A tweet on the 8th October 2013 read:
“PI Claim struck out because Montreal Convention pleaded instead of Warsaw Convention.”
(The case in question is reported in detail by Jasmine Murphy on the Hardwicke Chambers website.)
This reiterates the points made in in the post of “Aviation and the Really Vicious Limitation Period”*
THE TEN CRUCIAL QUESTIONS
There are 10 crucial questions every personal injury litigator should ask in relation to aviation issues and limitation.
1. WHY WOULD IT MATTER WHICH CONVENTION WAS PLEADED?
I don’t intend here to go into the differences between the two Conventions (see the links below). The important point for the purpose of this discussion is that the Warsaw Convention requires the action to be brought within two years.
1. The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
2. WHY WOULD THE ACTION BE STRUCK OUT?
The only cause of action that a claim has is under the terms of the Warsaw Convention. An attempt to bring the action any other way is most probably invalid.
3.ISN’T PLEADING A CASE IN NEGLIGENCE ENOUGH TO BRING A CLAIM?
Probably not. I have been involved in cases where an action was struck out even though it was issued within the two year limitation period. The Claim Form referred to the claimant’s action being in “negligence”. The claimant, however, had no cause of action in negligence but only under the terms of the Warsaw Convention. The judge held that the action, that is the action under the Convention, had not been brought within the two year period.
4. WHAT WOULD HAPPEN IF THE CLAIM WERE PLEADED UNDER THE MONTREAL CONVENTION WHEN THE WARSAW CONVENTION APPLIED?
It is likely that the judge found that the claimant’s exclusive cause of action was under the Warsaw Convention. An action purporting to be under the Montreal Convention was not a valid action.
5. WAS THERE ANYTHING THE CLAIMANT COULD DO?
Having pleaded the action incorrectly most probably not. At the end of the two year period any cause of action is extinguished. It is difficult to see how the claim could be amended. The action simply did not exist. There is no Section 33 discretion.
6. AND THE MORAL OF THE STORY IS?
Be very, very, careful in relation to all actions relating to air travel, in particular pleading in both the claim form and particulars of claim.
7. WHAT IS THE DIFFERENCE BETWEEN THE WARSAW AND MONTREAL CONVENTIONS AND WHEN DO THEY APPLY?
The best guidance I have found is at:
(If anyone knows of a better summary of the situation please let me know).
8. DOES THIS APPLY JUST TO AIRCRAFT?
No. The Convention can apply to accidents that happen in the airport. See the case law cited at https://civillitigationbrief.wordpress.com/2013/07/30/aviation-and-the-really-vicious-limitation-period-how-not-to-get-sued-3/
9. ANY FURTHER READING THAT WOULD HELP ME IN FINDING WHICH CONVENTION APPLIES?
You could try these:
10. SHOULD I BE WORRIED BY THIS?