In respect of the carriage of cargo, an air waybill shall be delivered. Any other means which preserves a record of the carriage to be performed may be substituted for the delivery of an air waybill. If such other means are used, the carrier shall, if so requested by the consignor, deliver to the consignor a cargo receipt permitting identification of the consignment and access to the information contained in the record preserved by such other means.
The air waybill or the cargo receipt shall include:
- an indication of the places of departure and destination;
- if the places of departure and destination are within the territory of a single State Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place; and
- an indication of the weight of the consignment.
The consignor may be required, if necessary, to meet the formalities of customs, police and similar public authorities to deliver a document indicating the nature of the cargo. This provision creates for the carrier no duty, obligation or liability resulting therefrom.
Description of air waybill
The air waybill shall be made out by the consignor in three original parts. The first part shall be marked “for the carrier”; it shall be signed by the consignor. The second part shall be marked “for the consignee”; it shall be signed by the consignor and by the carrier. The third part shall be signed by the carrier who shall hand it to the consignor after the cargo has been accepted. The signature of the carrier and that of the consignor may be printed or stamped.
If at the request of the consignor, the carrier makes out the air waybill, the carrier shall be deemed, subject to proof to the contrary, to have done so on behalf of the consignor.
When there is more than one package:
- the carrier of cargo has the right to require the consignor to make out separate air waybills;
- the consignor has the right to require the carrier to deliver separate cargo receipts when the other means referred to in above are used.
Non-compliance with the above documentary and other requirements shall not affect the existence or the validity of the contract of carriage, which shall, nonetheless, be subject to the rules of the Convention including those relating to limitation of liability.
The consignor is responsible for the correctness of the particulars and statements relating to the cargo inserted by it or on its behalf in the air waybill or furnished by it or on its behalf to the carrier for insertion in the cargo receipt or for insertion in the record preserved by the other means referred to above. The foregoing shall also apply where the person acting on behalf of the consignor is also the agent of the carrier.
The consignor shall indemnify the carrier against all damage suffered by it, or by any other person to whom the carrier is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements furnished by the consignor or on its behalf.
The carrier shall indemnify the consignor against all damage suffered by it, or by any other person to whom the consignor is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements inserted by the carrier or on its behalf in the cargo receipt or in the record preserved by the other means referred to above.
The provisions relating to the documentation of carriage do not apply in the case of carriage performed in extraordinary circumstances outside the normal scope of a carrier’s business.
Evidentiary value of documentation
The air waybill or the cargo receipt is prima facie evidence of the conclusion of the contract, of the acceptance of the cargo and of the conditions of carriage mentioned therein.
Any statements in the air waybill or the cargo receipt relating to the weight, dimensions and packing of the cargo, as well as those relating to the number of packages, are prima facie evidence of the facts stated; those relating to the quantity, volume and condition of the cargo do not constitute evidence against the carrier except so far as they both have been, and are stated in the air waybill or the cargo receipt to have been, checked by it in the presence of the consignor, or relate to the apparent condition of the cargo.
Right of disposition of cargo
Subject to its liability to carry out all its obligations under the contract of carriage, the consignor has the right to dispose of the cargo by withdrawing it at the airport of departure or destination, or by stopping it in the course of the journey on any landing, or by calling for it to be delivered at the place of destination or in the course of the journey to a person other than the consignee originally designated, or by requiring it to be returned to the airport of departure. The consignor must not exercise this right of disposition in such a way as to prejudice the carrier or other consignors and must reimburse any expenses occasioned by the exercise of this right.
If it is impossible to carry out the instructions of the consignor, the carrier must so inform the consignor forthwith.
If the carrier carries out the instructions of the consignor for the disposition of the cargo without requiring the production of the part of the air waybill or the cargo receipt delivered to the latter, the carrier will be liable, without prejudice to its right of recovery from the consignor, for any damage which may be caused thereby to any person who is lawfully in possession of that part of the air waybill or the cargo receipt.
The right conferred on the consignor ceases at the moment when that of the consignee begins in accordance with the Convention. Nevertheless, if the consignee declines to accept the cargo, or cannot be communicated with, the consignor resumes its right of disposition.
Delivery of the cargo
Except when the consignor has exercised its above rights of disposition, the consignee is entitled, on arrival of the cargo at the place of destination, to require the carrier to deliver the cargo to it, on payment of the charges due and on complying with the conditions of carriage. Unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee as soon as the cargo arrives.
If the carrier admits the loss of the cargo, or if the cargo has not arrived at the expiration of seven days after the date on which it ought to have arrived, the consignee is entitled to enforce against the carrier the rights which flow from the contract of carriage.
Relations of Parties
The consignor and the consignee can respectively enforce their above rights each in its own name, whether it is acting in its own interest or in the interests of another, provided that it carries out the obligations imposed by the contract of carriage.
The above provisions do not affect either the relations of the consignor and the consignee with each other or the mutual relations of third parties, whose rights are derived either from the consignor or from the consignee.The above provisions of can only be varied by express provision in the air waybill or the cargo receipt.
Formalities of customs, police or other public authorities
The consignor must furnish such information and such documents as are necessary to meet the formalities of customs, police and any other public authorities before the cargo can be delivered to the consignee.
The consignor is liable to the carrier for any damage occasioned by the absence, insufficiency or irregularity of any such information or documents unless the damage is due to the fault of the carrier, its employees or agents.
The carrier is under no obligation to enquire into the correctness or sufficiency of such information or documents.
Damage to Cargo and Delay I
The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air.
However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damage to, the cargo resulted from one or more of the following:
- inherent defect, quality or vice of that cargo;
- defective packing of that cargo performed by a person other than the carrier or its employees or agents;
- an act of war or an armed conflict;
- an act of public authority carried out in connection with the entry, exit or transit of the cargo.
Damage to Cargo and Delay II
Carriage by air for the above provisions comprises the period during which the cargo is in the charge of the carrier. The period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport.
If, however, such carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air. If a carrier, without the consent of the consignor, substitutes carriage by another mode of transport for the whole or part of a carriage intended by the agreement between the parties to be carriage by air, such carriage by another mode of transport is deemed to be within the period of carriage by air.
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its employees and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.
Nothing in the Convention prejudices the question whether a person liable for damage in accordance with its provisions has a right of recourse against any other person.
If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage.
When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger.
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.
The standalone regulation, EU 2004 Regulation provides for fixed liability for delay, cancellation and the denied boarding claims, provides a more efficient remedy and supervenes the above provisions.
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
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)