Laws Relating to International Trade or Carriage of Passengers by Air
The Warsaw Convention 1929
The full title of Warsaw Convention is ‘Convention for the Unification of certain Rules relating to International Carriage by Air’ it was first organized to deal with the problem of liability of airlines in view of the conflicts due to different legal systems of different countries which arose because of the international nature of air travel. It also sorts to standardize air travel documents. Its primary importance for carriers and insurers is that:
- Established the monetary extent of carriers’ liability
- Limits of carriers’ defenses in most cases of accidents or delay.
- Defined the rights of passengers and cargo owners
The convention may impose unlimited liability, for example, where willful misconduct of the carrier is proved. However, the liability to passengers or consignors is restricted and any fault must be proved against the carrier. For the air carrier to have protection under the Warsaw convention, they must issue a passenger ticket in agreed form or an air consignment not for goods.
Particulars in Passenger’ ticket
The passenger ticket given by the air carrier to the passenger must contain at least the following details.
- Place and date of issue
- Place of departure and destination
- The agreed stopping places – the stopping places can be altered by the carrier in case of necessity, and if the carrier exercise the right, the alteration shall not have the effect of depriving the carriage of its international character.
- The name and address of the carrier
- The statement that the carrier is to rules relating to liability established by the convention.
Liability of a Carrier
Article 17 imposes strict liability to the carrier in the event that the passenger suffering death or bodily injury while entering or leaving or while on board the aircraft., however, there are certain conditions that the passenger must prove before they can be successful in the claim. These are,
- Prove there was an accident
- That the accident took place in the course of entering, leaving or on board of the aircraft
The liability of the air carrier towards passengers extend from the operation from the embarking to the disembarking. These terms are defined as extending from the the time that passengers check into the airline ticket desk to the time, following the flight, when they pass into the customs hall from the arrival lounge.
Further the convention provides that carriage between two points within the territory of a single country without an agreed stopping place within the territory of another state is not international carriage for the purpose of the convention.
Article 4 sets out the particulars which must be contained in the baggage check and provide that the carrier is not entitled to limit its liability under the convention if some of the particulars are not contained in the baggage check
The convention specifies that registered baggage is the luggage ticketed by the carrier and carried in in the cargo hold of the aircraft. It is subject to the terms of the convention provided the carrier issues a luggage ticket as described above. Unregistered baggage is hand luggage carried on board by the aircraft by the passenger, and is also subject to the provisions of the convention in general terms.
The air carriage is liable for the baggage while it is in their charge, including loading, delivery and transshipment. The carrier is also liable for damage as a result of delay either to passengers, luggage or goods
Limits of Liability
Article 22 of the Warsaw Convention gives details of the carriers’ right to limit liability to specific figures arising out of the carriage of passengers or goods as follows:
Passengers – the maximum amount which may be paid is limited to 125,000 gold francs per passenger unless by special arrangements a higher limit is agreed by the passenger and his carrier
Registered baggage and cargo – the maximum amount which the air carrier may pay is limited to 250 gold francs per kilo unless a higher limit is agreed
Unregistered baggage – the maximum liability of the carrier is limited to 5,000 gold francs per passenger, in this case, the passenger must prove negligence by the carrier.
In return of being limited to these low levels of liability, air carriers on flights governed by the Warsaw Convention wave may legal defenses. Their position is that they are presumed liable to pay damages up to the above units unless they can prove,
That the plaintiff was wholly to blame for the loss
That the plaintiff was partially to blame
That the carrier took all necessary measures to avoid the damage or that it was impossible for them to take such measures.
In the case of cargo loss or damage only that the loss or damage was caused by negligent pilotage or negligence in handling or navigation of aircraft.
Delivery of Baggage or Goods
Article 26 provides that receipt by any person entitled to delivery of baggage or goods without complaints is a clear evidence that the baggage or goods were delivered in good condition and that a person entitled to delivery must complain immediately and in any case not later than three days of receipt of goods and seven days in respect of cargo. It also specifies that the complaint must be in writing.
The Warsaw Convention dealt with the issue of the jurisdiction in which a claim for damage can be brought. It gave the complainant four different jurisdiction where they can bring a case. These are:
- A court in domicile of the carrier
- A court in the principle place of business of the carrier
- A court where the the carrier has a place of business through which the contract was made.
- A court at the place of ultimate destination of the contract of carriage
The convention provides a time limit of two years within which the proceeding must be brought
The Hague Protocol 1955
But some countries felt that the the limits in the Warsaw Convention were too low, to address this issue, The Hague Protocol was called in 1955. its object was to update the Warsaw Convention. It would only be ratified by those states which had ratified the Warsaw Convention because the protocol was, in effect additional to Warsaw Convention.
The Hague Protocol doubled the Warsaw Convention limits and also clarified the which of the carrier’s liability is calculated in respect of loss, damage or delay to the part of registered baggage or cargo or any object contained in such baggage or cargo. The Hague Protocol increases the the time limit within which a person entitled to delivery or cargo can lodge a claim.
Guadalajara Convention 1961
In 1961 the Guadalajara Convention was signed. This supplemented the Warsaw Convention and established international rules foe air carriage performed by a person other than the contracting carrier. E.g. when ticket is issued by a tour operator, or by a travel agent on their own behalf, and not as an agent for an airline, the airline is an actual carrier but the agent in whose name the ticket is issued is the contracting carrier.
The Montreal Agreement 1966
Following the announcement by the US government that it was to withdraw from the Warsaw Convention, an agreement was reached by airlines in Montreal in 1966 to voluntarily increase liability to passengers as an interim measure until a permanent solution was devise. It also provides that all defenses available to carriers under Warsaw Convention should not apply. Although the agreement is voluntarily, the USA had made it a requirement for airlines which wish to fly into, out of or stop over in USA.
Montreal Convention 1971
The Montreal Convention dealt with with anyone attacking civil aviation by destroying ground facilities and navigation aids
Guatemala Protocol 1971
The Guatemala Protocol was devised in response to the objections of the American government to the low liability limits set out in Warsaw Conventions.
The Guatemala Protocol provides for:
- Automatic increasing of the liability limit
- The convention not to come into force until it had ratified by 30 states 5 of which it should account for 40 per cent of the worlds’ passenger kilometers.
The Montreal Additional Protocol 1975
This is in respect of the international conference on air law, which was held at Montreal, in September 1975, there was four additional protocols agreed. The first three protocols were drafted to change the units in which the carrier’s liability is expressed from Gold francs to Special Drawing Rights(SADR)on the International Monetary Fund(IMF). They were as follows:
- Protocol Nov. amended the Warsaw Convention, 1929
- Protocol No. 2 amended The Hague Protocol, 1955
- Protocol No.3 amended the Guatemala Protocol, 1971
- Protocol No.4 relates to the rules of liability applicable to the carriage of postal item.
Current Position of Transport by Air
The Montreal convention, formally the convention for the Unification of Certain Rules for International Carriage, is a treaty adopted by diplomatic meeting of ICAO (International Civil Aviation Organization) member states in 1999. It amended important provisions of the Warsaw Convention’s regime concerning compensation for the victims of air disaster. 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 modernization 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 lengthy litigation.