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Warsaw and Montreal Convention

Rationale and Scope


WARSAW Convention

• “The Convention for the Unification of Certain Rules Relating


to International Transportation by Air”
• It was the Government of France that proposed the convening
of a diplomatic conference or the purpose of concluding a
convention relating to liability in international carriage by air.
• The law was presented, then signed at the Warsaw (Poland)
Conference in 1929.
• Hence, then name “Warsaw” Convention.
• Ratified by the Philippines on November 9, 1950 and it took
effect on February 7, 1951.
Rationale
WARSAW Convention

• To regulate the liability for international carriage of


persons, luggage, or goods performed by aircraft carriers.

General Purpose
WARSAW Convention
• To protect and promote the international airline industry
that was still in its infancy at the time of the drafting of
the treaty.
Purposes of the
WARSAW Convention

• To accommodate or to balance the interests of PASSENGERS


who are seeking recovery for personal injuries and the
interests of AIR CARRIERS seeking to limit potential liability.
• To employ a scheme of strict liability favoring passengers and
imposing damage caps to benefit air carriers.
• To provide uniformity of rules governing claims arising from
international air travel; thus, it precludes a passenger from
maintaining an action for personal injury damages under the
local law when his/her claim does not satisfy the conditions of
liability under the Convention.
Amendments to the
WARSAW Convention
HAGUE 1955 [1] Since the original Convention was written in 1929,
PROTOCOL and with the advance of technology and law, the
original treaty had to be updated.
[2] Limited the liability that commercial airliners would
have to take on in the event of an accident.
GUATEMALA 1971 [1] Stricter liabilities: it increased the limits of recovery,
PROTOCOL particularly in the case of death or injury of a passenger.
[2] Amendments on articles on jurisdiction, passenger
tickets, baggage checks, and liabilities for delays.
MONTREAL 1975 [1] Stricter liabilities on damages
PROTOCOL [2]Amended jurisdictional provisions of Warsaw and
now allows the victims or their families to sue foreign
carriers, and requires all air carriers to carry liability
insurance.
MONTREAL
Convention

• A multilateral treaty adopted by a diplomatic meeting of


International Civil Aviation Organization (ICAO) member
states in 1999.
• The Convention attempts to re-establish uniformity and
predictability of rules relating to the international
carriage of passengers, baggage and cargo.
• As of January 2015, 108 members of the ICAO have
signed on to the Montreal Convention, representing over
half of the United Nations organization’s membership.
Purposes of
MONTREAL
Convention

• To update, consolidate and harmonize the Warsaw


Convention as well as all other related instruments of
private international air law.
• To protect the interests of passengers and consumers
financially in international carriage by air, in case of
accidents or deaths, and the need for equitable
compensation based on the principle of restitution.
Warsaw VS Montreal

WARSAW CONVENTION MONTREAL CONVENTION


Date of Effectivity October 12, 1929 May 28, 1999
Ratified in the Philippines  
on November 9, 1959 and
took effect on February 7,
1951
 
Warsaw VS Montreal

WARSAW CONVENTION MONTREAL


Scope All international carriage CONVENTION
All international carriage
of persons, of persons,
baggage or cargo baggage or cargo
performed by aircraft for performed by aircraft for
reward. It applies equally reward. It applies equally
to gratuitous carriage by to gratuitous carriage by
aircraft performed by an aircraft performed by an
air transport undertaking. air transport undertaking.
   
Liabilities and Defenses
Warsaw VS Montreal

Liability under Warsaw Convention:

Article 17
The carrier is liable for damage sustained in the event of the death or 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.

1. 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
Warsaw VS Montreal

Liability under Warsaw Convention:

Article 17
The carrier is liable for damage sustained in the event of the death or 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.

2. The carrier liable for damage sustained in case of destruction or


loss of, or of damage to, checked baggage upon condition only that the event which
caused the destruction, loss or damage took place on board the aircraft or during any
period within which the checked baggage was in the charge of the carrier. However, the
carrier is not liable if and to the extent that the damage resulted from the inherent defect,
quality or vice of the baggage. In the case of unchecked baggage, including personal
items, the carrier is liable if the damage resulted from its fault or that of its servants or
agents.
Warsaw VS Montreal

Liability under Warsaw Convention:

Article 17
The carrier is liable for damage sustained in the event of the death or 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.

3. If the carrier admits the loss of the checked baggage, or if the checked baggage has
not arrived at the expiration of twenty-one days after the date on which it ought to have
arrived, the passenger is entitled to enforce against the carrier the rights which flow from
the contract of carriage
Warsaw VS Montreal

Liability under Warsaw Convention:

Article 17
The carrier is liable for damage sustained in the event of the death or 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.

4. Unless otherwise specified, in this Convention the term "baggage" means both checked
baggage and unchecked
caused the damage so sustained took place during the carriage by air.
Warsaw VS Montreal

Liability under Warsaw Convention:

Article 17
The carrier is liable for damage sustained in the event of the death or 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.

5. The carriage by air within the meaning of the preceding paragraph comprises the
period during which the luggage or goods are in charge of the carrier,
whether in an aerodrome or on board an aircraft, or, in the case of a landing outside an
aerodrome, in any place whatsoever.
Warsaw VS Montreal

Liability under Warsaw Convention:

Article 17
The carrier is liable for damage sustained in the event of the death or 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.

6. The period of the carriage by air does not extend to any carriage by land, by sea or by
river performed outside an aerodrome. If, however, such a carriage takes place in the
performance of a contract for carriage by air, for the purpose of loading, delivery or
transhipment, any damage is presumed, subject to proof to the contrary, to have been the
result of an event which took place during the carriage by air.
Warsaw VS Montreal

Liability under Warsaw Convention:

Article 18
The carrier is liable for damage sustained in the event of the destruction or loss of, or
of damage to, any registered luggage or any goods, if the occurrence which

Article 19
The carrier is liable for damage occasioned by delay in
the carriage by air of passengers, luggage or goods
Warsaw VS Montreal

Liability under Montreal Convention:

Article 17 - Death and injury of passengers - damage to baggage


1. 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.
Warsaw VS Montreal

Liability under Montreal Convention:


Article 17 - Death and injury of passengers - damage to baggage
2. The carrier liable for damage sustained in case of destruction or loss of, or of damage
to, checked baggage upon condition only that the event which caused the destruction,
loss or damage took place on board the aircraft or during any period within which the
checked baggage was in the charge of the carrier. However, the carrier is not liable if and
to the extent that the damage resulted from the inherent defect, quality or vice of the
baggage. In the case of unchecked baggage, including personal items, the carrier is liable
if the damage resulted from its fault or that of its servants or agents.
Warsaw VS Montreal

Liability under Montreal Convention:

Article 17 - Death and injury of passengers - damage to baggage


3. If the carrier admits the loss of the checked baggage, or if the checked baggage has
not arrived at the expiration of twenty-one days after the date on which it ought to have
arrived, the passenger is entitled to enforce against the carrier the rights which flow from
the contract of carriage
Warsaw VS Montreal

Liability under Montreal Convention:

Article 17 - Death and injury of passengers - damage to baggage


4. Unless otherwise specified, in this Convention the term "baggage" means both checked
baggage and unchecked baggage.
Warsaw VS Montreal

Liability under Montreal Convention:

Article 18 - Damage to cargo


1. The carrier is liable for damage sustained in the event of the destruction or loss of or
damage to, cargo upon condition only that the event which caused the damage so
sustained took place during the carriage by air. 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.
Warsaw VS Montreal

Liability under Montreal Convention:

Article 18 - Damage to cargo


1. 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.
Warsaw VS Montreal

Liability under Montreal Convention:

Article 18 - Damage to cargo


2. However, the carrier is not liable if and to the extent it proves that the destruction, or loss
of, or damage to, the cargo resulted from one or more of the following:
(a) inherent defect, quality or vice of that cargo;

(b) defective packing of that cargo performed by a person other than the carrier or its
servants or agents;

(c) an act of war or an armed conflict;

(d) an act of public authority carried out in connection with the entry, exit or transit of the
cargo.
Warsaw VS Montreal

Liability under Montreal Convention:

Article 18 - Damage to cargo


3. The carriage by air within the meaning of paragraph 1 of this Article comprises the
period during which the cargo is in the charge of the carrier.
Warsaw VS Montreal

Liability under Montreal Convention:

Article 18 - Damage to cargo


4. The period of the carriage by air does not extend to any carriage by land, by sea or by
inland waterway performed outside an airport. If, however, such carriage takes place in
the performance of a contract for carriage by air, for the purpose of loading, delivery or
transhipment, any damage is presumed, subject to proof to the contrary, to have been the
result of an event which took place during the carriage by air. If a carrier, without the
consent of the consignor, substitutes carriage by another mode of transport for the whole
or part of a carriage intended by the agreement between the parties to be carriage by air,
such carriage by another mode of transport is deemed to be within the period of carriage
by air.
Warsaw VS Montreal

Liability under Montreal Convention:

Article 19 – Delay

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 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.
Exoneration
Warsaw VS Montreal

Exoneration Under Montreal Convention:


Article 20 - Exoneration

If the carrier proves that the damage was caused or contributed to by the
negligence or other wrongful act or omission of the person claiming
compensation, or the person from whom he or she derives his or her rights, the
carrier shall be wholly or partly exonerated from its liability to the claimant to the
extent that such negligence or wrongful act or omission caused or contributed to
the damage.
Warsaw VS Montreal

Exoneration Under Montreal Convention:


Article 20 - Exoneration

When by reason of death or injury of a passenger compensation is claimed by a


person other than the passenger, the carrier shall likewise be wholly or partly
exonerated from its liability to the extent that it proves that the damage was
caused or contributed to by the negligence or other wrongful act or omission of
that passenger. This Article applies to all the liability provisions in this Convention,
including paragraph 1 of Article 21.
Warsaw VS Montreal

Damages Under Warsaw Convention:


Article 22

1. In the carriage of passengers the liability of the carrier for each passenger is
limited to the sum of 125,000 francs. Where, in accordance with the law of the
Court seised of the case, damages may be awarded in the form of periodical
payments, the equivalent capital value of the said payments shall not exceed 125,
000 francs. Nevertheless, by special contract, the carrier and the passenger may
agree to a higher limit of liability.
Warsaw VS Montreal

Damages Under Warsaw Convention:


Article 22

2. In the carriage of registered luggage and of goods, the liability of the carrier is
limited to a sum of 250 francs per kilogram, unless the consignor has made, at the
time when the package was handed over to the carrier, a special declaration of
the value at delivery and has paid a supplementary sum if the case so requires. In
that case the carrier will be liable to pay a sum not exceeding the declared sum,
unless he proves that that sum is greater than the actual value to the consignor at
delivery.
Warsaw VS Montreal

Damages Under Warsaw Convention:


Article 22

3. As regards objects of which the passenger takes charge himself the liability of
the carrier is limited to 5,000 francs per passenger.

4. The sums mentioned above shall be deemed to refer to the French franc
consisting of 65 « milligrams gold of millesimal fineness 900. These sums may be
converted into any national currency in round figures.
Warsaw VS Montreal

Damages Under Warsaw Convention:


Article 22

3. As regards objects of which the passenger takes charge himself the liability of
the carrier is limited to 5,000 francs per passenger.

4. The sums mentioned above shall be deemed to refer to the French franc
consisting of 65 « milligrams gold of millesimal fineness 900. These sums may be
converted into any national currency in round figures.
Warsaw VS Montreal

Damages Under Montreal Convention:


Article 21 - Compensation in case of death or injury of passengers

1. For damages arising under paragraph 1 of Article 17 not exceeding 100,000


Special Drawing Rights for each passenger, the carrier shall not be able to exclude
or limit its liability.
Warsaw VS Montreal

Damages Under Montreal Convention:


2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the
extent that they exceed for each passenger 100,000 Special Drawing Rights if the carrier
proves that:

(a) such damage was not due to the negligence or other wrongful act or omission of the
carrier or its servants or agents; or

(b) such damage was solely due to the negligence or other wrongful act or omission of a
third party.
Warsaw VS Montreal

Damages Under Montreal Convention:

Article 22 - Limits of liability in relation to delay, baggage and cargo

1. 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
4,150 Special Drawing Rights.
Warsaw VS Montreal

Damages Under Montreal Convention:

Article 22 - Limits of liability in relation to delay, baggage and cargo

2. In the carriage of baggage, the liability of the carrier in the case of


destruction, loss, damage or delay is limited to 1,000 Special Drawing Rights
for each passenger unless the passenger has made, at the time when the
checked baggage was handed over to the carrier, a special declaration of
interest in delivery at destination and has paid a supplementary sum if the
case so requires. In that case the carrier will be liable to pay a sum not
exceeding the declared sum, unless it proves that the sum is greater than the
passenger's actual interest in delivery at destination.
Venue for Action and Jurisdiction
Warsaw VS Montreal

Venue for Action Warsaw Convention


Article 28

1. An action for damages must be brought, at the option of the plaintiff, in the territory of
one of the High Contracting Parties, either before the Court having jurisdiction where the
carrier is ordinarily resident, or has his principal place of business, or has an
establishment by which the contract has been made or before the Court having
jurisdiction at the place of destination.

2. Questions of procedure shall be governed by the law of the Court seised of the case.
Warsaw VS Montreal

Venue for Action under Montreal Convention


Article 33 – Jurisdiction

1. An action for damages must be brought, at the option of the plaintiff, in the territory of
one of the States Parties, either before the court of the domicile of the carrier or of its
principal place of business, or where it has a place of business through which the
contract has been made or before the court at the place of destination.
Warsaw VS Montreal

Venue for Action under Montreal Convention


Article 33 – Jurisdiction

2. In respect of damage resulting from the death or injury of a passenger, an action may be
brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of
a State Party in which at the time of the accident the passenger has his or her principal and
permanent residence and to or from which the carrier operates services for the carriage of
passengers by air, either on its own aircraft or on another carrier's aircraft pursuant to a
commercial agreement, and in which that carrier conducts its business of carriage of
passengers by air from premises leased or owned by the carrier itself or by another carrier
with which it has a commercial agreement.
Warsaw VS Montreal

Venue for Action under Montreal Convention


Article 33 – Jurisdiction

3. For the purposes of paragraph 2,

(a) "commercial agreement" means an agreement, other than an agency agreement, made
between carriers and relating to the provision of their joint services for carriage of passengers
by air;

(b) "principal and permanent residence" means the one fixed and permanent abode of the
passenger at the time of the accident. The nationality of the passenger shall not be the
determining factor in this regard.

4. Questions of procedure shall be governed by the law of the court seized of the
Warsaw VS Montreal

Venue for Action under Montreal Convention


Article 33 – Jurisdiction

3. For the purposes of paragraph 2,

(a) "commercial agreement" means an agreement, other than an agency agreement, made
between carriers and relating to the provision of their joint services for carriage of
passengers by air;

(b) "principal and permanent residence" means the one fixed and permanent abode of the
passenger at the time of the accident. The nationality of the passenger shall not be the
determining factor in this regard.

4. Questions of procedure shall be governed by the law of the court seized of the
Warsaw VS Montreal

Venue for Action under Montreal Convention


What jurisdiction shall apply?

In all cases, the trigger for the application of any one of the international air
conventions and its corresponding legal regime is the concept of "international
carriage".

To determine whether a specific contract of carriage is "international carriage"


governed by one of the international air conventions, there is a two-stage inquiry.
Warsaw VS Montreal

Venue for Action under Montreal Convention


What jurisdiction shall apply?

In all cases, the trigger for the application of any one of the international air
conventions and its corresponding legal regime is the concept of "international
carriage".

To determine whether a specific contract of carriage is "international carriage"


governed by one of the international air conventions, there is a two-stage inquiry.
Warsaw VS Montreal

Venue for Action under Montreal Convention


What jurisdiction shall apply?

The process may be summarized as follows:


First, it is necessary to determine whether the carriage comes within the
technical concept of "international carriage", defined by reference to the agreed
places of departure and destination and any agreed stopping place.

Secondly, it is necessary to check that the State/s of departure and destination


are Contracting States to the same version of either one of the Warsaw-system
conventions, or the Montreal Convention 1999.
Warsaw VS Montreal

Venue for Action under Montreal Convention


What jurisdiction shall apply?

The process may be summarized as follows:


First, it is necessary to determine whether the carriage comes within the
technical concept of "international carriage", defined by reference to the agreed
places of departure and destination and any agreed stopping place.

Secondly, it is necessary to check that the State/s of departure and destination


are Contracting States to the same version of either one of the Warsaw-system
conventions, or the Montreal Convention 1999.
Warsaw VS Montreal

Venue for Action under Montreal Convention


What jurisdiction shall apply?
The first stage of the inquiry consists of considering the definition of "
international carriage". Both the Warsaw-system conventions and the Montreal
Convention 1999 use similar language to define the term "international carriage".
They make reference to the "contract made by the parties", or the "agreement
between the parties", in two distinct situations.
i) The agreed place of departure and the place of destination are situated within
the territories of two Contracting States, whether or not there is a break in the
carriage or a transshipment;
ii) The agreed place of departure and the place of destination are situated within
the territory of a single Contracting State, if there is an agreed stopping place
within the territory of another State, whether or not this is a Contracting State.
 
Therefore, in order to determine whether a contract for the transport of goods is "
Warsaw VS Montreal

Venue for Action under Montreal Convention


What jurisdiction shall apply?
i) The agreed place of departure and the place of destination are situated within
the territories of two Contracting States, whether or not there is a break in the
carriage or a transshipment;
ii) The agreed place of departure and the place of destination are situated within
the territory of a single Contracting State, if there is an agreed stopping place
within the territory of another State, whether or not this is a Contracting State.
 
Warsaw VS Montreal

Venue for Action under Montreal Convention


What jurisdiction shall apply?
Therefore, in order to determine whether a contract for the transport of goods is "
international carriage" it is imperative to study the air waybill or ticket closely to
ascertain the agreed places of departure and destination, as well as any agreed
stopping place, and to determine whether these meet the requirements set out in
i) or ii) above. If the requirements are met, the contract is one of "international
carriage" governed by one of the Warsaw-system conventions or the Montreal
Convention 1999, as applicable.
Warsaw VS Montreal

Venue for Action under Montreal Convention


What jurisdiction shall apply?
In cases where more than one international air convention may be applicable, a
second stage is necessary, which consists in identifying the specific legal regime
applicable to a contract of "international carriage". Thus, it is necessary to
determine the "latest" treaty relationship common to both States. This has also
been described as the determination of the "lowest common denominator."
Enforcement in the Philippines
Warsaw VS Montreal

Enforcement:

• In the Philippines, it is the Civil Aeronautics Board who holds quasi-judicial power to
enforce its mandate which is regulating the Civil Aeronautics in the Philippines;

• The Department of Trade and Industry as well as the Department of Transportation and
Communication through the Civil Aeronautics Board created a Passenger Bill of Rights;

• the CAB is empowered to help or assist in the filing and prosecution of the complaints of
passengers whose rights have been violated and who wish to go after the concerned air
;
carriers
Warsaw VS Montreal

Enforcement:
If the Filipino passenger seeks to enforce his or her rights against an international carrier
there are two alternatives. Either under the Warsaw Convention but only up to the extent of
the Hague Protocol additions or the Montreal Convention of 1999. As earlier discussed, the
problem with the Warsaw Convention was that the succeeding amendments and protocols
were not acceded to by the original state parties

Therefore, it is the position of the writers that recourse through Warsaw convention is still
possible but it has an outdated compensation scheme and an original state party might not
have signed the succeeding amendments. Whereas, following the Montreal Convention
Regime, states which are assignatory thereto, will follow the uniform rules provided thereby.

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