THE EXCLUSIVITY OF WC29/MC99 WITH REFERENCE TO PASSENGER PROTECTION REGULATIONS AND JURISPRUDENCE

1. THE EXCLUSIVITY OF WC29/MC99 WITH REFERENCE TO PASSENGER PROTECTION REGULATIONS AND JURISPRUDENCE Sonja Radošević LL.M. (Adv.) Air and Space law Leiden

2. EXCLUSIVITY – MEANING, PURPOSE, INTENT WC29: Article 24 • para. 1: »In the cases covered by Articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention.« • para 2: »In the cases covered by Article 17 the provisions of the preceding paragraph also apply [...].« MC99: Article 29 - Basis of claims • »In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention [...].«

3. EXCLUSIVITY – THE CORNERSTONE OF WC29/MC99 UNIFORMITY House of Lords, Sidhu and Others v. British Airways (1996): • »[...] to permit exceptions, whereby a passenger could sue outwith the Convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which the Convention did not create any liability on the part of the carrier.« US Supreme Court, El Al Israel Airlines v. Tseng (1999): • »[...] the Warsaw Convention precludes a passenger from maintaining an action for personal injury damages under local law, when her claim does not satisfy the conditions for liability under the Convention.« Others followed: • i.e. most recent: Hook v. British Airways, (2011); Air Canada v. Thibodeau, (2012); Stott v. Thomas Cook Tour Operators (2014).

4. PASSENGER PROTECTION REGULATIONS AND JURISPRUDENCE DISREGARDING EXCLUSIVITY Two principal causes of concern: (1.) Proliferation of national passenger rights regulations covering the exact same matter as governed exclusively under the WC29/MC99 (i.e. EU Regulation No. 261/2004 (compensation for delay!) and similar regimes adopted elsewhere, i.e. Israel, USA, Turkey, Canada). (2.) Jurisprudence ignoring exclusivity (i.e. national, regional - CJEU): • IATA and ELFAA v. Department for Transport (2006); • Joined cases of Sturgeon v. Condor and Böck v. Air France (2009); • Joined cases of Nelson and Others v. Lufthansa and TUI Travel and Others v. CAA (2012).

5. EXCLUSIVITY - CONCLUDING REMARKS • WC29/MC99 creates an exclusive and uniform legal framework for air carrier liability in the international air carriage of passengers and baggage, including damages caused by flight delays. • Latest UK Supreme Court case Stott v. Thomas Cook Tour Operators(2014) confirms strict application of exclusivity. • Co-existence of national passenger rights regulations v. WC29/MC99 (exclusivity) → Unresolved and a threat to uniformity. • Any proposal for new passenger rights regulations or to reform existing ones should ascertain that the boundaries of the WC29/MC99 are respected.