Air Transport Conventions I

The Warsaw Convention deals with the limitation of liability for loss and damage incurred by passengers and cargo in air transport. The first Warsaw Convention made in 1929 was the Convention for the Unification of Certain Rules Relating to International Carriage by Air.

The Warsaw Convention has been amended and has been ultimately replaced by the Montréal Convention made in 1999. The latter Convention has been adopted by over 100 states including the United States and the EU States, but has not been adopted universally.  Either the Warsaw or Montréal Convention may apply to air accident or incident.

The Warsaw and Montreal Conventions makes substantive provisions that are given effect in the domestic law of ratifying states. States agreed in the Conventions to incorporate the provisions of the Warsaw Convention and later the Montréal Convention into their national law.

The Conventions did not establish any judicial or enforcement mechanism. Its provisions are given effect domestically, through the courts and legal systems of the participant signatory states.

The IATA which is the representative body for airlines, incorporate the terms and conditions provided in the relevant Convention, into their standard contracts for carriage. It has updated terms and conditions to reflect the amending and replacement Conventions. It remains incorporated in electronic tickets which have now become almost universal.

Air Transport Conventions II

The Conventions were driven by perceived necessity to cap liability for damages in order to reduce the airline industry’s exposure to claims. This was seen as necessary in the earlier days of aviation to encourage investment and innovation.

The Conventions place presumptive liability for damages, death and injury to passengers or loss to baggage and cargo on the airline. This reflects, in one sense, the common law common carrier principle of unconditional liability.

States agree under the Convention to limit the liability of carriers to passengers for personal injuries and loss to cargo. The initial caps have been revised at first to reflect changes in the value of currencies and inflation.

Liability could be avoided, even within the original caps by proving that all necessary measures had been taken to avoid the alleged wrongdoing or showing that it was impossible to take these measures.

Amending Protocols

The Hague Protocol in 1955 doubled the liability caps. Wilful misconduct on the part of the carrier removed the liability cap. This was replaced by the 1955 Hague Protocol which removed the liability cap, if it was proved that the damage or injury resulted from an act or omission of the carrier, which was undertaken either with intent to cause damage or done recklessly with knowledge that such act or omission would probably result in damage or injury.

The US did not ratify the Hague Protocol because it was dissatisfied with the revised liability cap, which the American courts sought to avoid.

The Guadalajara Supplementary Convention confirmed that when carriers provide a single service under a contract of carriage, they are protected by the Warsaw Convention in respect of the part of the journey which they undertake. Although 84 States ratified this Convention, the United States did not do so.

The IACO promoted the Montréal Protocols in 1975. It replaced the monetary standard by International Monetary Fund “Special Drawing Rights” as the notional currency. A liability cap of 100,000 SDR rights was provided. It contemplated electronic agreements and transactions. The liability for cargo was increased to 17 SDR per kilogram (c.$25). It was, once again rejected by the United States.

Liability Limits

The Warsaw Convention allows carriers, to agree by contract to higher limits of liability and to agree on terms and conditions which did not conflict with the Convention.

Under the Montreal Agreement between the US and IATA in 1975, IATA airlines consented to an increased liability of €75,000 for international flights with a United States stopping point, origin or destination.

By the IATA Intercarrier Agreement 1995 carriers agreed to waive the Warsaw Convention and Hague Protocol limitations for liability for personal injuries and death arising out of most accidentsThe agreement provides for full liability for passenger injury or death.  It waives the “all necessary measures” defence for the elements of claims below 100,000 SDR. Strict liability applies below 100,000 SDR. In respect of claims above that level,a defence on the basis of necessary measures applies.

The EU adopted a Regulation in 1997 applicable to airline licensing in the EU. It in effect replicated the IATA agreement between carriers. Airlines are subject to unlimited liabilities for passenger injuries. The strict liability provisions apply with the  “all necessary measures” defence for the part of the claim above 100,000 SDR.

Montreal Convention

By the end of the 20th century, the limitations on liability for personal injury seen as inappropriate, given the development of the airline industry and general principles of liability.

The Montréal Convention accords with the IATA agreement and abolished limits on recovery for death and personal injury. There is strict liability for proven damage up to 100,000 SDR. There is unlimited liability above this level with a relatively limited number of defences.

The Convention applies where a point of departure or arrival are in two states which have adopted the Convention or within a single state if in that latter case, there is a stop in another State regardless of whether that state is party to the Convention. It does not apply to flights within States, even if they cross third-party territory.

When there are successive carriers, the claim may be brought against the carrier which performed the carriage during the accident or delay occurred. This is unless the first carrier undertook liability for the entire trip, expressly. The issue is less common in modern times, where code sharing and partnership arrangements are common. The carrier’s liability includes contractor’s liability under code-sharing arrangements and they are not a successive carrier as such.

Clauses in international air carriage contracts which purport to change the law to be applied or the jurisdiction are rendered void. This makes the Montréal system, in effect, mandatory. Clauses which purport to relieve the carrier are ineffective to the extent they are inconsistent with the Convention.

Scope of Montreal Convention and Limitations

The Montréal Convention is intended to cover carriage by entities other than the contracting carrier, including codeshare partners. This extends the coverage to alliance partners which perform parts of international transport. carriage, which are not the carrier who contracts with the passenger.

The Montréal Convention is less prescriptive in relation to documentary procedures which apply respect to the carriage of cargo. They are largely left for agreement between the consignor and carrier. The consignor remains responsible for the accuracy of the details appearing on the airway bill. The rights of the consignor and  consignee regarding the air carrier are broadly retained from the Warsaw regime.

The air waybill should set out the weight of the consignment, the place of departure and destination in any applicable foreign stopping place, in the case of transport within a State.

A carrier may reduce liability for loss of or to cargo due to any of the following events:

  • an apparent defect, quality or vice;
  • defective packaging performed by an entity other than the carrier;
  • the act of war or armed conflict;
  • the act of a public authority in connection with the entry, exit or transit.

Ticketing under Montreal Convention

The older Warsaw regime rules regarding the content and nature of the ticket are abandoned. Electronic ticketing is facilitated. Airlines must give passengers notice of the Convention’s liability rules. The failure to do so does not automatically avoid the limitations.

The former requirement for luggage ticket is no longer applicable. A baggage identification tag must be supplied in respect of each piece of checked luggage.

An individual or collective document of carriage of passengers includes details of stopping destinations in third States where inter-State travel is involved.

Death and Personal Injury

The Convention applies to accidents causing death or injury that takes place on board an aircraft or in the course of operations of embarking and disembarking. Accidents generally are understood to be an unusual or unexpected event, which is not self-inflicted. The reaction to the normal operations of the aircraft would not constitute an accident. A self-inflicted injury by an intoxicating person is an accident. The failure to provide medical assistance does not appear to be an accident.

The Convention applies to an accident arising from air travel. The accident must be characteristic of air travel or derived from it. Claims based on deep vein thrombosis are generally not considered accidents.

The accident must cause death or personal injury in order to fall within the Convention. In recent decades, the courts in most western jurisdictions have extended the concept of bodily injury to include certain psychological injuries with demonstrable, diagnosable characteristics. Psychological harm has been widely accepted in respect of posttraumatic shock.

The Montréal Convention had contemplated negotiations incorporating a reference to mental injury as such. However, it simply refers to bodily injury which may refer to both physical and mental injury.

Limits and Ceilings

Strict liability applies up to 100,000 SDRs. Unlimited liability above that level. The earlier reforms referred to above are reflected. The claimant must prove damages up to €100,000. The only defence, is in effect, contributory negligence. Over €100,000, it is presumed the air carrier is responsible unless it proves that damages were not due to its negligence or wrongful act or that such act was due solely to the negligence or wrongful act of a third-party. In practice, it is difficult for air carriers to invoke the defences, as they have to disprove negligence.

The SDR ceilings may be reviewed every five years by ICAO. If inflation exceeds 10% cumulatively, procedures apply to adopt the variation under ICAO procedures. Provision is made for translation of SDRs into the relevant domestic currency.

Parties may agree higher limits than those specified above or no limits whatsoever.

Where an aircraft accident results in death or injury, the airline must, if its national law so requires, make advance payments without delay to persons who are entitled to compensation to meet their immediate economic needs.

The Convention prohibits punitive, exemplary and other non-compensatory damages.

Actions for damages, whether under the Convention or in contract or tort must be brought under the conditions and liabilities set out in the Convention. Accordingly, no other forms of action are permitted under domestic tort, civil liability or contract law.

Basis of Jurisdiction

The Montréal Convention, in common with the Warsaw Convention, provides the basis of jurisdiction on a number of alternative grounds:

  • the domicile of the air carrier;
  • its principal place of business;
  • its place of establishment that made the contract of carriage;
  • the final destination.

Further ground applies in the case of liability for death and injury, namely that where the passenger has his principal and permanent residence when the accident occurred. The State of residence must be a place to and from the carrier operates services for the carriage of passengers by air, either on its own aircraft or in another’s aircraft, pursuant to a commercial agreement and in which the carrier conducts its business of carriage or passengers by air from premises leased or owned by the carrier itself or by another carrier with whom it has a commercial agreement.

Procedural questions are governed by the law of the court concerned in accordance with well-established conflict of law rules.

Recourse to Third Parties

The Convention does not prejudice liability or recourse against any other party. This allows the claimant, carrier and other parties to claim and seek indemnities from third parties, such for example, as a negligent manufacturer.

States must require carriers to maintain adequate insurance covering their liability under the Convention. They may require the proof of insurance to be carried and produced.

In common with the Warsaw Convention, the Montréal Convention is enforced by domestic courts. There is no dispute resolution mechanism as such.

Liability for Delay

The Montréal Convention provides for recovery of damages for delay. This is capped at 4150 SDRs. Liability for baggage delay is limited to 1130 SDR.  17 SDR per kilogram is the maximum recovery.

Carriers who have taken all measures reasonably required to avoid the delay may avoid liability Equally, they may be able to show that it was impossible to take such measures. The provisions require court action in respect of delay may not be generally economic to take.

A standalone  EU 2004 Regulation provides for fixed liability for delay, cancellation and the denied boarding claims. It provides a more efficient remedy and supervenes the above provisions in some cases.

Airfreight Insurance

Liability for air freight is limited in accordance with the Warsaw and Montreal Conventions. They govern the international carriage of goods by air. They define the carrier’s responsibilities, bases of liability, financial liability limits, responsibility for sub-contractors, documents requirements, consigners liabilities, special provisions regarding dangerous goods and claim time limits.

Freight forwarders and other supply chain parties usually operate under conditions of limited liability. They are unlikely to offer compensation equal to the value of the goods if they are lost or damaged.  The full replacement cost for a consignment of any applicable freight costs should be protected by adequate insurance cover. Insurance cover will not cover consequent or indirect loss such as financial loss incurred as a result of the delay.

It is essential to ensure that consignments are adequately insured. A broker or freight forwarder may offer guidance. The European Union insurance Mediation Directive regulates brokers and insurers including freight forwarders providing insurance broker service.

References and Sources

Consumer Law  Long      2004

Consumer Law Rights & Regulation          Donnelly & White 2014

Commercial Law White  2nd ed    2012

Commercial & Economic Law in Ireland  White    2011

Commercial Law Forde  3rd ed    2005

UK Texts

Schmitthoff: The Law and Practice of International Trade 13th ed Carole Murray, David Holloway, Daren Timson-Hunt, Schmitthoffs 2018

Multimodal Transport Law Michiel Spanjaart 2017

Contracts of Carriage by Air (Maritime and Transport Law Library) 2010  Clarke

Crriage of Goods by Sea, Land and Air: Uni-modal and Multi-modal Transport in the 21st Century (Maritime and Transport Law Library) 2013  Soyer   Andrew Tettenborn (Editor)

An Introduction to Air Law 9th Ed 2012  Diederiks-Verschoor (Author), Pablo Mendes de Leon)