Chapter 10

International Carriage of Goods by Air

Chapter Contents

Introduction

The law relating to the international carriage by air of cargo, passengers and luggage is to be found in two distinct sources: (1) Montreal Convention 19991 and (2) a network of legal instruments commonly known as the Warsaw system.2 The Montreal Convention 1999 is largely a tidying up exercise of the fragmentation of law found in the Warsaw system, examined in the following section. It consolidates and modernises the Warsaw system where needed and reflects the liability scheme adopted by the Warsaw Convention as amended by the Hague Protocol as further amended by Montreal Additional Protocol No.4. A knowledge of the Warsaw system is, therefore, necessary to understand the liability scheme adopted by the Montreal Convention, besides providing guidance on how the provisions of this new Convention are likely to be interpreted by the courts. Further, it must be noted that not all parties to the various instruments found in the Warsaw system have as yet ratified the Montreal Convention. Hence, a carriage by air from a state that has ratified the Montreal Convention to a state that is a party to the Warsaw Convention 1929 will be governed by the latter.3 This chapter, therefore, starts with an examination of the Warsaw system.

The Warsaw system

The Warsaw system consists of the following legal instruments:

•Warsaw Convention 1929;4

•Warsaw Convention as amended by the Hague Protocol 1955;5

•Guadalajara Convention 1961;6

5Hague Protocol to amend the Convention for the Unification of Certain Rules relating to International Carriage by Air signed at Warsaw on 12 October 1929 (The Hague Protocol) 1955.

6Convention 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 (Guadalajara) 1961.

7 Protocol to amend the Convention for the Unification of Certain Rules relating to International Carriage by Air signed at Warsaw on 12 October 1929 as amended by the Protocol done at The Hague on 28 September 1955 and at Guatemala City on 8 March 1971.

8Additional Protocol No 1 to amend the Convention for the Unification of Certain Rules relating to International Carriage by Air signed at Warsaw on 12 October 1929.

9Additional Protocol No 2 to amend the Convention for the Unification of Certain Rules relating to International Carriage by Air signed at Warsaw on 12 October 1929 as amended by the Protocol done at The Hague on 28 September 1955.

10Additional Protocol No 3 to amend the Convention for the Unification of Certain Rules relating to International Carriage by Air signed at Warsaw on 12 October 1929 as amended by the Protocols done at The Hague on 28 September 1955 and at Guatemala City on 8 March 1971.

11Additional Protocol No 4 to amend the Convention for the Unification of Certain Rules relating to International Carriage by Air signed at Warsaw on 12 October 1929 as amended by the Protocol done at The Hague on 28 September 1955.

However, not all states who were parties to the Warsaw Convention 1929 ratified the Hague Protocol with the result that international carriage by air law is as complex, if not more, as the law of carriage of cargo by sea.12 However, there are numerous inter-carrier agreements13 – drawn up largely to satisfy the US’ demand14 for higher liability limits for passengers. These agreements are by no means amendments to the Warsaw Convention 1929 and are a matter of contract between the parties. Since they relate to carriage of passengers, they are beyond the scope of this chapter.

A brief outline of the focus of the various conventions and protocols are given before examining topics such as documentation requirements, carrier liability, liability limits and choice of forum.

Warsaw Convention 1929

(Hereinafter ‘unamended version’.)

This convention was primarily drafted to avoid conflicts of laws through harmonisation and protect an infant industry from excessive liability. The carriers sought to protect themselves from excessive liability through exclusion clauses in their contracts of carriage,15 but the attitude of the courts to these clauses varied. For instance, the English courts were tolerant, whereas the US courts were hostile.16

The Warsaw Convention, a product of a specialist committee established by the Conférence Internationale de Droit Privé Aérien, was given effect in English law by the Carriage of Air Act 1932 (now repealed by the Carriage of Air Act 1961). The Warsaw Convention 1929 is still a part of English law as a result of its reincorporation through the Carriage by Air Act (Application of Provisions) Order 1967.

Apart from introducing extensive documentation requirements, the convention creates a scheme of liability that places the burden of proof on the carrier. Briefly, fault on the part of the carrier is presumed on proof of damage. The onus is on the carrier to show that he, his servants or agents have taken all necessary measures to avoid the damage. In return for this onerous burden, the convention protects the carrier by limiting the amount of damages that can be awarded against him. The carrier, however, loses this benefit where the plaintiff establishes that damage was the result of wilful misconduct on the part of the carrier, his servants or agents.

Warsaw Convention as amended by the Hague Protocol 1955

(Hereinafter ‘amended version’.)

Low limits of liability for death of passenger and the difficulty of interpreting the phrase ‘wilful misconduct’ in the Warsaw Convention 1929 led to the drafting of the Hague Protocol. The amended version is part of English law and was implemented by the Carriage by Air Act 1961.

12See Chapters 8 and 9.

13For example, the Montreal Intercarrier Agreement, 1966; IATA Intercarrier Agreement on Passenger Liability 1995. See also Fincher, ‘Watching liability limits under the Warsaw Convention fly away and the IATA Initiative’ (1997) 10 Transnational Law 309. For a European perspective, see Ortino and Jurgens, ‘The IATA agreements and the European regulation: the latest

attempts in the pursuit of a fair and uniform liability regime for international air transportation’ [1999] Journal of Air Law and Commerce 377.

14The US threatened to pull out of the Warsaw Convention if higher liability limits for passengers were not agreed.

15The International Air Traffic Association, established in 1919, produced standard form contracts with suitable exclusion clauses for use by carriers.

16See Chapter 8, Introduction on the attitude of English courts toward exclusion clauses in bills of lading.

Guadalajara Convention 1961

The unamended and amended versions do not make clear whether the actual carrier – that is, the one who actually carries but is not the contracting or successive carrier (mentioned in the Warsaw Convention) – is protected. The Guadalajara Convention, therefore, extends the protection of the Warsaw Convention to actual carriers. It is part of English law by virtue of the Carriage by Air (Supplementary Provisions) Act 1962.

Guatemala Protocol 1971

The Guatemala Protocol introduces major amendments to carrier liability and documentation in respect of carriage of passengers and their baggage. The convention is not yet in force.17 The Carriage by Air and Road Act 1979 provides for the Protocol to be implemented into English law.

Montreal Additional Protocols Nos 1–3

The unit of account for calculation purposes in the amended and unamended versions of the convention is the Poincaré franc defined as ‘consisting of 65½ milligrams of gold of millesimal fineness 900’.18 However, because of the fluctuation of gold value, it was felt that the Special Drawing Right (SDR) based on a basket of currencies was a better unit for calculation purposes.19 The Montreal Additional Protocols Nos 1, 220 and 3 express liability limits in terms of SDRs. Montreal Additional Protocol No 3 is not in force and relates to Guatemala Protocol. There is, however, provision in the Carriage by Air and Road Act 1979 to enable implementation of Protocol No 3 into English law.

Montreal Additional Protocol No 4

(Hereinafter Montreal4.)

Montreal4 introduces major changes to the liability scheme. It came into force on 14 June 1998 and is part of English law.21

Both the Warsaw Convention 1929 (the unamended version) and the Warsaw Convention 1929 as amended by the Hague Protocol 1955 (the amended version) exist side by side. Since, for the most part, they are similar, the emphasis in this chapter will be on the amended version. So, reference to Warsaw Convention (or the convention) in this chapter will be to both versions, unless otherwise indicated. Points of difference between the amended and unamended versions will be considered where relevant. Where required, attention is also drawn to amendments introduced to the Hague Protocol 1955 (amended version) as a result of the coming into force of Montreal4 so that a reader will be able to appraise the changes and improvements introduced over a period of seventy years. Although the convention applies to carriage by air of cargo, passengers and baggage,

17The table of the various conventions affecting air, their status and details of ratifications, can be obtained from ICAO’s website available at www.icao.org. ICAO stands for International Civil Aviation Organization.

18Art 22(4) of the Warsaw Convention 1929 and Art 22(5) of the Warsaw Convention as amended at The Hague 1955.

19Bristow, ‘Gold franc: replacement of unit of account’ [1978] LMCLQ 31; Costabel, ‘Gold values in carriage of goods conventions – an up-to-date review’ [1979] LMCLQ 326; Kindelberger, ‘The SDR as international money’, in Kindelberger (ed),

International Money: A Collection of Essays, 1981, Allen and Unwin.

20Montreal Protocols 1 and 2 are part of English law. Both Protocols came into force on 15 February 1996. For further information on ratifications and accessions to the various instruments, visit www.icao.org who maintain a database. Also see Carriage by

Air (Application of Provisions) Order 1967 (Fourth Amendment Order) SI 1998/1058; Carriage by Air and Road Act 1979 (Commencement No 2 Order) SI 1997/2565 regarding their implementation into English law.

21Carriage by Road and Air Act 1979 provided for its implementation into English law once Montreal4 came into force; see also Carriage by Air Acts (Implementation of Protocol No 4 Order) SI 1999/1312; SI 1999/1737.