Table of Contents
2 The Evolution of the Regime of Liability
3 Major Legal Instruments of Private International Air Law
3.1 The Warsaw System
3.1.1 Warsaw Convention
3.1.2 The Hague Protocol
3.1.3 TheGuadalajara Convention
3.1.4 The Montreal Interim Agreement
3.1.5 GuatemalaCity Protocol
3.1.6 TheFour Montreal Protocols
3.2 The Montreal Convention
4 Achievements and Deficiencies of M99
4.1 Applicability and Documentation
4.2 Carriage of Cargo
4.5 5th Jurisdiction
6.1 List of Abbreviations
The invention of aircraft is a magnificent piece of technology, which is a result of a long process of human effort. With the use aircraft for military purposes during World War I it was shown that aviation had great potential even in time of peace. The essential role of aviation industry in everyone's life does not need any further explanation. Today's generations and those of the future have a quite natural interest in its development and safety. While flying offers various opportunities to mankind, at the same time, it is still a risky activity and accidents can be absolutely devastating. Even if aviation stands for one of the safest modes of transport, incidents will occur and people and airfreight will get damaged. The mentioned facts and the growing number and use of aircraft called for some kind of international regulation of aviation since from the very beginning (McNair 1964, p. 9).
In general aviation is a global business, which creates a need for international common rules. Over the years there have been quite many attempts to hold an international convention on the area. It was from upmost importance to create an adequate and uniform compensation system for the passengers and cargo but at the same to protect the infant aviation industry (Paulsson 2009, p. 6).
When it comes to the laws ruling the global world of aviation, we subdivide in two different categories. International air law, as any other law, is differentiated in public law and in private law. Public international law governs the relationship between individuals and the states and is dealing with rights and obligations of nations in the field of civil aviation. On the other hand private international law regulates the relationship between individuals. It governs legal issues for private entities within international air transport, regulating the relationship between air carriers, private individuals, and cargo shippers (Bartsch 2012, p. 14 f; Alpa/Andenas 2010, p. 8).
In most cases airline's liability for a passenger's injury or even death is determined by state law. But imagine if the passenger's trip includes a stop in a foreign country. Then the airline's liability is controlled entirely by international treaties (Danko 2009, p. 1).
The subject of this paper is the regime of passenger liability in private international air law.
This regime of liability is based on two global legal systems, represented by the ageing Warsaw System created from 1929 and the new Montreal Convention of 1999. The historical development and explanation of both systems, including their amendments and supplementary instruments, acts as basis for this project paper.
In a second step I am going to deduce the necessities for the creation of the Montreal Convention. Then I will go into detail of its achievements and deficiencies concerning passenger liability in private international air law.
Finally the paper is closing with a short summery of the development of the general and in particular the legal liability issues of both main Conventions.
2 The Evolution of the Regime of Liability
Legal rules of carrier liability in international air transport can be traced back to the 1910's. After World War I the first scheduled air service between London and Paris took place in 1919. With this, the need for uniform legal instruments to shield air carriers from potentially devastating aviation disaster awards was considered greater than ever. Even before the War a plethora of organizations called up Paris Conference of 1910. Due to political disagreements no tangible results were achieved in this year and the participants failed to adopt any Convention (Batra 2003, p. 4). But it can be seen as the fist political effort to compose principles of international aviation law. Even more it ultimately led to the Paris Convention which was held up in October 1919. This time, one of the big goals was to formulate a uniform air law governing international commercial aviation (Dempsey/Milde 2005, p. 11 f.). The Paris Convention had to make a choice between the philosophy of free airspace, analogous to the idea of freedom of the high seas in maritime law, or the principle of the underlying states sovereignty of the above airspace (Diederiks-Verschoor 2001, p. 2). As a result the complete and exclusive sovereignty of the airspace for any state was granted, due to strong national interest resulting out of World War I. Additionally regulations of aerial navigation were made and finally it was ratified by 32 nations (McNair 1964, p. 5).
As we can see, the prescribed regulatory efforts initially focused on public international air law. Based on the general concept of the Paris Convention and the rapidly increasing number scheduled passenger transports in the 1920's, further developments within international private air law were made. However, we should bear in mind that regulations concerning the liability of the air carriers are regulated by private international air law.
The Paris Convention of 1919 was followed by the foundation of the International Air Traffic Association, the precursor of the present IATA, the same year. The new organization focused attention of the prevailing uncertainty in terms and conditions of air law and attempted to develop a common code of the conditions of the carriage to be adopted by its members (Batra 2003, p. 5). But upon realizing that, the issue of air carrier's liability for worldwide passenger and cargo carriage could only be solved by international agreement among all the nations involved, the French government acted as a key driver in the following process. Under their leadership the First International Conference of Air Law took place on October 27, 1925 in Paris. The Conference created the Comité International Technique d'Experts Juridiques Aeriens (CITEJA). The CITEJA was confronted with the question whether a uniform private international air law should be established, and if so, to indentify its components and conceive future Conventions concerning the subject which then might be considered by interested governments. The group of experts created a draft convention which should act as important proposal concerning the documents and liability of carriers relating to international carriage by air. The decision making process of the CITEJA extended over several sessions and years and finally resulted in a recommendation to the French government to convene the Second (diplomatic) International Conference of Private Air Law (Dempsey/Milde 2005, p. 12 f.). The final agreements of this second conference will go down in history as the
3 Major Legal Instruments of Private International Air Law
3.1 The Warsaw System
The Warsaw System itself is based on a whole set of rules and regulations which are all arising from the Warsaw Convention of the year 1929. This convention was the first milestone of private international air law and has been amended numerous times by additional protocols, conventions and private initiatives. The entire web of conventions and regulations is known as the Warsaw System which will be chronologically explained in detail in the following.
3.1.1 Warsaw Convention
As described in the previous chapter, the early days of young international air transport have been scarred by inconsistent and unequal rules of law governing the carriage of passengers or cargo. The rights of passengers and cargo owners and the liability of the air carriers fully depended upon the general law as applicable to the carrier, which had for sure developed to meet the interest of the carriers. Different legal systems approached conditions of international air transportation with respect to the documents used for it and the liability of the air carrier in different ways. At that time substantial differences amongst the world's aviation states regarding the rules that governed air transportation creating uncertainties for both passengers and carriers. In simple terms, no common rules existed and the relevant national laws differed just as the rules of conflict of laws and there were difficult jurisdictional and choice of law problems (Shawcross/Beaumont 1977, p. 328).
The Warsaw Convention arose out of the desire and the need to remove the worldwide legal uncertainty and confusion in that area by providing a uniform system of law. The main task at that time was to find a reasonable way combining the interests of the carriers and the interests of its customers by means of a global accepted legal regime. By the creation of a unified system of rules of private law, affecting the rights of individuals against the carriers, it was possible to avoid major conflicts of law and conflicts ofjurisdiction (Kreindler2002, p. 10).
At CITEJA's behest 44 Nations were invited to the conference in Warsaw but only 33 nations were represented in Poland from October the 4th to 12th in 1929 to consider the proposal of CITEJA elaborated in advance. The United States sent only an observer. Finally the diplomatic conference approved ‘The Convention for the Unification of Certain Rules Relating to International Carriage by Air', commonly known as Warsaw Convention (Giemulla/Schmid 1994, p. 3).
With respect to the documents of carriage the Warsaw Convention unified the law in the following fields:
- Format, content and legal significance of documents of carriage,
- suchas passenger tickets,
- baggage checks,
- indication of the places of departure and destination,
- placeand date ofissue,
- nameand address of the carrier,
- agreed stopping places,
- a notice that Warsaw Convention applies.
(Warsaw Convention 1929, Art. 3-16); (Diederiks-Verschoor2001, p. 107)
In its third Chapter starting with Article 17 the Warsaw Convention regulates the carrier's liability towards passengers and cargo owners on an international flight. It states that the carrier is liable for damage sustained in the event of death or wounding of a passenger or any other bodily injury. The carrier is also liable for destruction or loss of/or damage to any registered luggage or goods and damage to passengers, luggage or goods occasioned by any delay (Warsaw Convention 1929, Art. 17-19). The legal basis of the liability of the carrier is fault-based with a reversed burden of proof. The fault-based liability is built on negligence, normally with the burden of proof on the claimant. As the Warsaw Convention uses reversed burden of proof instead, the fault will be assumed when damage is proved. In simple words the burden of proof which was shifted to the carrier from now on. That means evidentiary burden rests with the defendant (the carrier) (Diederiks-Verschoor 2001, p. 117). The reason of this reversal of the burden of proof was, that it would be almost impossible for a claimant to secure evidence of the carrier's fault in case of for example a plane crash.
From now on the customer was better protected by mainly by one central point: The reverse burden of proof. The legal importance of this reversal cannot be overestimated. This was a great achievement. The negotiators of the Warsaw Convention have left the traditional way. In normal life it would be impossible to proof that it was the fault of an airline. From that on the customer had an opportunity with some prospects of success to bring his claims forward.
Nonetheless, the carrier had still the opportunity to escape liability if he was able to prove, that he and his employees have taken all necessary measures to prevent the damage. Or even if the airline could proof that it was the 'Act of God' it was free of liability as well (Shawcross/Beaumont 2004, p. 105). All this achievements effected cargo and luggage in similar way. Except of regulations concerning hand-luggage because passenger, for sure, have to take for hand-luggage on their own.
One of several other achievements of the Warsaw Convention was choice of the where plaintiff was able to submit his claims. The Warsaw Convention limited the potentially high number of jurisdictions to four forums. From now he had four options of jurisdictions in the contracting States, based either on
- the carriersdomicile,
- itsprinciple place of business,
- its place of business through which the contract was made or
- the place of destination of the flight in question.
(Warsaw Convention 1929, Art. 28); (Diederiks-Verschoor2001, p. 148)
cond main purpose. On one hand to protect the infant aviation industry from devastating claims resulting from potential accidents and on the other hand to provide a more favorable environment for the industry to grow. Because the entire aviation industry was still in its infancy and was a financially weak growing business. Carriage by air was still unusual and both governments and private bodies who operated the airlines were in great need of economic protection (Milde 1996, p. 37).
For this purpose the Warsaw convention limited the liability of the airlines by a cap to the amounts the plaintiff could claim as compensation. This fixed monetary limitation on the imposed liability was determined to 125.000 Poincaré gold francs (approximately 8.300 US Dollars (USD) at that time) for injuries and 250 Poincaré gold francs (approximately 17 USD) per kilogram for checked baggage and goods. Additionally the convention included a very wisely clause that carriers were not allowed to contract a reduction or even an elimination of this distinct liability or its sum (Dempsey/Milde 2005, p. 15). This was an important restriction of the regime of so called 'contractual freedom' in fields of private law to prevent the carriers of the temptation to reject all kinds of responsibility.
Unfortunately the basic Warsaw Convention did not contain any kind of a provision that these limitations in the liability could be adapted to new circumstances. This would be fact for example if the status ofthe industry or the value of money changes. Sadly there was no kind of automatism that these limitations could be adapted in the future. Because in regard to the potential development ofthe aviation industry the liability limitations were ridiculously low. This circumstance can be seen as central deficit of the Warsaw Convention (Dempsey/Milde 2005, p. 16).
Warsaw Convention also defined situations of unlimited air carrier liability. That would be the case if can be proved that the damage is caused by 'willful misconduct' of the air carrier. Even if the carrier failed to deliver the required contract of transportation or it was delivered in a faulty way. The reason for breaking the limit was a simple one. If the passenger had not been properly informed of the limitation rules, therefore he was not able to insure himself to protect him against possible losses. Here we find here a legal link ofthe documentation requirements and the carriers' liability (Diederiks-Verschoor2001, p. 125).
Overall the objective of the Warsaw Convention was the unification of various rules relating to international carriage by air. It has achieved clarity and uniformity in the definition of international carriage, in fields of documentation, and in the regime of air carriers' liability that directly affect humans and corporate persons rather than nations. Warsaw Convention can truly be seen as a landmark in the development of private international air law (Batra 2003, p. 12; Dempsey/Milde 2005, p. 13). Until today the unified rules enable passengers, in knowledge of the fact that carriers' liabilities were the same all over the world, to protect themselves against losses by signing private insurance agreements.
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- Aviation Air Law Aviation Law SDR Special Drawing Rights Warsaw Convention Montreal Convention Air Transport M99 Liabilty Law Warsaw System Hague Protocol 5th Juristiction Carriage of Cargo