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THE MONTREAL CONVENTION

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I adopt the view, taken by other courts which have considered this problem, that there are, in this respect, strong considerations of commercial sense in favour of an interpretation which recognises and gives effect to the underlying contractual structure, save in so far this is positively inconsistent with the Warsaw and Guadalajara Conventions ...

The interests of international uniformity no longer point towards a restriction of the right of suit to any named consignor, consignee or person entitled under Art 12(1). The new magnetic pole of jurisprudence draws quite strongly towards conclusions that there is no such general restriction in the convention, and that, at least under systems which recognise the rights of unnamed or even undisclosed principals, there is nothing in the conventions to prevent such principals of the named consignor or consignee intervening and suing (or being sued) in reliance on the relevant contract for carriage by air. As principals, they will necessarily be subject to any limitations on suit which the convention imposes on their consignor or consignee agents [at pp 765–68].

Time limitation

An action for damages will be time barred if it is not brought within two years (Art 29(1)).108 Time starts to run from the date of arrival at the destination, from the date on which the aircraft should have arrived, or from the date the carriage stopped. The method of calculating the time is left to the forum (Art 29(2)). In Britain, s 5(1) of the Carriage by Air Act 1961 extends the availability of the time limitation to carriers’ agents and servants who have acted in the scope of their employment.

An action for freight or an action for indemnity between carriers is not affected by Art 29(1) since the provision restricts itself to action for damages.

The Montreal Convention

The Warsaw regime had been questioned for quite a while because of the complexity brought about by the co-existence of the Warsaw Convention 1929 and the Warsaw Convention as amended by the Hague Protocol 1955, along with the four Montreal Protocols. Attention to the shambles of the Warsaw system was continuously drawn by academic writers.109 The dissatisfaction with the system emanating from industry, legal practitioners, academics and policy makers seems to have had some impact, and, under the auspices of the International Air Transport Association (IATA), the convention, known as the Montreal Convention, was approved in 1999. As stated in the Introduction, the Montreal Convention does not introduce any dramatic changes to the liability scheme.110 There is, however, one important change introduced in relation to cargo documentation by the Montreal Convention, which reflects its modernisation aspect. Article 4(2) gives recognition to the use of electronic documentation by providing that ‘any other means which preserves a record of the carriage to be performed may be substituted for the delivery of an air waybill’. Where an alternative to a tangible document is used, Art 4(2) allows the carrier when requested by the consignor to deliver ‘a cargo receipt permitting identification of the consignment and access to the information

108Note also Art 26, which specifies the time for submitting written complaints. See also Western Digital Corp and Other v British Airways plc [2001] QB 733.

109See Matte, ‘The Warsaw system and the hesitation of the US Senate’ (1983) 8 Annals Air and Space Law 151; Harakas, ‘The Montreal Protocols in the United States 17 years later: the road to ratification or final defeat’ (1992) 41 ZLW 354.

110See Table 10.1 on carrier liability in relation to cargo under the different variations of the Warsaw Convention and the Montreal Convention.

Table 10.1: Carrier liability in relation to cargo underWarsaw Convention 1929 (WC1929),Warsaw Convention 1929 as amended by Hague Protocol 1955 (WC1955),Warsaw Convention 1929 as amended by Hague Protocol 1955 as amended by Montreal Protocol no 4 (MP4), and the Montreal Convention 1999

ISSUES

WC1929

WC1955

MP4

MONTREAL CONVENTION

 

 

 

 

1999

 

 

 

 

 

Carrier liability

Carrier liable for destruction or

Same as WC1929

No change to liability, except

Same as MP4

 

loss of, damages to goods (Art 18

 

change in defences

 

 

(1)), and damage occasioned by

 

 

 

 

delay (Art 19)

 

 

 

 

 

 

 

 

Period of

Responsible for goods when

Same as WC1929

Effect of replacement Art 18 (see

Responsible for cargo when

responsibility

in carrier’s charge (Art 18(2)).

 

Arts 18(4) & 5) has the same ef-

carrier in charge of cargo

 

This period does not extend

 

fect as Art 18(2) & (3) of WC1929

(Art 1(3)). It does not extend,

 

to carriage by other modes of

 

(see Art IV amending Art 18).

however, to carriage by land,

 

transport – for example, land,

 

 

sea or inland waterway,

 

sea, river – unless undertaken

 

 

unless done for the purpose

 

in the performance of carriage

 

 

of loading, delivery and so

 

by air as in loading and delivery

 

 

on. However, where the

 

(Art 18(3)).

 

 

carrier substitutes air car-

 

 

 

 

riage with another mode of

 

 

 

 

carriage without the consent

 

 

 

 

of the consignor, the entire

 

 

 

 

carriage would be treated

 

 

 

 

as within the period of air

 

 

 

 

carriage (Art 18(4)).

 

 

 

 

 

Defences

Not liable if he proves that he

Same as WC1929,

Not liable in the event of inherent

Same as MP4 (see Arts 18

 

and his agents have taken all

except negligent

defect, quality or vice of the

and 19)

 

necessary measures to avoid

navigation,

cargo; defective packing of the

 

 

damage or it was impossible for

management

cargo performed by a party other

 

 

him/them to take such measures

exceptiondropped

than carrier, servants or agents;

 

 

(Art 20(1)).

(see Art 10)

an act of war or armed conflict;

 

 

Also not liable if he proves

 

or an act of public authority

 

 

damage caused by negligent

 

carried out in connection with

 

 

handling of aircraft or in

 

the entry, exit or transit of cargo

 

 

navigation (Art 20(2))

 

(Art IV amending Art 18).

 

 

 

 

In the event of damage caused

 

 

 

 

by delay, not liable if he can

 

 

 

 

show that he took all necessary

 

 

 

 

measures that could reasonably

 

 

 

 

be required to avoid the damage

 

 

 

 

or that it was impossible to take

 

 

 

 

such measures (Art V amending

 

 

 

 

Art 20).

 

 

 

 

 

 

Liability

250 per kg, unless there is

Same as WC1929

No change

Was same as WC1955

limits

a declaration of interest by

Expression

 

as amended by Montreal

 

consignor (Art 22).

in SDRs due

 

Protocol. (Art 22(3))

 

(Expressed as 17 SDRs in

to Montreal

 

Note, however, Montreal

 

Montreal Protocol No 1

Protocol No 2

 

Convention allows for

 

amending WC1929)

 

 

periodic review of liability

 

 

 

 

limits (Art 24). This provision

 

 

 

 

has been used to increase

 

 

 

 

limits to 19 SDRs per kg.

 

 

 

 

 

(Continued)

Table 10.1: Carrier liability in relation to cargo underWarsaw Convention 1929 (WC1929),Warsaw Convention 1929 as amended by Hague Protocol 1955 (WC1955),Warsaw Convention 1929 as amended by Hague Protocol 1955 as amended by Montreal Protocol no 4 (MP4), and the Montreal Convention 1999 (Continued )

ISSUES

WC1929

WC1955

MP4

MONTREAL CONVENTION

 

 

 

 

1999

 

 

 

 

 

Breaking the

Limits broken in the event

Limits broken

Limits cannot be broken in the

Same as MP4 (see Art 22(5))

limits

of damage caused by wilful

where damage

carriage of cargo (Art IX amend-

 

 

misconduct or by default that is

resulted from an

ing Art 25).

 

 

considered equivalent to wilful

act or omission

 

 

 

misconduct (Art 25)

of the carrier,

 

 

 

 

his servants or

 

 

 

 

agents done

 

 

 

 

with intent to

 

 

 

 

cause damage

 

 

 

 

or recklessly and

 

 

 

 

with knowledge

 

 

 

 

that damage

 

 

 

 

would probably

 

 

 

 

result (see Art 13

 

 

 

 

amending Art 25)

 

 

 

 

 

 

 

Time limitation

Two years from date of arrival or

No change

No change

No change (see Art 35)

 

from date when aircraft should

 

 

 

 

have arrived (Art 29)

 

 

 

 

 

 

 

 

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