The New South Wales Court of Appeal allowed an appeal brought by Air Canada concerning the proper construction of provisions of the Montreal Convention 1999 and Air Canada’s International Tariff for the carriage of passengers by air.
The proceedings, which were commenced in 2021 in the Supreme Court of New South Wales, concern claims arising from mid-air turbulence on a flight from Montreal to Sydney that was diverted to Honolulu. They are brought by passengers seeking damages pursuant to the Civil Aviation (Carrier Liability) Act 1959 (Cth) and the Montreal Convention.
At first instance, the Supreme Court determined two separate questions, concluding that (a) the Civil Liability Act 2002 (NSW) applied to the assessment of damages under the Montreal Convention, and (b) Air Canada’s International Tariff excluded a defence available to the carrier for damages above a specified amount provided for in the Montreal Convention.
Air Canada appealed the decision in respect of the second question. The New South Wales Court of Appeal allowed the appeal and concluded that the tariff must be read as a whole, in light of its purpose and object, and having regard to the history of the Montreal Convention. It held that several textual considerations suggest that the relevant provision of Air Canada’s tariff did not have the effect of waiving the partial defence created by Article 21(2) of the Montreal Convention. This was also supported by a consideration of the history of the Montreal Convention, and the Warsaw regime which predates it.
A copy of the New South Wales Court of Appeal decision can be found at https://www.caselaw.nsw.gov.au/decision/19032d12b34c4df190330ba3
A copy of the decision of the Supreme Court of New South Wales can be found at https://www.caselaw.nsw.gov.au/decision/18c563dce8c547dc62ce3d0b
Justin Gleeson SC, Greg O’Mahoney and Daniel Habashy appeared for Air Canada in the proceeding, instructed by Norton White.
