Basis of Claim
In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under the Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in the Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.
Nothing contained in the Convention shall prevent the carrier from refusing to enter into any contract of carriage, from waiving any defences available under the Convention, or from laying down conditions which do not conflict with the provisions of the Convention.
A carrier may stipulate that the contract of carriage shall be subject to higher limits of liability than those provided for in the Convention or to no limits on liability whatsoever.
Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in the Convention shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of the Convention.
In the case of aircraft accidents resulting in death or injury of passengers, the carrier shall, if required by its national law, make advance payments without delay to a natural person or persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons. Such advance payments shall not constitute a recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier.
Limits of liability in relation to delay, baggage and cargo
In the case of damage caused by delay as specified in in the carriage of persons, the liability of the carrier for each passenger is limited to 4150 Special Drawing Rights.
In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1000 Special Drawing Rights for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case, the carrier will be liable to pay a sum not exceeding the declared sum unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination.
In the carriage of cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of 17 Special Drawing Rights per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case, the carrier will be liable to pay a sum not exceeding the declared sum unless it proves that the sum is greater than the consignor’s actual interest in delivery at destination.
In the case of destruction, loss, damage or delay of part of the cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier’s liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the destruction, loss, damage or delay of a part of the cargo, or of an object contained therein, affects the value of other packages covered by the same air waybill, or the same receipt or, if they were not issued, by the same record preserved by the other means referred to above, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability.
Exceptions to Limits
The foregoing protections do not apply if it is proved that the damage resulted from an act or omission of the carrier, its employees or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of an employee or agent, it is also proved that such employee or agent was acting within the scope of its employment.
The limits prescribed shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff, including interest. The foregoing provision shall not apply if the amount of the damages awarded, excluding court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later.
Conversion of monetary units
The sums mentioned in terms of Special Drawing Right in the Convention shall be deemed to refer to the Special Drawing Right as defined by the International Monetary Fund. Conversion of the sums into national currencies shall, in case of judicial proceedings, be made according to the value of such currencies in terms of the Special Drawing Right at the date of the judgement.
The value of a national currency, in terms of the Special Drawing Right, of a State Party which is a Member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund, in effect at the date of the judgement, for its operations and transactions. The value of a national currency, in terms of the Special Drawing Right, of a State Party which is not a Member of the International Monetary Fund, shall be calculated in a manner determined by that State.
Nevertheless, those States which are not Members of the International Monetary Fund and whose law does not permit the application of the above provisions at the time of ratification or accession or at any time thereafter, declare that the limit of liability of the carrier prescribed is fixed at various sums of specified monetary units per passenger equivalent to those above.
The monetary unit corresponds to 65,5 milligrams of gold of millesimal fineness nine hundred. These sums may be converted into the national currency concerned in round figures. The conversion of these sums into national currency shall be made according to the law of the State concerned.
Review of limits
The limits of liability prescribed shall be reviewed at five-year intervals, the first such review to take place at the end of the fifth year following the date of entry into force of the Convention, or if the Convention does not enter into force within five years of the date it is first open for signature, within the first year of its entry into force, by reference to an inflation factor which corresponds to the accumulated rate of inflation since the previous revision or in the first instance since the date of entry into force of the Convention.
The measure of the rate of inflation to be used in determining the inflation factor shall be the weighted average of the annual rates of increase or decrease in the Consumer Price Indices of the States whose currencies comprise the Special Drawing Rights.
Employees, agents – aggregation of claims
If an action is brought against an employee or agent of the carrier arising out of damage to which the Convention relates, such employee or agent, if they prove that they acted within the scope of their employment, shall be entitled to avail themselves of the conditions and limits of liability which the carrier itself is entitled to invoke under the Convention.
The aggregate of the amounts recoverable from the carrier, its employees and agents, in that case, shall not exceed the said limits.
Save in respect of the carriage of cargo, the above provisions shall not apply if it is proved that the damage resulted from an act or omission of the employee or agent done with intent to cause damage or recklessly and with the knowledge that damage would probably result.
Timely notice of complaints
Receipt by the person entitled to delivery of checked baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage or with the record preserved by another permitted means.
In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage and 14 days from the date of receipt in the case of cargo. In the case of delay, the complaint must be made at the latest within 21 days from the date on which the baggage or cargo have been placed at his or her disposal.
Every complaint must be made in writing and given or dispatched within the times aforesaid. If no complaint is made within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on its part.
The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
The method of calculating that period shall be determined by the law of the court seised of the case.
An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.
Questions of procedure shall be governed by the law of the court seised of the case.
In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the above-mentioned courts, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.
Any action for damages under the Convention must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before a court in which an action may be brought against the contracting carrier or before the court having jurisdiction at the place where the actual carrier has its domicile or its principal place of business.
The parties to the contract of carriage for cargo may stipulate that any dispute relating to the liability of the carrier under the Convention shall be settled by arbitration. Such agreement shall be in writing.
The arbitration proceedings shall, at the option of the claimant, take place within one of the jurisdictions referred to above.
The arbitrator or arbitration tribunal shall apply the provisions of the Convention. The above provisions are deemed to be part of every arbitration clause or agreement, and any term of such clause or agreement which is inconsistent therewith shall be null and void.
Successive and Combined Carriage
In the case of carriage to be performed by various successive carriers as defined, each carrier which accepts passengers, baggage or cargo is subject to the rules set out in the Convention and is deemed to be one of the parties to the contract of carriage in so far as the contract deals with that part of the carriage which is performed under its supervision.
In the case of carriage of this nature, the passenger or any person entitled to compensation in respect of him or her can take action only against the carrier which performed the carriage during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey.
As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier which performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee.
In the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of the Convention shall apply only to the carriage by air, provided that the carriage by air falls within the terms of the Convention.
Nothing in the Convention prevents the parties in the case of combined carriage from inserting in the document of air carriage conditions relating to other modes of carriage, provided that the provisions of the Convention are observed as regards the carriage by air.
Contracting Carrier / Actual Carrier I
The following provisions apply when the contracting carrier as a principal makes a contract of carriage governed by the Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor, and another person, the actual carrier performs, by virtue of authority from the contracting carrier, the whole or part of the carriage, but is not with respect to such part a successive carrier within the meaning of the Convention. Such authority shall be presumed in the absence of proof to the contrary.
If an actual carrier performs the whole or part of carriage which, according to the contract, is governed by the Convention, both the contracting carrier and the actual carrier shall, except as otherwise provided in this Chapter, be subject to the rules of the Convention, the former for the whole of the carriage contemplated in the contract, the latter solely for the carriage which it performs.
The acts and omissions of the actual carrier and of its employees and agents acting within the scope of their employment shall, in relation to the carriage performed by the actual carrier, be deemed to be also those of the contracting carrier.
The acts and omissions of the contracting carrier and of its employees and agents acting within the scope of their employment shall, in relation to the carriage performed by the actual carrier, be deemed to be also those of the actual carrier. Nevertheless, no such act or omission shall subject the actual carrier to liability exceeding the amounts specified as the general limits of liability in the Convention.
Contracting Carrier / Actual Carrier II
Any complaint to be made or instruction to be given under the Convention to the carrier shall have the same effect whether addressed to the contracting carrier or to the actual carrier. Nevertheless, instructions referred to in Article 12 shall only be effective if addressed to the contracting carrier.
In relation to the carriage performed by the actual carrier, any employee or agent of that carrier or of the contracting carrier shall, if they prove that they acted within the scope of their employment, be entitled to avail themselves of the conditions and limits of liability which are applicable under the Convention to the carrier whose employee or agent they are, unless it is proved that they acted in a manner that prevents the limits of liability from being invoked in accordance with the Convention.
In relation to the carriage performed by the actual carrier, the aggregate of the amounts recoverable from that carrier and the contracting carrier, and from their employees and agents acting within the scope of their employment, shall not exceed the highest amount which could be awarded against either the contracting carrier or the actual carrier under the Convention, but none of the persons mentioned shall be liable for a sum in excess of the limit applicable to that person.
In relation to the carriage performed by the actual carrier, an action for damages may be brought, at the option of the plaintiff, against that carrier or the contracting carrier, or against both together or separately. If the action is brought against only one of those carriers, that carrier shall have the right to require the other carrier to be joined in the proceedings, the procedure and effects being governed by the law of the court seised of the case.
Any contractual provision tending to relieve the contracting carrier or the actual carrier of liability to fix a lower limit than that which is applicable shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Chapter.
Any clause contained in the contract of carriage and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by the Convention, whether by deciding the law to be applied or by altering the rules as to jurisdiction, shall be null and void.
Any special agreement under which the contracting carrier assumes obligations not imposed by the Convention or any waiver of rights or defences conferred by the Convention or any special declaration of interest in delivery at destination contemplated shall not affect the actual carrier unless agreed to by it.
States Parties shall require their carriers to maintain adequate insurance covering their liability under the Convention. A carrier may be required by the State Party into which it operates to furnish evidence that it maintains adequate insurance covering its liability under the Convention.
Application of Treaty
The French language text is to prevail if there is a dispute regarding differences between English and the original French text of the Contravention.
The Government may certify states which are contracting parties to the Convention.The Minister is empowered to make notifications as required or permitted by the Convention. There is an option to declare that the Convention does not apply to international flights by the State itself for non-commercial or military purposes. It is not intended to make such a notification.
The Minister may extend the Convention to apply to internal flights. Internal flights are already subject to similar provisions under EU regulations.
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
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)