Lost & Found Baggage Lost in Translation

April 06, 2020

Lost & Found Baggage Lost in Translation

April 06, 2020

Radovan Grbović

Radovan Grbović

Partner

Ivan Nikolić

Ivan Nikolić

Senior Associate

It’s not uncommon that, when statutes get enacted, we notice minor mistakes made by the legislators. On a rare occasion, when international treaties are ratified, we will witness bad translations of those treaties, resulting naturally in their wrong implementation by the local authorities. Having two different states make exactly the same translation error of a convention seems like an impossible coincidence – yet this is exactly what happened in Serbia and Montenegro.

The Convention for the Unification of Certain Rules for International Carriage by Air (“Montreal Convention”) was ratified in Serbia with the Act on Ratification of the Convention for the Unification of Certain Rules for International Carriage by Air (Zakon o potvrđivanju Konvencije o objedinjavanju izvesnih pravila za međunarodni prevoz vazdušnim putem, Official Gazette RS – International Treaties, no. 38/2009) on 25 May 2009, and in Montenegro with the Act on Ratification of the Convention for the Unification of Certain Rules for International Carriage by Air (Zakon o potvrđivanju Konvencije o objedinjavanju određenih pravila za međunarodni prevoz vazduhom, Official Gazette RS – International Treaties, no. 4/2009) on 19 October 2009. Both Acts adopted Montreal Convention in its original text and official translation thereof.

However, both Acts made the same material mistakes in translation of Article 22 para. 6 of Montreal Convention in the following sentence: The limits prescribed in Article 21 and in this Article shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff, including interest.

Relevant translations in both Serbia and Montenegro offer the following wording: Ograničenja propisana u članu 21. i u ovom članu ne sprečavaju sud da u skladu sa svojim nacionalnim zakonom donese presudu o naknadi štete, kao i celokupne ili deo sudskih troškova i drugih troškova parničenja kojima se izložio tužilac, uključujući i kamatu. Or back-translated in English: The limits prescribed in Article 21 and in this Article shall not prevent the court from passing, in accordance with its own law, judgment on awarding damages, as well as the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff, including interest.

Such mistranslation of indicated provision materially alters the meaning of the Montreal Convention. Instead of benefitting from the limitation of liability, the airlines operating in Serbia and Montenegro could be held fully liable for damages in case of a delayed flight, or delay, damage or loss of passenger’s baggage. This is a practical problem – we at SOG encountered precisely this kind of a situation where a party to the proceedings invoked this mistranslated provision to avoid the limitation of damages.

In this regard, SOG submitted to the Serbian Ministry of Construction, Transportation, and Infrastructure and Montenegrin Ministry of Transportation and Maritime two initiatives for rectification of the translation of the Montreal Convention. We will inform the public and our clients on the outcome of these initiatives accordingly.

 

This text is for informational purposes only and should not be considered legal advice. Should you require any additional information, feel free to contact us.

Contact:

Radovan Grbović, Partner
radovan.grbovic@sog.rs

Ivan Nikolić, Senior Associate
ivan.nikolic@sog.rs

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