Comparative Study of Legal Developments in The Field of International Air

Carrier Liability

ARTICLE FOR THE SUBJECT AIR & SPACE LAW

SUBMITTED BY Archit Bohra (09BAL069) Semester X B.A.LL.B. (Hons.)

UNDER THE GUIDANCE OF Mr. U. VARDHRAJAN Asst. Prof., ILNU Submitted to INSTITUTE OF LAW NIRMA UNIVERSITY, AHMEDABAD

ACADEMIC YEAR (2013-14)

Abstract There are international laws in existence that provide a world-wide system of standards and rules for air travel and in particular, common rules regarding minimum liability limits for the carriage of passengers, cargo and luggage in the event of death, injury, damage, delay or loss. This project highlights the systematic and timely development of these laws and their importance in the aviation sector for the welfare of both the passengers and the carrier at large. The project stars with Warsaw convention of 1929 and traces the developmental history up to the Montreal convention of 1999.

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Introduction There are international laws in existence that provide a world-wide system of standards and rules for air travel and in particular, common rules regarding minimum liability limits for the carriage of passengers, cargo and luggage in the event of death, injury, damage, delay or loss. These laws were first agreed and introduced worldwide in 1929. The first international law introduced is known as the Warsaw Convention (1929). Over the years, there have been a number of changes to and reviews of the original Warsaw Convention, including increases in the monetary liability limits. These subsequent amendments together with the original Warsaw Convention are known collectively as the Warsaw System. Over time the liability limits became too low by present-day standards. In addition, the laws governing airline liability become fragmented and very confusing as some countries had not introduced all the various amendments to the original laws. The Montreal Convention (1999), titled the Convention for the Unification of Certain Rules for International Carriage by Air amended the Warsaw System. It re-established uniformity and predictability of the rules relating to the international carriage of passengers, luggage and cargo. It provides, among other things, for:
1. 2. 3.

Unlimited liability in the event of death or injury of passengers Advanced payments to meet immediate needs The possibility of bringing a law suit before the courts in the passenger's principal place of residence Increased liability limits in the event of delay The modernization of transport documents (electronic airway bills and tickets) The clarification of the rules on the respective liability of the contractual carrier and the actual carrier The obligation for air carriers to maintain adequate insurance

4. 5. 6.

7.

Under the Montreal Convention the liability limits are set in Special Drawing Rights (SDR) which is a mix of currency values established by the International Monetary Fund (IMF). The current value of an SDR in Euro is available on the IMF's website . The liability limits are reviewed every 5 years.

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The Warsaw system The first convention dealing with matters related to air transport is the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929. It imposed liability on the carrier towards the passengers for death and bodily injury, delay of passengers as well as for damage to and/or loss of baggage. Over the years attempts were made to increase the level of the carriers liability as set forth in the Warsaw Convention. This resulted in several conventions: the Protocol done at The Hague on 28 September 1955, the Convention done at Guadalajara on 18 September 1961. Further, reference should be made to the Guatemala City Protocol 1971 and the Montreal Protocol no. 1, 2 and 3 of 1975, as well as some private law agreements. They all intended to increase the liability limit, as the combination of conventions and additional agreements had resulted in a fragmentation of the international law dealing with international carriage by air. This created a situation where determining as to which variant of the Warsaw system is applicable in a specific case became a rather complex exercise. Passengers, and even some lawyers, could not see the wood for the trees anymore. The Warsaw Convention is an international convention which regulates liability for international carriage of persons, luggage or goods performed by aircraft for reward. Originally signed in 1929 in Warsaw, it was amended in 1955 at The Hague and in 1975 in Montreal. United States courts have held that, at least for some purposes, the Warsaw Convention is a different instrument from the Warsaw Convention as Amended by the Hague Protocol. In particular, the Warsaw Convention: 1. Mandates carriers to issue passenger tickets; 2. Requires carriers to issue baggage checks for checked luggage; 3. Creates a limitation period of 2 years within which a claim must be brought (Article 29); and 4. Limits a carrier's liability to at most: a. 250,000 Francs or 16,600 Special Drawing Rights (SDR) for personal injury; b. 17 SDR per kilogram for checked luggage and cargo, or $20USD per kilogram for non-signatories of the amended Montreal Protocols. c. 5,000 Francs or 332 SDR for the hand luggage of a traveler.

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SCOPE of WARSAW CONVENTION ARTICLE 1: 1. This Convention applies to all international carriage of persons, luggage or goods performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking. 2. For the purposes of this Convention the expression "international carriage" means any carriage in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another Power, even though that Power is not a party to this Convention. A carriage without such an agreed stopping place between territories subject to the sovereignty, suzerainty, mandate or authority of the same High Contracting Party is not deemed to be international for the purposes of this Convention. 3. A carriage to be performed by several successive air carriers is deemed, for the purposes of this Convention, to be one undivided carriage, if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within a territory subject to the sovereignty, suzerainty, mandate or authority of the same High Contracting Party. Article 2 1. This Convention applies to carriage performed by the State or by legally constituted public bodies provided it falls within the conditions laid down in Article 1. 2. This Convention does not apply to carriage performed under the terms of any international postal Convention.

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Object of Warsaw Convention: The central purpose of the Warsaw Convention is to limit the liability of air carriers. The Warsaw Convention establishes: 1. The liability of international air carriers for harm to passengers, baggage, or goods; 2. Fixes limitations on such liability; and 3. Achieves a degree of uniformity in documentation and in the procedures and substantive law applicable to claims arising out of international air carriage. There are three types of claims, set out in Chapter III of the Warsaw Convention, to which liability attaches: 1. Those claims based on personal injuries (Article 17); 2. Those claims based on lost or damaged luggage (Article 18); and 3. Those claims based on damages due to delays in transportation (Article 19). Article 17 : Article 17 of the Warsaw Convention sets forth conditions under which an international air carrier can be held liable for injuries to passengers. Article 17 provides that the carrier is liable for damage sustained in the event of a death or a wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Thus, under Article 17, an air carrier is liable for passenger injury only when the following three conditions are satisfied: 1. There has been an accident, in which 2. The passenger suffered death, physical injury, or physical manifestation of injury, and 3. The accident took place on board the aircraft or in the course of operations of embarking or disembarking.

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Article 18: Article 18 provides that a carrier will be liable for damage sustained in the event of the destruction, loss of, or of damage to any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air. Article 19: Pursuant to Article 19, a carrier will be liable for damage occasioned by delay in the transportation of passengers by air, baggage, or goods. Pursuant to Article 25, a carrier will not be entitled to avail himself/herself of the provisions of the Warsaw Convention which exclude or limit his/her liability when it is shown that the damage suffered by the claimant was caused by the carriers willful misconduct, as defined by the law of the forum court. The Warsaw Convention precludes passengers from maintaining an action for damages for personal injury under local law when the claim did not satisfy the Conventions conditions for carriers liability for international air transportation. Article 29 of the Warsaw Convention provides a two-year statute of limitations. Pursuant to Article 29, the right to damages will be extinguished if an action is not brought within two years from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the transportation stopped. Legal Development in The Time Period Between Warsaw and Montreal Conventions: The Warsaw Convention of 1929 was amended on 28 September 1955 by The Hague Protocol. The limit of liability with respect to persons had been doubled to 250,000 francs; in other respects, the Protocol made only minor adjustments or clarifications, and contributed to some simplifications of the documents of carriage. The Hague Protocol to the Warsaw Convention entered into force on 1 August 1963. Formally entitled Convention Supplementary to the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person other than the Contracting Carrier, a new convention was developed and signed at Guadalajara, Mexico, on 18
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September 1961; it was necessitated by the modern modalities of transport when a person was not a party to the agreement for carriage. It entered into force on 1 May 1964. Early in the 1960s, it became clear that the United States were not prepared to ratify The Hague Protocol of 1955 as they considered the liability limits for carriage of persons in the said Protocol too low. In 1965, this led the United States to announce its withdrawal from the 1929 convention, effective as of 15 May 1966. The solution arose in the form of the Montreal Agreement of 1966, signed on 13 May 1966 under the auspices of the International Air Transport Association (IATA). This is not a convention or a protocol, but an agreement between the American Civil Aeronautics Board (CAB) and the air carriers operating passenger transport with a stopping place in the USA. Pursuant to the Montreal Agreement the airline companies adjusted their conditions of carriage and set out that the liability limit with regard to death, wounding or other personal injury suffered by a passenger would be US$ 58,000 exclusive of legal costs and US$ 75,000 including legal costs. The United States revoked the withdrawal from the 1929 convention at the last minute. An inter-governmental agreement addressing the limits of liability and profoundly modernizing the entire Warsaw Convention as amended by The Hague Protocol was reached, at the Diplomatic Conference attended by 55 States, with the adoption of the Guatemala Protocol signed on 8 March 1971. The Guatemala Protocol contained a number of controversial points: the liability limit for passenger claims was substantially increased and fixed limits were introduced (i.e. it is not possible to break the limits), the force majeure defence was removed in relation to passenger claims, and the fifth jurisdiction (i.e. the court of the place of residence of the passenger) was introduced. This Protocol never came into force. In 1975, another Diplomatic Conference on International Air Law was held in Montreal under the auspices of ICAO. This resulted in the adoption of four Protocols (the Montreal Protocols of 1975) signed on 25 September 1975 amending the Warsaw Convention, and The Hague and Guatemala Protocols. These Protocols amended the increased liability limit found in the Guatemala Protocol, altered the monetary measurement from gold to Special Drawing Rights, and eliminated outdated documentary requirements with respect to the transport of cargo.

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The International Air Transport Association (IATA) convened a worldwide Airline Liability Conference in Washington, D.C., USA, from 19 to 23 June 1995. The report of the Conference proposed the establishment of two working groups to further study and prepare drafts for a proposed intercarrier agreement, as follows: 1. To urgently assess and report on the cost impact on airlines of an enhanced liability package; 2. To further consider and report on appropriate and effective means to secure complete compensation for passengers, when required. At the same conference, the draft of the IATA Intercarrier Agreement on Passenger Liability was adopted, by which the airlines who signed this agreement would undertake to waive the liability limits and limit the force majeure defence in regard to passenger claims. Later, the IATA Measures of Implementation Agreement was developed and finalized. The successive modifications of the 1929 Convention, coupled with increasing mobility of passengers and the globalization of the air transport industry, have resulted in a high level of complexity and fragmentation of the Warsaw System, and a corresponding loss of relevance for the travelling public and the air transport industry. The above developments finally led to the ICAO seeking to draw up a new convention to replace the Warsaw System. The ICAO Legal Committee, at its 30th Session held in Montreal from 28 April to 9 May 1997, approved the text of a draft Convention for modernizing the Warsaw System of air carrier liability, to be adopted later by a Diplomatic Conference. At the International Conference on Air Law held in Montreal from 10 to 28 May 1999, the new Montreal Convention, formally entitled Convention for the Unification of Certain Rules for International Carriage by Air, was signed on 28 May 1999. This new convention, intended to replace the above-described Warsaw System, came into force on 4 November 2003. The obvious innovation is that the Montreal Convention now presents a single legal instrument, instead of a patchwork provided under the antiquated Warsaw System (i.e. a collection of six different legal instruments). Some 525 participants from 121 Contracting States, one non-Contracting States and 11 international organizations took part in this historic three-week conference.

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The Montreal Convention 1999: The limits of liability as set by the Warsaw system were increasingly considered to be widely insufficient when compared with todays economic and social standards. As a result, further attempts were made to increase the liability limits. Moreover, the need was felt to have the Warsaw system reviewed and revised into a more uniform system. This resulted in the Convention for the Unification of Certain Rules for International Carriage by Air, signed at Montreal on 28 May 1999. The Montreal Convention has radically changed the Warsaw system as it concerns the liability limits in case of death and injury : under the Montreal Convention there is a regime of unlimited liability of the air carrier in the event of death or bodily injury of a passenger, partly even as strict liability. It is important to note that the Warsaw system still exists alongside the Montreal Convention, as by now approximately half of the states (some 78) that ratified the Warsaw system in one or more of its variants have ratified the Montreal Convention. The Montreal Convention, formally the Convention for the Unification of Certain Rules for International Carriage by Air, is a treaty adopted by a Diplomatic meeting of ICAO member states in 1999. It amended important provisions of the Warsaw Convention's regime concerning compensation for the victims of air disasters. The Convention re-establishes urgently needed uniformity and predictability of rules relating to the international carriage of passengers, baggage and cargo. Whilst maintaining the core provisions which have successfully served the international air transport community for several decades (i.e. the Warsaw regime), the new convention achieves the required modernisation in a number of key areas. It protects passengers by introducing a two-tier liability system and by facilitating the swift recovery of proven damages without the need for lengthy litigation. The Convention for the Unification of Certain Rules for International Carriage by Air drafted in Montreal (Montreal Convention) amended the Warsaw Convention. Pursuant to the Montreal Convention, a carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. The Montreal Convention applies only to international carriage of persons, baggage, or cargo that

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originates in the territory of one of the states party to the Convention and terminates in that of another. In comparison to the Warsaw Convention, the Montreal Convention has been described as a treaty that favors passengers rather than airlines. The Montreal Convention provides four grounds upon which a court may base its jurisdiction. A plaintiff may bring an action in the U.S. for damages pursuant to the Montreal Convention only when the U.S. is: 1. The domicile of the carrier; 2. The principal place of business of the carrier; 3. The place where the carrier has a place of business through which the contract has been made; 4. The place of destination; or 5. The principal and permanent residence of the passenger.

The liability regime of the Montreal Convention Article 17( liability for death and bodily injury): Article 17 (1) of the Montreal Convention reads as follows: The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. It is stated in article 21 (1) of the Montreal Convention that the carrier shall not be able to exclude or limit its liability with regard to damages arising under article 17 (1) and not exceeding 100.000 Special Drawing Rights. This implies that up to this amount the Montreal Convention imposes strict liability on the carrier. According to article 22 (2) of the convention the carrier shall not be liable for any damage exceeding this amount, if he proves that: 1. such damage was not due to the negligence or other wrongful act or omission of the carrier, its servants or agents, or
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2. such damage was solely due to the negligence or other wrongful act or omission of a third party.

Bodily injury: Article 17 (1) further requires the damage to be death or bodily injury. According to a decision of the US Supreme Court in 1991 only some kinds of psychological damage which are related to the bodily injury, as opposed to psychological damage sec, qualify for compensation under article 17. However, when considering the course of the discussions and decisions at the ICAO International Conference, it appears that the term bodily should not be interpreted too strictly: by using the term bodily it was not intended to interfere with jurisprudential developments with regard to psychological injury suffered as a result of the bodily injury caused by an accident. In the procedure in the Dutch Parliament regarding the approval of the Montreal Convention, it was mentioned that for that purpose developments in other areas than international air carriage should be taken into consideration as well. Location of the accident: on board, or during (dis-embarking ) The carrier is liable when the damaging event occurs on board the aircraft or in the course of any of the operation of embarking or disembarking. Also on this aspect discussions may arise as to whether a strictly literal or a more liberal interpretation has to be followed. When looking at the objective of the Montreal Convention in conjunction with, for instance, the fact that due to the fear for terrorist attacks security checks are no longer conducted at the gate but already at the entrance of the terminal, such checks may well be considered as a part of the boarding procedure. Hence, the conclusion of such discussions might be that the carrier is to be held liable for bodily injury sustained during such security checks. Liability for delay Article 19 of the Montreal Convention provides: The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it

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and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures. However, the convention does not define the meaning of the term delay. Article 22 (1) stipulates that in the case of damage caused by delay as specified in article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4150 Special Drawing Rights. This limit does not apply, thus article 22 (5), if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of the employment.

Article 29(Restriction of the right to compensation): It cannot be denied that the Montreal Convention is a remarkable change of position towards the problem of the liability of the air carrier: it is overtly consumer-oriented. However, things are seldom what they seem. The possibilities for the passenger are not unlimited. In the preceding paragraphs it has already been noticed that the interpretation of the terms accident, bodily injury and delay is decisive. Another question is whether the passenger is still entitled to compensation in cases that cannot be qualified under article 17 or 19 of the Montreal Convention. In that respect we enter the scope of article 29 of the Convention. It is headed Basis of claims. In fact, it provides for exclusivity when damage due to air carriage is involved. It is worded: In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under the Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damage shall not be recoverable.

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In some court decisions it was held that this question has to be answered in the negative, as this provision implies that a passengers claim for damages must fall within the scope of article 17 respectively 19 of the Convention.

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Conclusion The Montreal Convention of 1999 moves the international aviation community past the patchwork system of liability stemming from the original Warsaw Convention and establishes a comprehensive liability regime for air carriers engaged in international carriage. The Convention provides a much needed limit on liability for delay and sets forth clear limits on liability for lost or damaged baggage and cargo. In addition, the Montreal convention simplifies documentation requirements by embracing electronic ticketing and air waybills, which should eliminate litigation regarding the adequacy of travel documents. One of the most significant aspects of the Montreal Convention is the new liability limit for passenger injury or death. Under the new liability regime, air carriers will be held absolutely liable for the first 100,000 SDR of damages, even if the damage was caused by a third party, so long as the injury producing event meets the conditions of liability under article 17 and was not contributed to by the passenger. The U.S. Department of state has hailed this new passenger liability regime as the culmination of years of work by the United states to increase, and later eliminate what if viewed as the unconscionably low liability limits applicable under the Warsaw System. The Montreal convention of 1999 only applies to international transportation occurring between two (or more) states which are parties to the convention. Fortunately, because there have been no major international air disasters over the past few years, the international aviation law community has not yet seen the Montreal convention principles applied fatalities and commercial aviation continues to be an extremely safe mode of travel. Nonetheless, accidents are a practical inevitability and at some point in the reasonably near future, we will see the Montreal convention liability regime applied to a real world set of facts. Summing up the present situation we cannot but conclude that it presents many unsatisfactory aspects: different limits may apply to passengers travelling on the same aircraft but to different destinations; when travelling to or from a state which is not a party to the Warsaw Convention the may receive full compensation for damage, as the limits of Warsaw convention are not applicable. It is not at all unusual for transport to take place between two states, one of which has adhered to the Hague Protocol, whereas the other has only ratified the Warsaw Convention: the application of the two conventions may then cause complications. Most of these problems relate to the fact that the unification of the rules provided by the Warsaw Convention for the carriage of passengers, baggage
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and goods has been adversely affected by the multitude of amendments. Such adverse effects were heightened by the divergent interpretations of some of its terms in both the continental and AngloSaxon legal systems, as well as in the judicial ruling in various countries. Meanwhile notwithstanding all complications the old convention is still functioning on a worldwide basis; its rule operates for benefit of passengers and carrier alike. The carriers are fully aware of their responsibilities, against which insurance can be arranged; the passengers know what to expect in case of injury or damage. If they are not satisfied with the limits of compensation they can take out their own additional insurance policy. The situation even becomes more complicated now that there is new Montreal Convention. Article 55 of this convention states that it will prevail, as between ratifying state parties, over any rules which apply to international carriage by air of the Warsaw Convention, the Hague Protocol and the Guadalajara Convention, tries to overcome the problem of the two treaties being applicable next to each other. Nevertheless an area for conflicting rules will still be possible where only one ratifying state is involved in the international carriage.

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References and Bibliography: The Montreal Convention: The scram jet of aviation law by Gary A. Gardener and Brian C. McSharry. The Montreal Convention of 1999: American Bar Association, Aviation Litigation seminar June 3, 2005 Convention for the unification of certain rules relating to international carriage by air, signed at Warsaw on 12 October 1929 An introduction to air law by Dr. I. H. Ph. Diederiks-Verschoor The Hague Protocol, 1955 The Guatemala city Protocol, 1971 Convention Supplementary to the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person other than the Contracting Carrier, Signed in Guadalajara on 18 September 1961 - Guadalajara Convention 1961 Fordham Journal of Corporate & Financial Law Vol. XII

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