“Reasonable Measures” to Avoid Flight DelayBordonaro c. Voyages David inc., 2011 QCCQ 3013 (CanLII)
Originally published on May 5, 2011 on the Alexander Holburn Beaudin + Lang LLP Aviation Law Blog: http://aviationlawblog.ahbl.ca/
Author: Alexander Holburn Beaudin + Lang LLP
In a recent decision, the Quebec Small Claims Court considered Alitalia’s actions during a flight delay in Italy. The Plaintiffs had sued Alitalia because the delay caused them to miss their connecting flight to Montreal, Quebec.
The Montreal Convention governs air carriers’ liability during international carriage. Article 19 of the Convention states that an air carrier will not be liable for damages for delay if it can prove that it took all reasonable measures to avoid the delay or that it was impossible for it to take such measures.
The determination of what constitutes “reasonable measures” has resulted in inconsistent decisions in different jurisdictions.
Alitalia produced evidence that its flight was delayed by a mechanical problem, which was identified shortly before departure. The aircraft was repaired as quickly as possible but departure was delayed almost 3 hours. As a result, the Plaintiffs arrived in Rome less than an hour before their connection to Montreal. Because the mechanical problem surfaced shortly before the departure time and repairs were made promptly, the Court ruled that this was a case of force majeure, for which the airline was not liable. The Court concluded that Alitalia had proven that it had taken all reasonable measures to avoid the delay.
A previous decision of the Court highlights the risk of liability if a carrier simply argues that the delay was unavoidable because it was caused by mechanical issues. In Durand v. Sunwing Vacations, the Plaintiffs claimed damages from Sunwing for a mechanical delay of 10 hours which caused them to miss one day of their vacation. Sunwing decided not to produce any witnesses to explain the cause of the mechanical failure or the delay caused by the repair. As a result, the court awarded damages to the Plaintiffs because Sunwing did not satisfy the burden of proof imposed by Article 19 of the Convention.