Delay or Cancellation? Montreal or Not? Which is Right?

13th November 2020 by David Grant

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There is an interesting article in the latest issue of Which? (Which? December 2020 p. 69) entitled ‘Emirates left us stranded in Australia’. The article recounts how a passenger was booked on an Emirates flight from Canberra to the UK but the flight was cancelled because of COVID. The only alternative was a flight several days later with Qatar airlines costing £9223.

On his return home the passenger contacted the Which? Legal Service who advised him that the Montreal Convention applied to his situation and he was entitled to compensation for the difference in price for the replacement flight. After the intervention by Which? Emirates agreed to compensate him.

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However the question arises as to whether the Montreal Convention actually applies to cancellations. Article 19 of the Convention provides that compensation is available in the event of a delay in the carriage by air of passengers but there is no mention of flight cancellations in the Convention. The significance of this distinction is that delays fall within the Convention but cancellations do not; they are treated as non-performance and to make a claim a passenger should bring an action for breach of contract.

Shawcross and Beaumont, the leading authority on Air Law, states that the boundary between delay and non-performance is ‘somewhat uncertain’, as it is under Regulation 261/2004, but they cite cases where a clear distinction has been found and the courts have treated cancellations as non-performance and the Convention has not applied.

If the Which? case had come to court the passenger concerned would almost certainly have been better off bringing an action in contract for non-performance because the Montreal Convention has liability limits set at a maximum much less than the £9223 he had to pay for a replacement flight.

David Grant. Editor in Chief of the Travel Law Quarterly

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