Common use of Case Law Developed Prior to the 1999 Montreal Convention Clause in Contracts

Case Law Developed Prior to the 1999 Montreal Convention. While the 70 years of existence of the 1929 Warsaw Convention have gener- ated an impressive amount of case law, this study should verify whether Courts still rely on case law developed under previous instruments in cases governed by the 1999 Montreal Convention, in order to ascertain whether or not there is uniformity in the interpretation tools used by these Courts. In the United States, the 6th District Court highlighted in Doe that the wording of the 1999 Montreal Convention was different to the one of the 1929 Warsaw Convention, with the consequence that previous case law did not have any authority: […] the Montreal Convention is a new treaty that we interpret as a matter of first impression, and there is no legal authority that would require us to import ▇▇▇▇▇▇▇’s Warsaw Convention determination to govern this Montreal Convention claim.180 The Court nevertheless admitted that domestic or foreign decisions rendered under the previous text were still valid precedent, insofar as they concerned similar provisions and were delivered before the ratification of the 1999 Montreal Convention: 177 However, more and more comparative analyses are being carried out by both Cours de cassation. See, Cour de cassation de Belgique, Rapport annuel 160 et seq. (2018), Source: Belgian Federal Public Service of Justice, <▇▇▇▇▇://▇▇▇▇▇▇▇.▇▇▇▇▇▇▇.▇▇/sites/default/ files/downloads/20180321_jp_31.pdf> (accessed 31 March 2020). 178 ▇▇▇▇▇▇▇▇▇ v. Air Canada, (2014) 3 SCR 340, at 50. 179 CJEU, 26 September 2019, GN v. ZU acting for ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, C-532/18, ECLI:EU:C:2019:788 (Opinion), at 44. 180 Doe v. Etihad Airways, P.J.S.C., 870 F.3d 406 (6th Cir. 2017), at 415. Because these Supreme Court cases analyzed aspects of the Warsaw Convention that we have no reason to believe have changed following the ratification of the Montreal Convention (and that neither party has argued have changed follow- ing the ratification of the Montreal Convention), it is reasonable to conclude that these cases form part of the ‘precedent’ consistent with which, according to the Explanatory Note […], the drafters expected signatories to construe Article 17(1) of the Montreal Convention. Accordingly, we have adopted ▇▇▇▇’ definition of ‘accident’, and our discussion of damages […] will be guided by ▇▇▇▇▇▇▇▇▇’▇ def- erence to the forum jurisdiction’s choice-of-law rules.181 The UK Supreme Court implicitly confirmed in ▇▇▇▇▇ the continuity to a certain extent of the case law related to these instruments.182 Interpreting the concept of exclusivity, ▇▇▇▇ ▇▇▇▇▇▇▇ referred to jurisprudence established under the 1929 Warsaw Convention on the grounds particularly that Article 17 of both Conventions were formulated in materially identical terms.183 In Canada, Justice ▇▇▇▇▇▇▇▇ in turn noted, in ▇▇▇▇▇▇▇▇▇, that case law drawn up under the 1929 Warsaw Convention was only ‘helpful’ for inter- pretation purposes. He held that: The Montreal Convention was adopted in 1999 in Montreal and applies to all international carriage by aircraft of persons, baggage or cargo. It was the suc- cessor to the [Warsaw Convention] […] and its purpose was ‘to modernize and consolidate the Warsaw Convention and related instruments’: preamble of the Montreal Convention. To understand the purposes of the Montreal Convention, we therefore must go back to its predecessor, the Warsaw Convention […]. The pur- poses of the Warsaw Convention and of the Montreal Convention were the same and decisions and commentary respecting the Warsaw Convention are therefore helpful in understanding those purposes […].184 Looking at the CJEU, the same prudent approach was adopted by Advocate General ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ in Niki, where he considered that only inspiration could be taken from foreign case law, including decisions delivered under the Warsaw Convention185: In that regard, I consider, as have both the referring court and all the parties which have submitted observations in the present case, that it is appropriate to take into consideration the interpretation of that concept employed by vari- 181 Ibid., at 425-426. 182 Later, in a case governed by the 1999 Montreal Convention, the High Court of England and Wales carefully confirmed the interpretation of the term ‘accident’ given under the 1999 Warsaw Convention. See, ▇▇▇▇▇▇▇▇ v. Alitalia, (2019) EWHC 2013 (QB). 183 ▇▇▇▇▇ v. ▇▇▇▇▇▇ ▇▇▇▇ Tour Operators Ltd, (2014) UKSC 15, at 26. 184 ▇▇▇▇▇▇▇▇▇ v. Air Canada, (2014) 3 SCR 340, at 31. 185 As a reminder, the Court of Justice of the European Union is not competent to interpret the 1929 Warsaw Convention. See, CJEC, 22 October 2009, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, married name ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Luftpool, Société Luxair, société luxembourgeoise de navigation aérienne SA, European Communities, Grand Duchy of Luxembourg, Foyer Assurances SA, C-301/08, ECLI:EU:C:2009:649. ous courts of States Parties to the Warsaw Convention and/or the Montreal Con- vention, in order to draw any inspiration from those judicial precedents, even though the Court is not bound by them.186 In a nutshell, Courts are in an uncomfortable position. They are supposed to consider the 1999 Montreal Convention as a new international instru- ment which prevails over prior instruments such as the 1929 Warsaw Convention,187 but, at the same time, the connections between the Conven- tions are so numerous and important that they seem to be hesitant to depart from existing case law, except for a valid reason.

Case Law Developed Prior to the 1999 Montreal Convention. While the 70 years of existence of the 1929 Warsaw Convention have gener- ated an impressive amount of case law, this study should verify whether Courts still rely on case law developed under previous instruments in cases governed by the 1999 Montreal Convention, in order to ascertain whether or not there is uniformity in the interpretation tools used by these Courts. In the United States, the 6th District Court highlighted in Doe that the wording of the 1999 Montreal Convention was different to the one of the 1929 Warsaw Convention, with the consequence that previous case law did not have any authority: […] the Montreal Convention is a new treaty that we interpret as a matter of first impression, and there is no legal authority that would require us to import ▇▇▇▇▇▇▇’s Warsaw Convention determination to govern this Montreal Convention claim.180 The Court nevertheless admitted that domestic or foreign decisions rendered under the previous text were still valid precedent, insofar as they concerned similar provisions and were delivered before the ratification of the 1999 Montreal Convention: 177 However, more and more comparative analyses are being carried out by both Cours de cassation. See, Cour de cassation de Belgique, Rapport annuel 160 et seq. (2018), Source: Belgian Federal Public Service of Justice, <▇▇▇▇▇://▇▇▇▇▇▇▇.▇▇▇▇▇▇▇.▇▇/sites/default/ files/downloads/20180321_jp_31.pdf> (accessed 31 March 2020). 178 ▇▇▇▇▇▇▇▇▇ v. Air Canada, (2014) 3 SCR 340, at 50. 179 CJEU, 26 September 2019, GN v. ZU acting for ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, C-532/18, ECLI:EU:C:2019:788 (Opinion), at 44. 180 Doe v. Etihad Airways, P.J.S.C., 870 F.3d 406 (6th Cir. 2017), at 415. Because these Supreme Court cases analyzed aspects of the Warsaw Convention that we have no reason to believe have changed following the ratification of the Montreal Convention (and that neither party has argued have changed follow- ing the ratification of the Montreal Convention), it is reasonable to conclude that these cases form part of the ‘precedent’ consistent with which, according to the Explanatory Note […], the drafters expected signatories to construe Article 17(1) of the Montreal Convention. Accordingly, we have adopted ▇▇▇▇’ definition of ‘accident’, and our discussion of damages […] will be guided by ▇▇▇▇▇▇▇▇▇’▇ def- erence to the forum jurisdiction’s choice-of-law rules.181 The UK Supreme Court implicitly confirmed in ▇▇▇▇▇ the continuity to a certain extent of the case law related to these instruments.182 Interpreting the concept of exclusivity, ▇▇▇▇ ▇▇▇▇▇▇▇ referred to jurisprudence established under the 1929 Warsaw Convention on the grounds particularly that Article 17 of both Conventions were formulated in materially identical terms.183 In Canada, Justice ▇▇▇▇▇▇▇▇ in turn noted, in ▇▇▇▇▇▇▇▇▇Thibodeau, that case law drawn up under the 1929 Warsaw Convention was only ‘helpful’ for inter- pretation purposes. He held that: The Montreal Convention was adopted in 1999 in Montreal and applies to all international carriage by aircraft of persons, baggage or cargo. It was the suc- cessor to the [Warsaw Convention] […] and its purpose was ‘to modernize and consolidate the Warsaw Convention and related instruments’: preamble of the Montreal Convention. To understand the purposes of the Montreal Convention, we therefore must go back to its predecessor, the Warsaw Convention […]. The pur- poses of the Warsaw Convention and of the Montreal Convention were the same and decisions and commentary respecting the Warsaw Convention are therefore helpful in understanding those purposes […].184 Looking at the CJEU, the same prudent approach was adopted by Advocate General ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ in Niki, where he considered that only inspiration could be taken from foreign case law, including decisions delivered under the Warsaw Convention185: In that regard, I consider, as have both the referring court and all the parties which have submitted observations in the present case, that it is appropriate to take into consideration the interpretation of that concept employed by vari- 181 Ibid., at 425-426. 182 Later, in a case governed by the 1999 Montreal Convention, the High Court of England and Wales carefully confirmed the interpretation of the term ‘accident’ given under the 1999 Warsaw Convention. See, ▇▇▇▇▇▇▇▇ v. Alitalia, (2019) EWHC 2013 (QB). 183 ▇▇▇▇▇ v. ▇▇▇▇▇▇ ▇▇▇▇ Tour Operators Ltd, (2014) UKSC 15, at 26. 184 ▇▇▇▇▇▇▇▇▇ v. Air Canada, (2014) 3 SCR 340, at 31. 185 As a reminder, the Court of Justice of the European Union is not competent to interpret the 1929 Warsaw Convention. See, CJEC, 22 October 2009, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, married name ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Luftpool, Société Luxair, société luxembourgeoise de navigation aérienne SA, European Communities, Grand Duchy of Luxembourg, Foyer Assurances SA, C-301/08, ECLI:EU:C:2009:649. ous courts of States Parties to the Warsaw Convention and/or the Montreal Con- vention, in order to draw any inspiration from those judicial precedents, even though the Court is not bound by them.186 In a nutshell, Courts are in an uncomfortable position. They are supposed to consider the 1999 Montreal Convention as a new international instru- ment which prevails over prior instruments such as the 1929 Warsaw Convention,187 but, at the same time, the connections between the Conven- tions are so numerous and important that they seem to be hesitant to depart from existing case law, except for a valid reason.