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I. Execution and Enforcement of the Montreal Convention

Convention for the Unification of Certain Rules for International Carriage by Air ("Montreal Convention") was opened to signature in Montreal by the states participating in the “International Conference on Air Law” held in Montreal during May 10th to 28th 1999 for the purpose of harmonizing of the Warsaw Convention to today’s conditions. Montreal Convention, to which Turkey is also a signatory state, has come into force by the promulgation of the “Law on the Approval of Convention for the Unification of Certain Rules for International Carriage by Air”; numbered 5866, dated 02.04.2009 and published in the Official Gazette numbered 27200, dated 14.04.2009. In accordance with the last paragraph of Article 90 of the Turkish Constitution, which gives the force of law to the international agreements that duly come into force, Montreal Convention has achieved the similar effect with the Laws of the Turkish Republic in terms of its power and binding effect.

Montreal Convention, after four years of its being open to signature on May 1999; was entered into force globally on November 04, 2003 and became binding for several states as of such date. Montreal Convention became enforceable for Turkey after five years following the Convention’s becoming binding for the other states. Montreal Convention was executed by more than a hundred states including Turkey, but was not entered into force by certain states (90% of them are African states) including Turkey until April 2009.

II. Before the Montreal Convention

1. General

Warsaw Convention which was replaced by Montreal Convention has been criticized for not protecting the benefits of the passengers since its coming into force in 1929, even though it was generally signed by most of the states, because of its provisions relating to the payment of law limits of indemnities to the victims of an accident and such provisions being more to the favor of the airline companies. Such criticisms resulted with certain customization activities to be conducted, such as the enactment of the Protocols; La Haye (1955), Montreal (1971) and Guatemala (1975). Nevertheless; those protocols lead to further conflicts in the system because they were not adopted by sufficient number of states and thus could not be effective. Airline companies of certain states have signed other agreements which define higher compensation limits than the limits of Warsaw Convention to prevent the conflicts in the system.

Meanwhile, in 1997, Turkish Airlines (THY) became a signatory to the International Air Transport Association (IATA) Agreement and agreed to be subject to a compensation for strict liability of SDR 100.000 (approximately USD 152.000). For the liability exceeding such amount, THY agreed to a burden of proof, which is stricter than the burden of proof regulated by Warsaw Convention. The agreements, such as IATA Agreement to which most of the Turkish airline operators are parties, are private law agreements and thus from the point of international law, they do not constitute similar effect with the laws. Montreal Convention has harmonized and unified the provisions of this two-tier system by introducing more protective provisions in favor of the passengers/consumers rights.

2. Legislations in Turkish Law

Turkish Civil Aviation Law numbered 2920, dated 14.10.1983 and published in the Official Gazette numbered 18196; dated 19.10.1983 (“TCAL”) includes provisions on flight damages. Pursuant to Article 120 of TCAL, in case of death or bodily injury of a passenger, carrier shall be responsible for the death or bodily injury only if the accident which caused the death or injury took place on board of the aircraft or while the passenger was getting on or getting off the aircraft.

Pursuant to Articles 121 and 122 of TCAL, in the event that a checked-in baggage or cargo is lost or damaged or delayed in delivery; carrier shall be responsible for the loss or damages only if the event causing the loss or damage took place at the time of the carriage.

Pursuant to Article 123 of TCAL, carrier will be relieved from liability if it proves that the carrier and its employees took all necessary measures to prevent the damage or that it was impossible for the carrier to take such measures. Additionally, pursuant to Article 124 of TCAL, carrier’s liability may be limited in accordance with the provisions of Warsaw Convention, and the carrier may become a party of the private agreements in order to increase the limitations of liability introduced by Warsaw Convention. In other words, the extent of the carrier’s liability has been determined by the provisions of TCAL, Warsaw Convention and the private agreements entered into according to the provisions of the Warsaw Convention.

Pursuant to Article 132 of the TCAL; carriers authorized to perform the carriage of passenger, cargo and postage are obliged to provide insurance for the compensation of indemnification claims arising from the carriage contracts. In parallel to this article of TCAL, which puts the burdens of providing indemnification insurance on the shoulders of the carrier; Regulation on Indemnification Insurance of Turkish and Foreign Civil Aircrafts Land or Departure within the Borders of Turkish Republic (“Regulation”) came into force by being published in the Official Gazette dated 15.11.2006 and numbered 26347. Article 8 of the Regulation provides for a minimum guaranty amount and adjudges an amount of SDR 250.000 per passenger as the minimum insurance liability of the aircraft operators in case of death or bodily injury of a passenger.

Prior to the Montreal Convention, the compensation system was quite complicated and created a long and complex list; by the reason of the references made by the TCAL and Regulation to the international agreements and the ability to execute private agreements in accordance with the provisions of such international agreements. It is obvious that, Montreal Convention will resolve the conflicts in the system by being the only reference and having the similar effect with law.

III. Analyzing Certain Provisions of Montreal Convention

Montreal Convention is applicable to all international carriage of persons, baggage or cargo by aircraft. Once certain important provisions of Montreal Convention are analyzed, it becomes obvious that the above mentioned benefits are protected more effectively, this time, under one agreement.

Pursuant to Montreal Convention; parties to a carriage contract for cargo may provide that any dispute relating to the liability of the carrier under this Convention shall be settled by arbitration and such agreement of the parties must be in writing.

The right to damages arising from the Montreal Convention shall be extinguished within a period of two years from the date of arrival at the destination, or from the due date of arrival of the aircraft, or from the date on which the carriage stopped.

The carrier is liable for damages in case of death or bodily injury of a passenger only if the accident which caused the death or injury took place on board of the aircraft or in the course of any of the operations of embarking or disembarking. Similarly, the carrier shall be liable for damages in case of destruction or loss of, or of damage to checked baggage only if the event which caused the destruction, loss or damage took place on board of the aircraft or during any period within which the checked baggage was in the charge of the carrier.

As a principle of freedom of contract; nothing contained in the Montreal Convention shall prevent the carrier to refuse entering into any carriage contract, to waive any defenses available under the Montreal Convention, or to lay down conditions which do not conflict with the provisions of the Montreal Convention.

In the case of carriage to be performed by various successive carriers, each carrier accepting the passengers, baggage or cargo is subject to the rules of Montreal Convention. Additionally, each carrier shall be deemed to be a party to the carriage contract in so far as the contract deals with the part of the carriage which is performed under its supervision. The person who is entitled to indemnity shall file a lawsuit against the carrier who carries the passengers, baggage or cargo at the time of the accident or delay. However, in cases where the first carrier takes on the responsibility of the whole journey, by explicit agreement, the lawsuit shall be filed against the carrier who takes on the responsibility.

Montreal Convention introduces the concept of “unlimited liability of airfreight carriers”. Pursuant to Montreal Convention which foresees a two-tier indemnification system; the first phase consist of an objective liability up to SDR 100.000, regardless of whether the carrier is negligent or not. The second phase abides by the proof of carrier’s negligence and does not include a limitation of liability.

Additionally, pursuant to Montreal Convention; in the case of aircraft accidents resulting in death or injury of passengers; the carrier shall, if required by its national law, make advance payments to natural person or persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons. Such advance payments shall not constitute recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier.

Carriers are obliged to submit evidentiary documents of insurance which may make the indemnities payable. Furthermore, a fast working litigation process has been introduced, which provides for expedited payment of indemnities. Standard passenger, baggage and cargo documents, which constitute important evidences for suits for damages have been simplified and restored.

From the perspective of Turkey, Montreal Convention, which aims to protect passengers and consumers financially in case of potential accidents in air freights taking place in the signatory states, is expected to resolve the conflicts in the system created by the former agreements.