Judicial Decisions. (i) Preliminary Remarks As a preliminary remark, Courts might have been inclined to avoid directly interpreting the concept of ‘bodily injury’, and to have had recourse to the referral to domestic law set out in Article 24 of the 1929 Warsaw Conven- tion and Article 29 of the Montreal Convention. As a matter of fact, the distinction between ‘mental injury’ and ‘moral damage’, also referred to as ‘non-material damage’, is slightly blurred and has not always been clearly delineated by Courts.136 These Courts may therefore consider that any kind of damage could be compensated pursuant to domestic law, as per the above provisions of the Conventions, without analysing whether the term ‘bodily injury’ also include mental injury. 132 ICAO, <xxxxx://xxx.xxxx.xxx/secretariat/legal/List%20of%20Parties/Mtl99_EN.pdf> (accessed 18 August 2019). 133 Xxxx Xxxxxxx, Treaties, Declarations of Interpretation, Xxx Xxxxxx Encyclopedias of Interna- tional Law 9 (2007). 134 Xxxxxx XxXxx, The Legal Effect of Interpretative Declarations, 49 British Yearbook of Inter- national Law 160 (1978). 135 See, section 3.3.2. 136 See, for example, Xxxxxx x. American Airlines, Inc., 287 F. App’x 309, 317 (5th Cir. 2008), where the Court held that, under the 1999 Montreal Convention, emotional distress for the loss of items in baggage cannot be compensated. This last decision should be compared to the 2010 Xxxx decision of the Court of Justice of the European Union, which held that the term ‘damage’, which underpins Article 22 of the 1999 Montreal Conven- tion, that sets the limit of an air carrier’s liability for damage resulting, inter alia, from the loss of baggage, must be interpreted as including both material and non-material damage. The following section will only focus on the way Courts have inter- preted the concept of ‘bodily injury’ under the 1929 Warsaw Convention and the 1999 Montreal Convention.
Judicial Decisions. A substantial number of Courts acknowledged this principle and consid- ered the time limit established to be unbreakable, and that it therefore was not supposed to be suspended or interrupted.162 However, certain Courts have argued that the second paragraph of Article 29 of the 1929 Warsaw Convention authorized them to adapt this limit pursuant to their domestic procedural law.163 This is particularly the case in France, where the Cour de cassation held in 1977164 that, despite having considered the contents of the Travaux Préparatoires, nothing in the text of the Convention expressly indicated that the two-year limit could not 161 Ibid., p. 76.
Judicial Decisions. Minor changes in the English version do not seem to have been considered sufficient reason to re-examine in depth case law developed earlier in certain jurisdictions. For example, in 2018, the Federal Court of Australia confirmed pre-existing case law established under the 1929 Warsaw 169 ICAO Doc 9775, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air), Montreal, 10 – 28 May 1999, volume I, Minutes, Montreal 1999, p. 188. 170 Ibid., p. 188-189. 171 Ibid., p. 189. 172 Ibid., p. 236: […] it related to the exercise in jurisdictions to deal with time limits on the basis that there might be aspects which would render it fraudulent or inequitable. […] many Courts did indeed exercise that jurisdiction. In terms of private international law, in terms of limitations of action, the matter was viewed as a procedural one, as a clas- sification to be determined by lex fori. It was not without significance that that language had been used for the last seventy years in Article 29 of the Warsaw Convention, as well as in its successors. […] no doubt that, if any action came up before a Court under circumstances where the claimant had been precluded from bringing suit as a result of imprisonment, kidnapping or matters of that kind, then a Court, in the exercise of its inherent jurisdiction, in exercise of lex fori, would come to the conclusion that time did not begin to run until the claimant were free to be available’. Convention, and held that the time limits of the 1999 Montreal Convention were unbreakable.173 Similar decisions can be found in other jurisdictions, such as in the United States174 and in Russia.175 However, the possibility of suspending or interrupting the two-year limit is still discussed in certain jurisdictions. In Spain, for example, the question arose of whether this provision was to be considered as falling within the category of ‘prescripción’ or ‘caducidad’.176 Although the highest Court has not officially put an end to this controversy, the Court of Appeal of Madrid held in 2015 that – in light of the foreign Warsaw and Montreal jurisprudence, the doctrine, and hopes of achieving uniformity – the time 173 See, Bhatia v. Malaysian Airline System Berhad, (2018) FCA 1471.
Judicial Decisions. A. Any provisions of this Agreement, or amendments thereto, judicially declared to be in violation of any applicable state or federal law shall be null and void, but all other provisions of this Agreement shall remain in full force and effect. In the event any provision of this Agreement is declared unlawful in a manner described above, the parties agree to meet within 15 days and, for a reasonable period thereafter, continue negotiations until substitute clauses have been reached via negotiation or arbitration in accordance with State law.
Judicial Decisions. You have an absolute right to have a judge decide what you are entitled to in your action. We only give you our opinion based upon the thousands of times we have been in court. Your decision is very important - make sure you and your loved ones can live with it. Once a divorce is final (excluding child support & custody after two years) it is very hard to change.
Judicial Decisions. 1. The New Brunswick Reports;
Judicial Decisions. In parallel, from an early stage many Courts recognized the need for a uniform application of the Conventions. In the United Kingdom, the importance of uniform application particu- larly emerged when the House of Lords ruled it was ‘in the interest of uniformity’75 to change their practice and to have recourse to the Travaux Préparatoires of the 1929 Warsaw Convention, as it was an interpretation means used in other jurisdictions. The Court also highlighted in Xxxxxx that: ‘[the Convention] was intended to be applicable in a uniform way across legal boundaries’.76 In turn, the CJEU highlighted in Xxxx, that given the essence of the 1999 Montreal Convention, the uniform rules should receive a uniform interpre- tation: Since the Montreal Convention does not contain any definition of the term ‘dam- age’, it must be emphasised at the outset that, in the light of the aim of that con- vention, which is to unify the rules for international carriage by air, that term 72 See, for instance, ICAO Doc 9775, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air), Montreal, 10 – 28 May 1999, volume I, Minutes, Montreal 1999, p. 49: ‘[…] it would be possible to avoid situa- tions such as those faced in a number of countries where different interpretations were given to the Warsaw Convention on this question’; Ibid., p. 71: ‘The present draft did not promote unification of legal rules and the essential terms of the Convention were open to different interpretations that could substantially affect the victim’s claim’; Ibid., p. 72: ‘The Delegate of Bahrain took the view that in adding mental injury, a clear definition of that notion had to be included to avoid contradictions and conflicts in the interpretation of the text’.
Judicial Decisions. The exclusivity of the Conventions is a powerful protection against the risk of undesirable interferences made by Courts with domestic legislations. Such interferences could lead to a significant fragmentation of the envis- aged uniform rules.
Judicial Decisions. Courts have regularly confirmed the autonomous dimension associated with the wish of uniformity of the Conventions. In Thibodeau, the Supreme Court of Canada summarized, the reasons for the creation of uniform rules: The Warsaw Convention (and therefore its successor the Montreal Convention) had three main purposes: to create uniform rules governing claims arising from inter- national air transportation; to protect the international air carriage industry by limiting carrier liability; and to balance that protective goal with the interests of passengers and others seeking recovery. These purposes responded to concerns that many legal regimes might apply to international carriage by air with the result that there could be no uniformity or predictability with respect to either carrier liability or the rights of passengers and others using the service. Both passengers and carriers were potentially harmed by this lack of uniformity.122 In the United Kingdom, the House of Lords confirmed in Xxxxxx that: ‘[…] the basic concepts it employs to achieve its purpose are autonomous concepts’.123 In Re Deep Vein Thrombosis, Xxxx Xxxxx of Xxxxxxx pointed out that the: ‘[…] the language of the Convention should not be interpreted by reference to domestic law principles or domestic rules of interpretation’.124 In Ireland, the Supreme Court highlighted that: ‘[…] terms in the Convention should receive, as far as practicable, an autonomous Conven- tion meaning’.125 The Court of Justice of the European Union also recognized the specific nature of the 1999 Montreal Convention in several decisions.126 In Xxxx, it held notably that: […] in the light of the aim of that convention, which is to unify the rules for international carriage by air, that term must be given a uniform and autonomous interpretation, notwithstanding the different meanings given to that concept in the domestic laws of the States Parties to that convention.127 122 Xxxxxxxxx v. Air Canada, (2014) 3 SCR 340, at 41. This decision however does not distin- guish the objectives and the purposes of the Conventions as done in this study. 123 Xxxxxx x. KLM Royal Dutch Airlines, (2002) UKHL 7, at 16. 124 Re Deep Vein Thrombosis and Air Travel Group Litigation, (2005) UKHL 72, at 11.
Judicial Decisions
