Court finds liability not limited under international aviation convention in Ukraine Airlines case

Litigation among few such cases tried under Montreal Convention, says lawyer

Court finds liability not limited under international aviation convention in Ukraine Airlines case
Joe Fiorante, Paul Miller

An Ontario Superior Court has found that Ukraine International Airlines’ (UIA) failed to prove it was not negligent for the PS752 disaster, which makes its liability unlimited under the governing convention.

S. v. Ukraine International Airlines JSC, 2024 ONSC 3303 dealt with the 2020 downing of flight PS752, which killed 176 people. Shortly after taking off from Tehran Imam Khomeini International Airport, members of Iran’s Islamic Revolutionary Guard Corps hit the plane with two surface-to-air missiles, killing all passengers and crew on board.

UIA is the defendant in 101 lawsuits and a class action arising from the incident. Most of the plaintiffs are suing under the Montreal Convention for the Unification of Certain Rules for International Carriage by Air, 1999.

While the parties agree that under the Montreal Convention, UIA was strictly liable for the accident, the airline argued it was not negligent, which would cap damages. Justice Jasmine Akbarali concluded that UIA had not proven on a balance of probabilities that it was not negligent in allowing the flight to depart Tehran that day.

S. v. Ukraine International Airlines is among the few liability cases that has been tried under the Montreal Convention, which has significance internationally, says Joe Fiorante, who acted for a plaintiff along with Paul Miller, Jamie Thornback, and Valérie Lord.

“Most aviation cases settle. And if they don't settle, there's a few preliminary rulings – often on points of law – through the Montreal Convention. But this is one of the first fully contested trial decisions on a claim of negligence from the convention.”

The case was also one of the first trial decisions where the court had to determine whether the plane crash occurred within a conflict zone, says Miller.

“Given today's geopolitical climate, with conflicts being waged in many different parts of the globe… that's another very significant part of this case,” adds Fiorante.

Fiorante practises at Camp Fiorante Matthews Mogerman LLP, and Miller is co-managing partner at Howie Sacks and Henry LLP.

Canada incorporated the Montreal Convention via the Carriage by Air Act. According to the Supreme Court of Canada in Thibodeau v. Air Canada, 2014 SCC 67, the purpose of the convention is to establish uniform rules governing legal claims arising from international transportation and to balance the liability-limiting protection for airlines with the interests of passengers and others seeking recovery.

Under article 21 of the convention, liability is limited to $230,000 if UIA proves the damages are “not due to the negligence or other wrongful act or omission of the carrier…” or “was solely due to the negligence or other wrongful act or omission of a third party.” Article 21 creates a reverse onus on UIA to establish it was not negligent, said Akbarali.

 

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