Faculty of Law McGill University

PRIVATE INTERNATIONAL AIR LAW

Professor Paul Stephen Dempsey
ASPL 636 - Fall 2014

Language of instruction: English Credits:

3

Course objective: This course seeks to introduce the students to the regime of
domestic and international liability in aviation, with an emphasis on international
liability law. Liability of airlines, air navigation service providers, airports, aircraft
manufacturers and governmental institutions are examined.

Description: This course examines the unification of private international air law
through the adoption of international conventions. In particular, it reviews the liability
of the air carrier towards passengers and shippers under the Warsaw Convention, as
amended and supplemented by several other international legal instruments,
including the Montreal Convention of 1999. The course also examines the basic
framework of several other conventions, such as the Rome Convention on surface
damage done by aircraft, and ICAOs recent initiatives to revise the 1952 Rome
Convention in the Montreal Conventions of 1999, as well as the liability exclusions for
airlines and crew set forth in the Tokyo Convention and amendments thereto.
Insurance aspects and implications of the air carriers international liability will also be
addressed.

Method of Evaluation: 80% of the grade will be based on the students

performance on a 24-hour take-home exam. The remaining 20% will be based on
the students performance in on a written 7-10 page essay comparing, contrasting
and analyzing material and/or cases discussed in the text with a case (or cases) not
discussed in the text which reached a similar or different conclusion. Essays shall
be double spaced with 12 point font for the text, and 10 point font for the footnotes,
with one-inch margins per page. Appended to the essay should be a copy of all
cases discussed in the students essay, except those addressed in the assigned
reading materials. The essay shall be due on the last scheduled day of class. Late-
submitted essays will have points deducted from their grade, depending upon the
degree of tardiness; essays submitted more than seven days late shall receive a
grade of zero.

Professor Information: 3690 Peel Street, Suite 203; Tel. 514-398-8370; Email:
paul.dempsey@mcgill.ca

Office hours: open door; or contact Ms. Maria DAmico at maria.damico@mcgill.ca

or 514 398-5095 to arrange for a meeting at mutually convenient day and time.
Also, do not hesitate to contact the Professor via e-mail or after class.

Visiting Lecturers: Several visitors have been invited to the class. The dates of
their presentations will be announced during the Semester

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OUTLINE:
I. INTRODUCTION - INTERNATIONAL CARRIAGE BY AIR
- Choice of law and jurisdictional problems
- Need for unification of law
- The instruments of the Warsaw System
- Conditions of carriage and carrier's tariffs
- Crisis of the Warsaw System
- New Convention of 28 May 1999
II. THE CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO
INTERNATIONAL CARRIAGE BY AIR
A. The Warsaw Convention (1929) and The Hague Protocol (1955)
1. Scope of Application
(a) International Carriage. Definition
(b) Concept of "High Contracting Parties"
- Carriage to which the Convention system applies
2. Documents of Carriage
(a) Passenger ticket
(b) Baggage check
(c) Airway bill
3. Period of Transportation
(a) Operations of embarking and disembarking (passengers)
(b) Period of transportation by air (baggage and cargo)
4. Air Carrier's Liability (passengers)
(a) Presumption of responsibility
(b) Nature of damage; "bodily injury"; punitive damages
(c) Concept of "accident"
5. Air Carrier's Liability (baggage and cargo)
(a) Registered baggage and cargo
(b) Non-registered baggage
6. Defences Available to the Air Carrier
(a) "All necessary measures"
(b) Contributory negligence
7. Limits of Liability
(a) In the Convention
(b) Montreal Agreement (1966)
(c) Rationale of the limitation of liability
(d) Current trends the 1999 Montreal Convention
8. Unlimited Liability of the Air Carrier
(a) Deficiencies in the documents of transport or their delivery
(b) Article 25 of the Warsaw Convention and The Hague Protocol
(c) Punitive damages in excess of the limit of liability
9. Notice of Claims and Time to Sue
10. Jurisdiction
11. Conflict of Laws within the System of the Warsaw Convention
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 B. The Guadalajara Convention (1961)
Problems of liability in international carriage by air performed by a person other than the
contracting carrier.

C. The Guatemala City Protocol (l971)

Amendments of the Warsaw Convention with respect to:
- documents of carriage
- basis of liability
- limit of liability
- unbreakability of the limit of liability
- settlement inducement
- jurisdiction
- domestic supplement

D. Additional Protocols 1, 2, 3 and 4 of Montreal (1974) and the Montreal Protocol

No. 4 (1975)
- gold clause and gold value clause
- demonetization of gold by the IMF
- Special Drawing Right of the IMF
- amendments with respect to carriage of cargo in Montreal Protocol No. 4 of
Montreal (1975)

E. Other Developments
- unilateral actions by States
- IATA Intercarrier Agreement on Passenger Liability (Kuala Lumpur 1995)
- The Agreement on Measures to Implement the IATA Intercarrier Agreement on
Passenger Liablity
- The IATA Conditions of Contract Passenger and Cargo
- The IATA Conditions of Carriage Passenger and Cargo
- initiatives in the European Union
- Draft Convention (1998) prepared by the ICAO Legal Committee
- Results of the 1999 Diplomatic Conference convened by ICAO the Montreal
Convention of 1999
- Analysis of the 1999 Convention and its entry into force in 2003

III. THE CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO

INTERNATIONAL CARRIAGE BY AIR THE MONTREAL CONVENTION OF 1999

1. Scope of application - Arts. 1 and 2

2. Transportation Documents
3. Liability of the Carrier
4. Combined Carriage Art. 38
5. Carriage performed by a person other than the Contracting Carrier
Art. 39 48
6. Other Provisions
7. Final Clauses Art. 53 - 57

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IV. THE ROME CONVENTION OF 1952 AND RELATED INSTRUMENTS

1. The Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface
Rome Convention of 1952
a. Scope of application
b. Aircraft operator's liability
(a) Nature of the liability
(b) Liability limits
(c) Jurisdiction
2. The Montreal Protocol of 1978Amending the Rome Convention
3. The Montreal Conventions of 2009 Damage Caused by Foreign Aircraft to Third Parties on
the Surface

BIBLIOGRAPHY

Course Materials:
Dempsey, P., Aviation Liability Law (2nd ed. Lexis/Nexis 2013) (relevant chapters to be posted on the
WebCT Blackboard)

Books
Annals of Air and Space Law, particularly vol. XXX No. 1 (2005).
Dempsey, P., & Milde, M., International Air Carrier Liability: The Montreal Convention of 1999, McGill
2005.
Dempsey, P., Hardaway, R. & Thoms, W., II Aviation Law & Regulation, Butterworths, 1993, Ch. 13-
14.
Gesell, L., & Dempsey, P., Aviation & the Law (4th ed. 2005), Ch. 19
Giemulla, Elmar, Schmid, Ronald, Warsaw Convention, Looseleaf, July 1994
Giemulla, Elmar, Schmid, Ronald, Montreal Convention Commentary, Looseleaf, Deventer,
Release Nov. 2011
Goldhirsch, Lawrence B., The Warsaw Convention Annotated: A Legal Handbook, Second
Edition, The Hague, September 2000.
Kreindler, L. & J, Aviation Accident Law, Rev. edition, New York 2007
Lowenfeld, A.F., Aviation Law, 2nd ed., 1981, Ch. 7.
Matte, N.M., Trait de Droit Arien-Aronautique, 3rd ed., 1981, Ch. I.
Miller, G., Liability in International Air Transport, 1977.
Mankiewicz, R., The Liability Regime of the International Air Carrier, 1977.
Shawcross & Beaumont, Air Law.
Tompkins, George N., Liability Rules Applicable to International Air Transportation As Developed
By the Courts in the United States: From Warsaw 1929 to Montreal 1999, Alphen an den Rijn,
March 2010.
Documents in Annals of Air and Space Law, Vol. XXX, Part 1 (2005)

Articles
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Dempsey, P., Carrier Liability for Loss & Damage of International Air Freight: Plaintiffs and
Defendants Elements of Proof, XXIX Annals of Air & Space Law 91-145 (2004).
Dempsey, P., Pennies from Heaven: Breaking Through the Liability Limitations of Warsaw,
XXII Annals of Air & Space Law 267-93 (1997).
Dempsey, P., Montreal v. Brussels: The Conflict of Laws on the Issue of Delay in
International Air Carriage, 35 Air & Space Law 297 (2010).
Dempsey, P., Accidents and Injuries in International Air Law: The Clash of the
Titans, XXXIV Annals of Air & Space Law 285-310 (2009); republished in the Korean
Journal of International Law 235-70 (2009).
Articles on aviation liability in the Annals of Air and Space Law
International Legislation
- Warsaw Convention 1929
- The Hague Protocol 1955
- Guadalajara Convention 1961
- Guatemala City Protocol 1971
- Additional Protocols 1, 2, 3 of 1973 and Protocol of Montreal No. 4 of 1975
- Montreal Convention for the Unification of Certain Rules for International Carriage by
Air (28 May 1999)
Other texts
- IATA General Conditions of Carriage
- Montreal Agreement 1966 (CAB 18900)
- IATA Intercarrier Agreement on Passenger Liability
- IATA Agreement on Measures to Implement the IATA Intercarrier Agreement
- Classroom handouts
Additional reading material will be recommended during the lectures on specific subjects.
MCGILL POLICY STATEMENTS
1. "McGill University values academic integrity. Therefore, all students must understand the meaning and
consequences of cheating, plagiarism and other academic offences under the Code of Student Conduct and
Disciplinary Procedures (see www.mcgill.ca/students/srr/honest/ for more information). (approved by Senate on 29
January 2003)
2. In accord with McGill Universitys Charter of Students Rights, students in this course have the right to
submit in English or in French any written work that is to be graded. (approved by Senate on 21 January 2009 - see
also the section in this document on Assignments and evaluation.)
3. Use of Text-matching software: "Instructors who may adopt the use of text-matching software to verify the
originality of students' written course work must register for use of the software with the ICS Service Desk
(http://www.mcgill.ca/it/) and must inform their students before the drop/add deadline, in writing, of the use of text-
matching software in a course." (approved by Senate on 1 December 2004).