provisions relating to carriage of passengers or baggage will not be examined here since they are beyond the scope of this book.

Before proceeding, brief mention needs to be made of situations where an air carriage does not fall within the ambit since it does not meet the criteria of international air carriage22 as set out by the Warsaw regime. This situation is addressed in English law by the Carriage by Air Acts (Application of Provisions) Order 1967.23 Often called non-Convention Rules, they apply to carriage that takes place from the United Kingdom (UK) or to the UK to a state or from a state not party to the conventions. It does not have any effect on a contract of carriage made and performed in a foreign state or between two foreign states.24

Approach to interpretation of the Warsaw Convention in the English courts

As highlighted in Chapter 8, English courts have a tradition of taking a flexible attitude in interpreting international commercial conventions.25 They generally do not follow precedents set in domestic law,26 but construe the language of the convention on ‘principles of general acceptation’. They are also willing to look, with caution, at the travaux préparatoires27 (where available), and the foreign language text where the English text is unclear. Their attitude to the interpretation of the Warsaw regime is no different. In Fothergill v Monarch Airlines,28 the House of Lords adopted a flexible approach by looking to the object of the provision under consideration and also turned to the French text for the purposes of interpretation.29 They are also willing look to the decisions of other courts for purposes of interpretation. As Lord Denning observed in Corocraft Ltd v Pan American Airways Inc,30 ‘even if I disagreed, I would follow them in a matter which is of international concern. The courts of all the countries should interpret this convention in the same way’ (at p 655).

Scope of application of the Warsaw Convention (unamended and amended versions)

Both the amended and unamended versions apply to international carriage of cargo, passengers and luggage performed by aircraft for reward (Art 1(1)). In the absence of a definition of aircraft, presumably all airborne crafts, whether powered engines or not, such as aeroplanes, helicopters,31 gas balloons and gliders, come within their ambit. Although performance for reward is another requirement for applicability, Art 1(1) does not rule out gratuitous carriage altogether since it states

22See ‘Scope of Application of the Warsaw Convention (Unamend and Amended Versions)’, below for the meaning of ‘international air carriage’.

23This Order was made under the Carriage by Air Act 1961. See also Warsaw Convention 1929.

24See Holmes v Bangladesh Biman Corp [1989] 1 All ER 852; see Lord Bridge at pp 860–1 and Lord Griffiths at p 877.

25See Munday, ‘The uniform interpretation of international conventions’ (1978) 27 ICLQ 450.

26See Rustenburg Platinum Mines Ltd v South African Airways [1977] 1 Lloyd’s Rep 564, at pp 576–7; also [1979] 1 Lloyd’s Rep 19, at p 23.

27Data Card Corp v Air Express International Corp [1983] 2 All ER 639, at p 644.

28[1981] 2 AC 251.

29The Carriage by Air Act 1961 also provides in s 1(2) that, in the event of inconsistency between the English text and the French text, the latter, available in Part II of the Schedule to the Act, prevails.

30[1969] 1 QB 616.

31In Barnes v Service Aérien Français (Cour de Cass, 6 February 1996), carriage by helicopter qualified for the application of the Warsaw Convention.

that the Warsaw Convention applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.32

As for cargo, the convention does not exclude live animals like the Hague Rules or HagueVisby Rules in respect of carriage by sea.33 Presumably, there was no need to exclude live animals since journey times for air transport are much shorter than for sea transport. However, in the context of sea carriage, quarantine restrictions are often cited as reasons for excluding live animals from the ambit of the Hague and Hague-Visby Rules.That reason applies equally here. It is possible that, to promote an infant industry, the framers of the Warsaw Convention may well have included live animals within its scope. Carriage of mail and postal packages are, however, excluded, since these are normally subject to international postal conventions (Art 2(2)).34

International carriage is defined in Art 1(2) of the amended version as:

... any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transshipment, are situated either within the territories of two High Contracting Parties or within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another state, even if that state is not a High Contracting Party. Carriage between two points without an agreed stopping place within the territory of another state is not international carriage for the purposes of the convention.

According to this definition, an agreement to carry goods in the following situations will be international:

•Goods carried from a place of departure in state X to a place of destination in state Y where both states are parties to the amended version of the convention; and

•Goods carried from a place of departure in state X to a place of destination in the same state with an agreed stopping place in state Z (whether state Z is a party to the convention would not be relevant).35

Where one of the states is a party to the unamended version and the other a party to the amended version, the amended version will not apply to the agreement.36 For instance, an agreement to carry goods from London (a party to the Hague Protocol) to state Y (not a party to the Hague Protocol) will not be governed by the Warsaw Convention as amended by the Hague Protocol, since state Y is not a party to the amended version. However, since the unamended version is still a part of English law by virtue of Carriage by Air Acts (Application of Provisions) Order 1967, the contract of carriage will be subject to the Warsaw Convention 1929.

The emphasis in Art 1(2) is on agreement. So, where an aircraft crashes on take-off at the place of departure or force lands within the state of departure,37 the contract will be subject to the convention. Similarly, where the aircraft proceeds to the airport of destination without landing at the agreed stopping place, the contract will still be subject to the convention.

32This means that a passenger travelling on a free ticket obtained as a result of collecting air miles on a British Airways flight would be subject to the Warsaw regime.

33See Chapter 8, kinds of cargo.

34Article 2(2). Note that the wording in the amended and unamended versions are different.

35See Grein v Imperial Airways Ltd [1937] KB 50, where a ticket from London-Antwerp-London was held to be international, even though Belgium had not ratified the Warsaw Convention, 1929. See, however, the dissenting judgment of Greer LJ.

36See United International Stables Ltd v Pacific Western Airlines (1969) 5 DLR (3d) 67 BCSC.

37Supernant v Air Canada [1973] CA 107.

The voyage may be broken into stages and different carriers used for the different stages. Where the parties contemplate the carriage to be a single operation, the carriage will be regarded as international, even though one stage of the carriage is performed within the same state (Art 1(3)). The successive air carrier will come within the ambit of the Warsaw Convention and will be responsible for the part of the carriage he performs (Art 30(1)).

However, for a carrier to be regarded as a successive carrier for the purposes of the Warsaw Convention, there must be prior agreement between the consignor and the contracting carrier to use a particular carrier as a successive carrier. Where a carrier is used for a part of the journey without prior consent from the consignor, it is questionable whether the actual carrier will come within the ambit of the unamended and amended versions of the convention. This ambiguity is resolved by the Guadalajara Convention 1961 (part of English law).38 Article I(c) of the Guadalajara Convention defines actual carrier as:

... a person, other than the contracting carrier, who, by virtue of authority from the contracting carrier, performs the whole or part of the carriage . . . but who is not with respect to such part a successive carrier within the meaning of the Warsaw Convention.

According to Art II, the actual carrier is subject to the Warsaw Convention and is responsible for the part of the carriage he performs.

The situation with regard to international carriage in the unamended version (Art 1(2)) is no different apart from the slight difference in the wording of the provision.

Both versions of the Warsaw Convention make provisions regarding liability where combined transport is concerned – that is, where cargo is carried partly by aircraft and partly by other means of carriage, such as sea or road.39 In the event of combined transport, only part of the carriage performed by air is subject to the convention (Arts 31 and 18).

It is not uncommon for some of the operations prior to loading to involve other forms of transport. Where this takes place in the performance of the contract, it will be regarded as carriage by air (Art 18).

Contracting out

Article 23 of the Warsaw Convention (unamended and amended versions) renders null and void any ‘provision tending to relieve the carrier of liability or to fix a lower limit’ to which the carrier would otherwise have under the convention. The nullity of such a clause however does not affect the whole contract.

Article 32 renders null and void a choice of jurisdiction or a choice of law clause that is agreed prior to the damage. Presumably, this is to avoid disadvantaging one of the parties.The emphasis on agreements reached before the damage in Art 32 suggests that parties are free to agree on jurisdiction or choice of law after the damage. This would not be objectionable on policy grounds, since both parties will have the opportunity to assess the situation.

An agreement to submit the dispute to arbitration is allowed under the convention, provided it relates to carriage of goods, and the arbitration conducted in one of the places specified in Art 28(1).

38See Art 39 Montreal Convention.

39For the application of the Convention on the International Carriage of Goods by Road 1956 to carriage involving air and road transportation, see Quantum Corp Inc and Others v Plane Trucking Ltd and Another [2002] 2 Lloyd’s Rep 25 and Chapter 12.

The carrier can increase his liability to a sum greater than that set by the convention, provided the consignor, when handing the package over to the carrier, has made a declaration of the value at delivery and, where required, paid the supplementary sum or surcharge (Art 22 of the unamended version; Art 22(a) of the amended version). The consignor’s declaration on value at delivery, other than the actual value of the goods, may include profits expected on resale. Where the value includes overoptimistic profit figures, the carrier can rebut the presumption raised by the consignor’s declaration.

Documentary responsibilities

The documentary responsibilities are not uniform in the unamended and amended versions of the convention. The unamended version calls for a long list of particulars, whereas the amended version tries to keep it to a bare minimum. The approach adopted in the latter is also followed in Montreal4.

Amended version

The document used in carriage of cargo under the amended Warsaw Convention is called an air waybill. The consignor has the responsibility of making out three parts (Art 6(1)) of the air waybill and deliver it with the cargo to the carrier (Art 5(1)). The first part, marked ‘for the carrier’, requires the signature of the consignor. The second part, marked ‘for the consignee’, and signed by the consignor, as well as the carrier, accompanies the cargo. The third part, signed by the carrier, is handed by him to the consignor after the acceptance of the cargo (Art 6(2)).

Where the carrier prepares the air waybill at the request of the consignor, he will have presumed to have done this as an agent for the consignor (Art 6(5)). The air waybill must include:

•the places of departure and destination (Art 8(a));

•if the places of departure and destination are within the territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another state, an indication of at least one such stopping place (Art 8(b)); and

•a notice to the consignor to the effect that, if the carriage involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the convention governs and in most cases limits the liability of carriers in respect of loss of or damage to cargo (Art 8(c)).

Although the convention requires only the provided particulars to be entered on the air waybill, it is common for the air waybill to include information such as number of packages, weight, apparent condition of the cargo and nature of the cargo.

The air waybill is prima facie evidence of the conclusion of the contract, the terms of carriage and receipt of the goods (Art 11(1)). Where the waybill contains statements as to the weight and packing of the goods, these will be prima facie evidence and the carrier will be able to adduce evidence to the contrary. As for statements relating to contents of the package and the actual condition of the goods, these will not be regarded as evidence, unless they are checked by the carrier and are stated to have been checked by the carrier. As for statements regarding the apparent condition of the goods, it seems it will be regarded as prima facie evidence since Art 11(2) makes a distinction between condition and apparent condition of the goods.

Documentation is an important aspect of the convention with the result that, where goods are loaded without an air waybill with the consent of the carrier, the carrier loses the benefit of