Flight Delay: Can a Travel Agency Invoke the Montreal Convention?

You are at Avignon airport, heading to Paris, and your flight is already two hours late. You think of your appointment with the notary in Cavaillon, who is waiting for you to sign the deed of sale for your house. Who is responsible? The airline? The travel agency that issued the ticket? And if the delay is due to unforeseen technical constraints, can you obtain compensation?

This seemingly ordinary question gave rise to an important decision by the Court of Cassation in 2013. It concerns international air transport and the application of the Montreal Convention, an international treaty that unifies the liability rules of carriers. The issue: whether a travel agency, which is not the airline, can rely on the grounds for exemption provided by this Convention to avoid a claim for damages.

In this article, I will explain simply the facts, the judges' reasoning, and above all what this changes for you, whether you are a passenger, a tourism professional, or simply curious. Get ready to discover the behind-the-scenes of an air transport dispute that affects thousands of travellers every year, from Pertuis to Cavaillon.

The Facts: A Story Like Many Others

Imagine: Mr. Dupont, an estate agent from Pertuis, organises a group trip for his clients to attend a trade fair in New York. He contacts the travel agency "Bailly Voyages", which offers him a charter flight operated by "Carte Blanche". The ticket is issued by the agency, and Mr. Dupont pays the fare on behalf of his clients.

On the day of departure, at Bordeaux airport, the flight is several hours late. Result: the clients miss their connection in New York and suffer loss (additional hotel expenses, loss of the first day of the fair). Mr. Dupont, who had to reimburse his clients, turns against the agency Bailly Voyages to obtain compensation.

The agency, for its part, invokes a technical reason: the aircraft was not available at the scheduled time due to a rotation imposed by the airline, which made it "impossible" to adhere to the schedule. It considers that it is only bound by an obligation of means, not of result. In other words, it did everything possible, but the delay was unavoidable.

The dispute comes before the Court of Appeal, which orders the agency to pay damages. The agency appeals to the Court of Cassation. The Court of Cassation, in its judgment of 13 March 2013, quashes the Court of Appeal's decision and remands the case. Why? Because the Court of Appeal had applied the rules of general law (Article 1148 of the Civil Code on force majeure), whereas the Montreal Convention, which is exclusive, should have been applied.

The Reasoning of the Court — Explained

The High Court recalls a fundamental principle: in matters of international air transport, the Montreal Convention of 28 May 1999 applies exclusively. This means that judges cannot use the provisions of the Civil Code to assess the carrier's liability. Specifically, Article 19 of the Convention provides that the carrier is liable for damage resulting from delay, unless it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage, or that it was impossible for them to take such measures.

In this case, the question was whether the travel agency, which is not the airline, could be considered a "contracting carrier" within the meaning of the Convention. The Court of Cassation answers yes, because the agency had chartered the aircraft and issued the tickets. It is therefore in the same position as a direct carrier.

Next, the Court criticises the Court of Appeal for not having verified whether the agency could invoke the grounds for exemption provided for in Article 19. The lower courts must examine whether the rotations imposed by the airline constituted an unforeseeable and irresistible circumstance, making it impossible to adhere to the schedule. By placing liability on the agency without this analysis, the Court of Appeal violated the Convention.

This decision confirms consistent case law: international law prevails over domestic law, and transport professionals (including agencies) benefit from a specific liability regime, more protective than general law. But beware: the exemption is not automatic. The carrier must prove that it took all reasonable measures.

What This Changes for You — Practically

For passengers, this decision means that your claim against a travel agency for a delay is governed by the Montreal Convention. If you book a charter flight through an agency and the flight is delayed, you cannot rely on the Civil Code to claim damages. The agency may be exonerated if it demonstrates that it took all reasonable measures. For example, if the delay is due to an unforeseeable technical fault, you may get nothing.

For tourism professionals, it is rather good news. You can invoke the same grounds for exemption as airlines. But you must be able to prove your diligence. Keep written records of your exchanges with the carrier, evidence of technical constraints, and the actions you took to mitigate the loss.

Let's take a concrete example: a couple from Cavaillon books a trip to Barcelona via a local agency. The charter flight departs three hours late due to a strike by the airline's staff. Can the agency be exonerated? Yes, if it proves that the strike was unforeseeable and that it did everything to find a solution (for example, offering an alternative flight or a refund). If it proves nothing, it will be condemned.

In practice, the amounts at stake vary. For a 3-hour delay, the damage may be estimated at €200-400 per passenger (meal and hotel costs). But if the delay causes a missed cruise or important seminar, the amount can rise to several thousand euros.

If you are in this situation, you must verify whether the transport is international (within the meaning of the Convention) and whether the agency acted as a contracting carrier. Gather all documents: tickets, booking confirmation, correspondence with the agency, evidence of the delay and the loss.

Four Tips to Avoid This Type of Dispute

• Keep all evidence of the delay: Take a screenshot of the departure board, keep tickets and confirmation emails. Without proof, no claim is possible.
• Check the nature of the transport: If you book a charter flight through an agency, ask if it considers itself a contracting carrier. When in doubt, contact the airline directly.
• Report your loss immediately: Send an email to the agency or airline within 24 hours of the delay, detailing expenses incurred (hotel, meals, taxis). This will facilitate any legal action.
• Consult a lawyer before starting proceedings: The rules of the Montreal Convention are complex. An initial analysis can save you time and money. In Pertuis or Cavaillon, a lawyer specialising in transport law can advise you.

Further Reading: Related Case Law and Developments

This decision is part of a line of judgments affirming the primacy of the Montreal Convention over domestic law. For example, a judgment of the Court of Cassation of 9 November 2011 (No. 10-25.267) had already ruled that Article 19 applies exclusively to delays, excluding Article 1148 of the Civil Code.

However, there is a divergence on the notion of "contracting carrier". Some courts consider that a travel agency is not a carrier within the meaning of the Convention, unless it issues the tickets itself and assumes the risks of transport. The Court of Cassation, in the judgment commented on, adopts a broad interpretation: as soon as the agency charters the aircraft and issues the tickets, it is considered a carrier.

In the future, the courts will have to clarify the criteria for exemption: what is a "reasonable measure"? Is a technical fault always unforeseeable? The lower courts will have a key role in assessing the circumstances of each case.

Summary and Next Steps

FAQ:

1. Can I sue a travel agency for a flight delay? Yes, but under the Montreal Convention regime, not the Civil Code. The agency may be exonerated if it proves it took all reasonable measures.

2. What if the agency invokes a technical reason to avoid liability? Check whether the reason is truly unforeseeable and irresistible. If in doubt, ask for evidence. A lawyer can help you challenge it.

3. What is the time limit for bringing a claim? In air law, an action for liability is time-barred after two years from the arrival of the aircraft or the day on which the transport ought to have taken place (Article 35 of the Convention). Do not delay.

4. Can I obtain damages for non-pecuniary loss? Yes, if you prove a distinct loss (stress, loss of holiday). But the Convention often limits compensation to direct material loss.

5. Can the agency turn against the airline? Yes, by way of a recourse action. But this does not directly concern you: you sue the agency, and it is for the agency to pursue the actual carrier.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) may save you months of proceedings — and often much more. Book an appointment →