Venezuela Moves Towards the Montreal Convention: Legal Implications for International Air Carriage
On 3 November 2026, the National Assembly took up, in first discussion, the Bill approving the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999. At treaty level, the bill marks the most significant change to the carrier liability regime applicable in Venezuela since the Hague Protocol. Its approval would bring Venezuela into the instrument that already governs international carriage for more than 140 parties and, in relations with those parties, displace the Warsaw system.
The current regime
At treaty level, Venezuela remains within the Warsaw system. It acceded to the Warsaw Convention of 1929 in 1955, and it is a party to the Hague Protocol of 1955 and to Montreal Additional Protocols Nos. 1 and 2, which express the limits in Special Drawing Rights. It signed but never ratified Montreal Protocol No. 4 on cargo.
The Civil Aeronautics Law of 2009 created a parallel regime of domestic source. Articles 100 and 101 borrowed several of the original figures of the Montreal Convention, but not its structure. They set up to 100,000 SDR for death or permanent total disability, with lower ceilings for partial disability, and 4,150 SDR for delay or cancellation. For baggage and cargo, they set 1,000 SDR for hand baggage and 17 SDR per kilogram for checked baggage and cargo. Article 105 declares null any clause setting lower limits, and Article 106 removes the benefit of the limits on proof of wilful misconduct or fault of the carrier’s management or employees.
That regime departs from the Convention in three respects. First, its limits have remained frozen at those figures, while the limits under the Convention have been revised by ICAO in 2009, 2019 and 2024. Since 28 December 2024, they stand at 151,880 SDR, 6,303 SDR, 1,519 SDR and 26 SDR per kilogram. Second, its structure is different: under the Law, 100,000 SDR is a ceiling that falls on proof of wilful misconduct or fault (Article 106). Under the Convention, it is the threshold of strict liability, above which liability is unlimited unless the carrier disproves negligence. Third, its breakability standard is broader. Under Venezuelan law the limits yield to simple fault. Under the Convention, the limits for delay and baggage can only be broken by intent or recklessness with knowledge that damage would probably result (Article 22(5)), and the cargo limit is unbreakable.
What the Convention changes
Two-tier liability for passengers. Under Article 21, the carrier cannot exclude or limit its liability for death or bodily injury up to 151,880 SDR, save for contributory negligence of the claimant (Article 20). Above that threshold, liability is unlimited unless the carrier proves that the damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents, or that it was solely due to that of a third party.
Exclusivity. Under Article 29, any action for damages, however founded, whether under the Convention, in contract, in tort or otherwise, can only be brought subject to its conditions and limits, and punitive, exemplary or any other non-compensatory damages are not recoverable. This is likely to be the provision with the greatest practical impact in Venezuela. In decision No. 1126 of 3 August 2012, the Constitutional Chamber of the Supreme Tribunal of Justice declined to review a judgment of the Civil Cassation Chamber in an overbooking claim. In doing so, it endorsed the application of the Civil Code (Articles 1185 and 1196) to conduct falling outside Articles 100 and 101 of the Civil Aeronautics Law. Whether that line of authority survives the Convention will depend on how Venezuelan courts apply Article 29. It will also depend on whether denied boarding is characterised as delay or as non-performance falling outside the Convention. Brazil’s Federal Supreme Court has held that the Warsaw and Montreal Conventions do not apply to non-pecuniary damages arising from international air carriage contracts (Tema 1240, 2022). That experience shows that the question is far from academic.
Jurisdiction. Article 33(2) adds a fifth forum for claims arising from death or injury: the State Party in which the passenger had his or her principal and permanent residence at the time of the accident. Two conditions apply. The carrier must operate services to or from that State, on its own aircraft or under a commercial agreement. It must also conduct its business there from premises leased or owned by itself or by a carrier with which it has a commercial agreement.
Time limits and notice. The right to damages is extinguished if an action is not brought within two years (Article 35), against three years under Article 107 of the Civil Aeronautics Law. The difference is not only one of length: the Convention provides that the right to damages is extinguished, not that the action prescribes, although the method of calculating the period is left to the law of the court seised (Article 35(2)). Written complaints must be made within 7 days of receipt for damage to checked baggage and 14 days for damage to cargo. In the case of delay, the period is 21 days from the date on which the baggage or cargo was placed at the disposal of the person entitled to delivery (Article 31). Failing this, no action lies against the carrier, save in the case of fraud.
Electronic documentation. Articles 3 and 4 allow the ticket and the air waybill to be replaced by any other means that preserves the relevant information or a record of the carriage. Articles 3(5) and 9 provide that non-compliance with documentary requirements affects neither the validity of the contract nor the application of the limits. Under the Warsaw-Hague regime, by contrast, a carrier that consents to cargo being loaded without an air waybill loses the benefit of the cargo limit. The Convention thus provides, for the first time, a secure treaty basis for electronic air waybills on routes between Venezuela and other States Parties.
Insurance and advance payments. Article 50 requires States Parties to oblige their carriers to maintain adequate insurance covering their liability under the Convention. Article 28 provides for advance payments in the event of an aircraft accident, where the carrier’s national law so requires.
Interaction with domestic law
The Convention applies only to international carriage as defined in Article 1(2), including domestic sectors performed as part of a single international operation (Article 1(3)). Purely domestic flights will remain subject to the Civil Aeronautics Law. The result is a dual regime, which makes a reform of Articles 100 and 101 advisable to align domestic limits with current international figures.
The General Conditions of Air Carriage, issued by Administrative Order No. PRE-CJU-GDA-308-24 (Official Gazette No. 43,000 of 5 November 2024), raise a separate question. Their standardised assistance measures, such as care and refunds, operate as an administrative consumer protection regime. In IATA and ELFAA (C-344/04, 10 January 2006), the Court of Justice of the European Union held that standardised and immediate assistance and care measures are not among those regulated by the Convention and cannot, therefore, be regarded as incompatible with it. Following that reasoning, there are solid grounds to argue that such measures can coexist with Article 29. The provisions on baggage compensation and complaint periods, by contrast, will need to be read subject to Articles 17(3), 22, 31 and 35 in international carriage.
Next steps
Under Article 207 of the Venezuelan Constitution, the bill requires a second discussion before it can be sanctioned. Under Article 217, the timing of promulgation of a law approving an international treaty is left to the discretion of the National Executive. Once the law is published in the Official Gazette, the President would execute the instrument of accession (Article 236(4) of the Constitution; Article 53(4) of the Convention) for deposit with ICAO. Under Article 53(7), the Convention would take effect for Venezuela sixty days following the date of deposit.
For carriers, the Convention offers a liability regime aligned with the rest of their international networks, limits reviewed every five years by reference to an inflation factor (Article 24) and a more predictable exposure. For passengers, it offers higher limits, unlimited liability for death and injury above the first tier and an additional forum. For the Venezuelan market, it offers legal certainty on the terms the international industry already knows. Carriers operating in Venezuela should review their conditions of carriage, claims procedures and insurance programmes now, in anticipation of the Convention’s entry into force.
Diego Berrizbeitia Grand
Aviation
Clyde & Co
