.
The carrier is held responsible if the accident that causes death or injury to the passenger occurs inside the aircraft or during any loading or unloading activity.
In case of destruction, loss or damage to the checked baggage, the carrier is liable for the damage only if the event that caused this situation occurred in the aircraft or at a time when the checked baggage was under the responsibility of the carrier.
There is no obstacle within the scope of "freedom to contract" for the carrier to become a party to a different contract of carriage, to waive any protection brought by the Montreal Convention, or to refuse to impose conditions contrary to the provisions of the Montreal Convention.
In case of transportation to be carried out by various joint carriers; Every carrier accepting passengers, baggage and cargo is subject to the rules set out in the Montreal Convention. In addition, each carrier will be considered one of the parties to the transportation contract to the extent that the transportation contract is related to that part of the transportation carried out under its supervision.
The person entitled to compensation may file a lawsuit against the carrier who carried out the transportation at the time the accident or delay occurred. However, in cases where one of the carriers assumes responsibility for the entire journey, the lawsuit will be filed against the assuming carrier.
The Convention imposes an obligation on air carriers to make advance payments to persons entitled to file a lawsuit as a result of aircraft accidents, without delay, in order to meet their urgent economic needs, authorizes local law to determine the amount of this payment, and stipulates that this amount will be deducted from the compensation to be awarded as a result of the lawsuit.
Air carriers are obliged to provide proof of insurance that will enable the payment of compensation.
According to the convention, a speedy trial method must be established that ensures compensation is paid in a short time. It is possible to file compensation cases in the courts of the country where the accident occurred or in the courts of the country where the passenger has permanent residence, depending on the existence of certain conditions. It also provides simplification and renewal of standard passenger, baggage and cargo documents, which are important evidence in compensation cases. In this context, flight tickets, which until ten years ago contained almost 10 pages of provisions written in small letters, have been converted into single-page formats that can be downloaded from the internet.
As a result, the Montreal Convention achieved its aim of successfully unifying old conventions and preserving the delicate balance between carrier and passenger. However, as international travel increases as a result of globalization and information technology improves, the need to update the Montreal Convention will continue to exist.
SOURCE;
Official Gazette – Convention for the Unification of Certain Rules Concerning International Carriage by Air
Turkish Grand National Assembly (S. Number: 1087) Draft Law Concerning the Approval of the Convention on the Unification of Certain Rules Concerning International Transportation by Air and Reports of the Public Works, Zoning, Transport and Tourism and Foreign Affairs Commissions (1/1142)
Directorate General of Civil Aviation – Announcement about the Montreal Convention
Oğuz Yıldız – Aviation Rules and Legislation Presentation
QUESTIONS AND ANSWERS
Question 1. Which convention replaced the Montreal Convention? What is the reason for replacing this contract?
Answer: It replaced the Warsaw Convention. In addition to the fact that the Warsaw Convention prioritizes the interests of airline operators, it has been criticized a lot regarding accidents and compensation, thus necessitating the renewal of the contract.
Question 2. What is the most important innovation brought by the Montreal Convention?
Answer: It is brought about by the concept of unlimited liability of the air carrier.
Question 3. When did Türkiye become a party to the Montreal Convention and on what date did it come into force in our country?
Answer: Turkey signed the Convention on 25 May 1999 and the Montreal Convention entered into force in Turkey as of 26 March 2011.
Question 4. According to the Montreal Convention, what sanctions are applied as a result of the death or injury of a passenger?
Answer: It envisages a two-stage compensation system. First stage; It imposes an absolute liability of up to 100 000 SDR, not depending on the fault of the carrier. The second stage is based on the presumption of fault of the carrier and does not include any limit of liability.
Question 5. According to the Montreal Convention, what is the requirement for the carrier to be held responsible for the death or injury of the passenger?
Answer: In order for the carrier to be held responsible, the accident causing death or injury must have occurred inside the aircraft or during any loading or unloading activity.
