International carriage – liability for passenger injury or death

Montreal Convention and Warsaw Convention

Do the courts in your state interpret the similar provisions of the Montreal Convention and the Warsaw Convention in the same way?

The High Court in Wang Bao’ An & Ors v Malaysian Airline System Berhad & Other Cases [2018] 11 MLJ 585, a case in connection to the Malaysia Airlines flight MH370 incident, had held that the principles of law relating to the construction and interpretation of similar articles of both the Montreal Convention and Warsaw Convention would be the same. The position taken by Malaysian courts is consistent with the stand taken by both the Supreme Court of Canada and the United Kingdom.

Do the courts in your state consider the Montreal Convention and Warsaw Convention to provide the sole basis for air carrier liability for passenger injury or death?

Yes. The Malaysian Court of Appeal in All Nippon Airways Co Ltd v Tokai Marine & Trading Co Ltd [2013] 4 MLJ 744 and the subsequent High Court case of Wang Bao’ An & Ors v Malaysian Airline System Berhad & Other Cases [2018] 11 MLJ 585 have upheld and endorsed the exclusivity principle in that the Montreal Convention and Warsaw Convention provides for the exclusive cause of action in connection with liability of the carrier resulting in the personal injury or death of passengers in an international carriage by air within the scope of both the Conventions.

Definition of ‘carrier’

In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?

The question of who is considered to be a ‘carrier’ or whether ground handling agents or other ancillary service providers are considered as a ‘carrier’ has not been decided by a Malaysian court. Neither the Warsaw Convention nor the Montreal Convention defines what is meant by ‘carrier’. The CAA 1974 does not define a ‘carrier’.

However, an ‘actual carrier’ and ‘contracting carrier’ were defined under the Guadalajara Convention 1961, which is incorporated in the Second Schedule of CAA 1974. Chapter V of the Montreal Convention incorporates the provisions of the Guadalajara Convention in articles 39 to 48 and regulates the rights and liabilities of the actual and contracting carrier.

There are no reported cases in Malaysia on the meaning, ambit and scope of ‘successive carrier’.

Carrier liability condition

How do the courts in your state interpret the conditions for air carrier liability - ‘accident’, ‘bodily injury’, ‘in the course of any of the operations of embarking or disembarking’ - for passenger injury or death in article 17(1) of the Montreal Convention and article 17 of the Warsaw Convention?

The High Court in Wang Bao’ An & Ors v Malaysian Airline System Berhad & Other Cases [2018] 11 MLJ 585 had ruled that the carrier’s strict liability under article 17 of the Montreal Convention is triggered once it is established that a passenger has died or suffered bodily injury and that the accident took place on board the aircraft or in the process of embarking or disembarking. Both the High Court and a prior decision of the Court of Appeal in All Nippon Airways Co Ltd v Tokai Marine & Trading Co Ltd [2013] 4 MLJ 744 had affirmed the principle that international jurisprudence on the interpretation and construction of the convention must be given due cognisance and there must be reluctance to depart for established consensus, particularly that of the apex court of contracting parties to the Convention. It is anticipated that the Malaysian Court would adopt the interpretation of the term ‘accident’ as expressed by the US Supreme Court in Air France v Saks (1955) 470 US 392.

There are no reported decisions as to what constitutes the ‘operations of embarking and disembarking’, but it is likely that the Malaysian court would follow international jurisprudence in this regard.

No negligence defence

How do the courts in your state interpret and apply the ‘no negligence’ defence in article 21 of the Montreal Convention, and the ‘all reasonable measures’ defence in article 20 and the ‘wilful misconduct’ standard of article 25 of the Warsaw Convention?

There are no reported cases in Malaysia on interpretation or application of the ‘no negligence’ defence under article 21 of the Montreal Convention or the ‘all reasonable measure’ defence in article 20 or the ‘wrongful misconduct’ stated in article 25 of the Warsaw Convention.

Advance payment for injury or death

Does your state require that advance payment be made to injured passengers or the family members of deceased passengers following an aircraft accident?

No. However, advance payments have been made to the families of deceased passengers in recent fatal aviation accidents.

Deciding jurisdiction

How do the courts of your state interpret each of the jurisdictions set forth in article 33 of the Montreal Convention and article 28 of the Warsaw Convention?

There are no reported cases on the interpretation of article 28 of the Warsaw Convention or article 33 of the Montreal Convention.

The doctrine of forum non conveniens is recognised in Malaysia and the maxim has been applied in a commercial litigation setting by the Malaysian Supreme Court 1995 and the principle has been recently reaffirmed by the apex court in 2014. It is anticipated that the Malaysian courts would similarly apply the maxim in a Montreal or Warsaw Convention action.

Period of limitation

How do the courts of your state interpret and apply the two-year period of limitations in article 35 of the Montreal Convention and article 29 of the Warsaw Convention?

There are no reported cases on article 35 of the Montreal Convention in Malaysia. However, the Malaysian High Court had an occasion to construe article 29 of the Warsaw Convention and held that the effect of article 29 differs from that found in the general statute of limitation in that article 29 extinguishes the right to damages. It is anticipated that a similar construction and effect would be held by the court when applying article 35 of the Montreal Convention. The two-year limitation under the Convention is absolute.

Liability of carriage

How do the courts of your state address the liability of carriage performed by a person other than the contracting carrier under the Montreal and Warsaw Conventions?

There are no reported cases in Malaysia on this point.