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Lale Selamoğlu Kaplan

Warsaw Convention Convention for the Unification of Certain Rules

Issue 3 - 2020
Warsaw Convention  Convention for the Unification of Certain Rules
by Lale Selamoğlu Kaplan

Relating to international carriage by air

The Convention for the Unification of certain rules relating to international carriage by air, commonly known as the Warsaw Convention, is an international convention, which regulates liability, in the event of an accident, for international carriage of persons, luggage or goods performed by aircraft. The Convention was the first comprehensive legal framework governing aviation at the international level, playing an essential role in supporting the development of the sector and establishing a set of principles, most of which are still effective and constitute the basis of modern aviation law. The convention of 1929 came into force on 13 February 1933. The Warsaw Convention was established to create a legal basis for commercial aviation, both cargo and passenger. Specifically, it allowed for the basis of liability to be assigned to air-carriers in the event of an accident.

This Convention mandates carriers to issue passenger tickets; requires carriers to issue baggage checks for checked luggage; creates a limitation period of 2 years within which a claim must be brought; and limits a carrier`s liability (maximum of 125,000 Poincare francs (approx. 16,000 USD) for personal injury; 250 Poincare francs per kilogram for checked luggage and cargo; 5,000 francs for the hand luggage of a traveler). The sums limiting liability shall be deemed to refer to the French franc consisting of 65 milligrams gold of millesimal fineness 900, which may be converted into any national currency in round figures.

While the limits of the Warsaw Convention remained insufficient with the economic growth, the ICAO council convened a Diplomatic Conference held on September 1955 at The Hague at which the Warsaw Convention of 1929 was amended by The Hague Protocol, after extensive studies. The limit of liability with respect to persons had been doubled to 250,000 francs; in other respects, the Protocol made only minor adjustments or clarifications, and contributed to some simplifications of the documents of carriage. The Hague Protocol to the Warsaw Convention entered into force on 1 August 1963.

Formally entitled Convention 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, a new convention was developed and signed at the Diplomatic Conference held in 1961 at Guadalajara, Mexico, for further efforts to advance the cause of passenger rights. This Protocol held carriers strictly liable for up to 1,500,000 francs (US$100,000) of proven damages in the event of passenger death or injury, but that amount constituted an unbreakable limit on liability per passenger, even if the carrier engaged in willful misconduct. (Willful misconduct generally means a knowing violation of a reasonable and uniformly enforced rule or policy. It means intentionally doing that which should not be done or intentionally failing to do that which should be done, knowing that injury to a person will probably result or recklessly disregarding the possibility that injury to a person may result.)

The 1975 Montreal Protocols

At the 1975 diplomatic conference, called primarily to deal with cargo issues, the key substantive provisions of the Guatemala City Protocol were incorporated into Additional Protocol No. 3 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, as amended by The Hague Protocol and the Guatemala City Protocol, done at Montreal September 25, 1975 (``Montreal Protocol No. 3``). In translating the Guatemala City Protocol provisions into the Montreal Protocol No. 3, the only change in content was the replacement of the gold standard with the currency conversion formula based on ``Special Drawing Rights``.

(hereinafter referred to as ``SDR,`` which is an artificial `basket` currency developed by the International Monetary Fund for internal accounting purposes.)

An SDR is an international reserve asset created by the International Monetary Fund. Under Article 23 of the Montreal Convention 1999, SDRs shall be converted into local currencies in terms of SDR at the date of the judgment. This means that the revised rates will apply to any judgments delivered after 28 December 2019, irrespective of the date of filing suit.

Also negotiated at the same diplomatic conference as Montreal Protocol No. 3 was the Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, as amended by The Hague Protocol, done at Montreal September 25, 1975 (``Montreal Protocol No. 4``). Among other things, this Protocol eliminated the outmoded cargo documentation provisions of the Warsaw Convention, thereby facilitating the application of electronic commerce to international air cargo.

For example, Montreal Protocol No. 4 eliminated the need for consignors of cargo to complete detailed air waybills prior to consigning goods to a carrier. In place of such detailed air waybills, consignors could use simplified electronic records of facilitate shipments.

Finally, there were two other Protocols negotiated at the 1975 diplomatic conference, referred to as Montreal Protocols numbers 1 and 2. These protocols related solely to the conversion from a gold standard to the SDR standard for purposes of calculating all quantitative limitations on liability under the Warsaw Convention and under the Warsaw Convention as amended by The Hague Protocol.

IIA - IATA intercarrier agreement

The International Air Transport Association (IATA) convened a worldwide Airline Liability Conference in Washington, D.C., USA, in 1995. The report of the Conference proposed the establishment of two working groups to further study and prepare drafts for a proposed inter-carrier agreement, as follows:

1) To urgently assess and report on the cost impact on airlines of an enhanced liability package;

2) To further consider and report on appropriate and effective means to secure complete compensation for passengers, when required.

The resulting IATA Inter-carrier Agreement on Passenger Liability (“IIA”) was unanimously endorsed on 31 October 1995 at the 51st Annual General Meeting of IATA held at Kuala Lumpur, Malaysia in 1995; the airlines who signed this agreement would undertake to waive the liability limits and limit the force majeure defense in regard to passenger claims. The IATA Secretariat then initiated an intensive effort to elaborate acceptable provisions to implement the IIA.

MIA - IATA Agreement on Measures to Implement the Inter-carrier Agreement

The IATA Agreement on Measures to Implement the Inter-carrier Agreement

(“MIA”) was developed; the IATA Legal Working Group met at Montreal on 3 April 1996 and the MIA was opened for signature by the air carriers; it became effective on 1 April 1997.

As the countries are signatory parties to Warsaw Convention and the amending Protocols, airlines were signatories to IIA and MIA.

The successive modifications of the 1929 Warsaw Convention, coupled with increasing mobility of passengers and the globalization of the air transport industry, have resulted in a high level of complexity and fragmentation of the Warsaw System, and a corresponding loss of relevance for the travelling public and the air transport industry. The above developments finally led to the ICAO seeking to draw up a new convention to replace the Warsaw System. The ICAO Legal Committee, at its 30th Session held in Montreal in May 1997, approved the text of a draft Convention for modernizing the Warsaw System of air carrier liability, to be adopted later by a Diplomatic Conference.

1999 Montreal Convention - convention for the unification of certain rules for international carriage by air

The Montreal Convention 1999 is a treaty that was made with the aim of unifying the existing rules of international carriage by air. It was envisaged that the convention would be a universal treaty for governing airline liability in the case of death or injury to passengers, as well as in cases of delay, damage or loss of baggage and cargo.

There are currently more than 135 parties to the Warsaw Convention either in its original form or one of its amended forms. Some countries separately have adopted laws or regulations relating to international carrier liability. In addition, as noted earlier, there are private voluntary agreements among carriers relating to liability like IAA and MIA. The result of these many instruments is a patchwork of liability regimes. The new Convention is designed to replace the Warsaw Convention and all of its related instruments and to eliminate the need for the patchwork of regulation and private voluntary agreements.

The Montreal Convention (formally, the Convention for the Unification of Certain Rules for International Carriage by Air) is a multilateral treaty adopted by a diplomatic meeting of ICAO member states in 1999. The Convention attempts to reestablish uniformity and predictability of rules relating to the international carriage of passengers, baggage and cargo. Whilst maintaining the core provisions which have served the international air transport community for several decades (i.e., the Warsaw regime), the new treaty achieves modernization in a number of key areas.

The most significant changes have occurred regarding the liability of air carriers in case of passenger`s injury or death.

Montreal Convention consists of a preamble and a total of 57 articles, which are grouped into seven chapters. The Convention retains the structure of the Warsaw Convention and has the same scope of application as the original Convention from1929.

The most notable features of the new Convention include:

(1) it removes all arbitrary limits on recovery for passenger death or injury,

(2) it imposes strict liability on carriers for the first 100,000 SDR of proven damages in the event of passenger death or injury,

(3) it expands the bases for jurisdiction for claims relating to passenger death or injury to permit suits in the passenger`s homeland if certain conditions are met;

(4) it clarifies the obligations of carriers engaged in code-sharing operations; and

(5) it preserves all key benefits achieved for the air cargo industry by Montreal Protocol No. 4.

The Convention generally is limited by Article 1 to commercial international air carriage, including flights between two States Parties to the Convention or a round trip from a State Party to the Convention with an agreed stopping point in another State, regardless of whether that State is party to the Convention.

Articles 3 through 11 of the Convention discuss documentation requirements for international air carriage of passengers, baggage, and cargo. Most significantly, they preserve the benefits to the cargo industry achieved under Montreal Protocol No. 4, including the elimination of the need for consignors of cargo to complete detailed airwaybills prior to consigning goods to a carrier. Under the new provisions, as under Montreal Protocol No. 4, consignors may use simplified electronic records to facilitate shipments. Articles 12 through 16 address the relative rights and obligations of carriers, consignors, and consignees of air cargo.

Article 17 defines conditions required for carrier liability for harm to passengers, including a death or bodily injury and an accident occurring within a defined time frame. Article 17 also contains rules for carrier liability for lost, damaged or destroyed baggage, just as Article 18 contains such rules for cargo. Liability for damages associated with the delay of passengers, baggage or cargo is addressed in Article 19.Consistent with provisions of the Warsaw Convention and its related instruments, Article 20 details the conditions under which a carrier can exonerate itself, wholly or partly, from liability by showing, for example, that the person claiming compensation caused or contributed to the damage by negligence or a wrongful act or omission.

The Convention, at Article 21, eliminates all arbitrary limits on air carrier liability with respect to accident victims. The carrier may avoid liability for the full amount of damages only if it proves that it was not negligent or that a third party was solely responsible for the damages. Thus, victims or their heirs may recover all provable damages allowed under applicable State law, in contrast to the arbitrary caps under the Warsaw Convention and its related instruments. As a further benefit for accident victims, Article 21 holds carriers strictly liable for the first 100,000 SDR of proven damages for each passenger, i.e., the carrier may not avoid liability for this amount, even if the carrier can prove that the harm was not caused by its negligence. The only exception to this strict liability is that the carrier may be able to avoid paying any damages under the exoneration (i.e., contributory negligence) provisions of Article 20.

Two-tiered liability regime

First Tier: Under the Montreal Convention, air carriers are strictly liable for proven damages up to 100,000 SDR revised:128.821 special drawing rights (SDR).

Second Tier: Where damages of more than 100.000 SDR revised:128.821 SDR are sought, the airline may avoid liability by proving that the accident, which caused the injury or death was not due to their negligence or was attributable to the negligence of a third party and this second tier has no limit. This defense is not available where damages of less than 128.821 SDR are sought. Article 22 generally preserves limits on liability in relation to delay, baggage, and cargo. These limits;

5,346 SDR for delay of passengers;

1,288 SDR per passenger for claims related to baggage;

22 SDR per kilogram for cargo.

Article 24 of the Convention provides for inflation based increases every five years of the various SDR amounts and limits that remain in the Convention. Operation of the provision would result in inflation-based increases whenever the inflation factor exceeds ten percent at the time of a review. However, if a majority of States Parties register timely disapproval of an increase, then the matter is referred to a meeting of States Parties. This provision applies to the limit of ``strict`` liability set by Article 21 for passenger claims and the Article 22 limits in relation to delay, baggage and cargo.

Article 25 acknowledges the rights of carriers to stipulate the raising or eliminating of the limits of liability established by the Convention. As a result of the first review of limits of liability conducted by ICAO in accordance with Article 24,

The Convention has a provision on advance payments, Article 28, which acknowledges the right of States to have national laws that require their own carriers to make such payments in the event of passenger death or injury and addresses certain procedural issues related to such payments.

The Convention also amended the jurisdictional provisions of Warsaw and now allows the victim or their families to sue foreign carriers where they maintain their principal residence and requires all air carriers to carry liability insurance. The Convention`s provision on jurisdiction, Article 33, the creation of a ``fifth jurisdiction`` to supplement the four bases of jurisdiction provided under the Warsaw Convention. Article 33(1), like the Warsaw Convention, allows a suit to be brought against a carrier in the country:

(1) of its incorporation,

(2) of its principal place of business;

(3) where the ticket was purchased, and

(4) of destination of the passenger. Article 33(2) of the new Convention allows cases involving the death or injury of a passenger to be brought in the country of the passenger`s principal and permanent residence, so long as the carrier provides service to that country, either directly or via a code share or other similar arrangement with another carrier, and the carrier conducts business there from premises leased or owned by it or by a carrier with which it has a commercial arrangement, for example, a code-share arrangement. Given the number of carriers whose operations in the United States satisfy these criteria, this fifth jurisdiction provision should ensure that nearly all U.S. citizens and other permanent residents of the United States have access to U.S. courts to pursue claims under the Convention


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