The paper gives the author’s view and critical in-depth analysis on how the Portuguese courts of law have been (not always) applying, all over the years, the exclusivity principle enacted under the 1929 Warsaw Convention (WC) as well as under the 1999 Montreal Convention (MC99), which construction may bring implications and concerns, namely and among other respects, onto the passengers’ rights and awarding damages determination and limitation. On the other hand, the author also raises strong grounded criticism and arguments against to the comparative judicial authority upholding the doctrine of complete preemption of the said international conventions, specially, with regards to the up today case law established by the supreme judicial authority in the UK as well as in the USA. According to the author’s view, the doctrine of complete preemption of the applying international conventions may lead to the air carrier’s impunity, escaping from liability, or, to avoid such a result of absurdity, may lead to the de-characterization of the term of ‘accident’, broadly construing it and so making it equivalent to any neutral and risks aviation unrelated event. This distorts the 1999 Montreal Convention aim to be a shift from an air carrier/industry protection oriented convention to a consumer protection oriented convention and, consequently, the principle of “equitable balance of interests” (recitals 3 and 5 of the Preamble of MC99). Finally, the author looking into the ECJ case law on EU Regulation 261/2004 which had restructured it so that passengers’ compensation shall also apply to delays on destination equal or over 3 hours, reaches the conclusion that, broadening the said Regulation substantive scope to an extent beyond the non-performance of the air carriage contract respects (e.g. denied boarding, cancellation, long delay at departure) which domain the ECJ has qualified as the ‘earlier stage’ of regulatory substantive scope of 1999 Montreal Convention, causes the EU regulation to overlap the said Convention in contravention of the exclusivity principle of the latter (e.g. ruling on the air carrier liability for late arrival involving performance of the air carriage contract). Moreover, the right to compensation for late arrival under the EU Regulation holds the format of a liquidated damages compensation imposed on air carriers, where, under the MC99, the amount of compensable damages is subject to the burden of proof by the claimant to show evidence upon the quantum of damages sustained. Therefore, exempting the claimant from the burden of proof upon the amount of damages – who, nonetheless, shall be entitled to claim compensation, even though no damages sustained occurred – makes the indemnity under the EU Regulation to constitute a true penalty instead of compensatory, which contravenes the MC99 principle of restitution (recital 3 and art. 29 of MC99).

--

Exclusivity principle,Air Carrier liability/accident,Passengers’ rights,Air Carrier/industry protection oriented convention,Consumer protection oriented convention

• Direito - Ciências Sociais