CARRIAGE BY AIR
The air law relating to the carriage of goods has reached a considerable measure of international uniformity. The legislation applicable to such carriage consists of the Carriage by Air Acts 1932, 1961 and 1962.
For the common carrier, the common law was able to provide the answers to these questions but, as methods of transportation became more sophisticated, and as contracts of carriage became more involved, governments found it necessary to regulate the activities of the parties involved in such contracts and legislative control was introduced. Further, as carriage on an international scale has become more and more important, with the consequent problems of conflict of laws when a dispute arises between contracting parties of different nationalities, governments have found it necessary to co-operate in producing internationally accepted conventions to regulate international carriage.
When examining the liability of the carrier of goods by air, the following points must also be remembered:
► The regulations and conventions tend to evolve from a consideration of the liability to passengers; note, ‘cargo’ is the word used in the Warsaw and other conventions as a category distinct from passengers and baggage.
► Flights can be either entirely within the UK (domestic flights) or involving other countries (international flights) and no UK government will wish to subjugate its legislative function on purely internal matters to the will of the international community; hence, there will be separate requirements for domestic and for international flights.
However important international conventions may be, they do not have the force of law in this country until incorporated into English law by an Act of Parliament.
The international community recognised the need for co-ordination in legislation relating to aviation as early as 1916, when the American republics (meeting in Chile) recommended the adoption of common legislative arrangements, but the intervention of the First World War and its problems meant that nothing was done until 1919. In that year, the Paris Convention was signed and, although not directly relevant to the liability of carriers of air cargo, it was an important step in producing a climate of international agreement needed for the development of air law.
The first convention dealing with the liability of the carrier was the Warsaw Convention of 1929. Great Britain was a signatory to the Convention and incorporated it into English law by the Carriage by Air Act 1932. Although this Act was repealed by the Carriage by Air Act 1961, the provisions of the original Warsaw convention remained as part of the English law through the Carriage by Air Acts (Application of Provisions) Order 1967. The Convention applies only between those States, which have ratified it (known in the Convention as [High Contracting Parties]). Although the US ratified the Warsaw Convention in 1929, it became increasingly dissatisfied with what it regarded as inadequate levels of compensation laid down in the Convention. This has led to further agreements and conventions being negotiated (will be considered later). However, the original, or ‘Unamended Warsaw Convention is still operative, it is still the basis on which the liability of carriers rests, and it must therefore be given careful consideration.
Therefore, it would appear that there are three possible legal regimes, in so far as carriage by air is concerned:
► Carriage governed by the original Warsaw Convention.
► Carriage governed by the amended Warsaw Convention.
► Non-Convention carriage.
APPLICATION OF THE LEGAL REGIMES
Original Warsaw Convention
When, according to the contract between the parties, the places of departure and destination are located:
► either in the territories of two State parties to the original Convention; or
► in the territory of a single such State with an agreed stopping place anywhere outside that State.
Provision is also made for situations where the carriage involves several successive carriers. If the parties have intended it to be considered as a single operation, it will form one undivided carriage, even if it consists of a series of contracts.
The document of carriage is called the air consignment note (ACN). This is not a document of title, but it is prima facie evidence of the conclusion of the contract, receipt of the goods, the conditions of carriage, the weight, dimensions, packing and number of goods. It comes in three original parts:
► one is for the carrier (signed by the consignor);
► the second is for the consignee (signed by the consignor and accompanies the goods);
► the third is signed by the carrier and handed to the consignor after the goods have been accepted for carriage.
In cases of damage, complaints must be made in writing to the carrier immediately after receipt of the goods or not later than seven days after receipt. In cases of delay, the complaint must be put in writing within 14 days from the date on which the goods were delivered.
Amended Warsaw Convention
When, according to the agreement between the parties, the places of departure and destination are located:
► either in the territories of two States both of which are parties to the amended Convention; or
► in the territory of a Single State, party to the amended Convention with an agreed stopping places anywhere outside that State.
Complications can arise in instances where the place of departure is in the region of a State party to the original Convention whilst the location of destination is in the territory of a State which is not only a party to the original Convention but has also become a party to the amended Convention (for example, the LJK). In such cases, the only obligations, which bind both of the States concerned, are those contained in the original Convention?
The document of carriage is called an air waybill (AWB). Most of the provisions pertinent for the air consignment note, mentioned above, apply also to the air waybill. Upon discovery of damage to the goods, complaint must be made in writing to the carrier immediately after delivery or not later than 14 days after delivery. In the case of delay, the complaint must be put in writing within 21 days.
Non-Convention rules
When the carriage of cargo is governed neither by the original nor by the amended Convention, and there is no agreed stopping place in another State then, whatever the location of departure, no part of the carriage would, as a matter of law, be regulated by either of the two Conventions, and in an action before the English courts the carriage would be governed by the non-Convention rules.
A comparative table of Conventions and Acts is given as appendix 2 at the end of this chapter.
WARSAW CONVENTION 1929
The full title of this convention is ‘A Convention for the Unification of certain Rules relating to International Carriage by Air’. When it was incorporated into English Law, only the English text was used (unlike certain other Conventions where the French Text is also given). A copy of the Convention is given as appendix 3 at the end of this chapter. The Convention consists of a series of articles; the main ones relating to the liability of the carriers of goods by air are now considered:
CHAPTER I
This defines the scope of the Convention.
Article 1. As mentioned earlier, this Article provides for the scope of application of the Convention.
Article 2. The main purpose of this Article is to exempt carriage performed under the terms of any international postal Convention and, at the same time, it ensures that the Convention applies to carriage performed by the State or legally constituted public bodies.
CHAPTER II
This deals with the documentation required.
Article 3. This Article deals solely with the carriage of passengers and is not of itself relevant to this study. It is interesting, however, in that it indicates the need to meet certain documentary requirements in order to obtain the benefit of the provisions of the Convention which exclude or limit liability, and this concept applies also to the Articles dealing with luggage or cargo.
Article 4. This Article deals with the documentation required in connection with the luggage of passengers being carried in the aircraft, Luggage can be considered as accompanied goods, and thus it forms a part of this study.
The carrier is required to prepare, in duplicate, a luggage ticket. One copy is for the carrier himself and the other is for the passenger. The luggage ticket must contain certain stated particulars as under:
► The place and date of issue;
► The place of departure and destination;
► The name and address of the carrier(s);
► The number of the passenger ticket;
► a statement that delivery of the luggage will be made to the bearer of the luggage ticket;
► the number and weight of the packages;
► the amount of value (note also Article 22(2));
► a statement that the carriage is subject to the rules of liability established by the Convention (the ‘Warsaw’ statement).
Failure by the carrier to comply with these requirements does not affect the validity of the contract of carriage but it does mean that the carrier shall not be able to exclude or limit his liability within the scope of the relevant provisions of the Convention. He would then be liable under common law.
Articles 5-16. These Articles deal with the requirements in connection with the issue of an ACN and concern themselves with the carriage of cargo.
Article 11 states that the air consignment note is prima facie evidence of the conclusion of the contract, of the receipt of the goods and of the conditions of carriage. To that extent it resembles the bill of lading used in marine carriage contracts, but there are some significant differences and students may find it interesting and instructive to compare the two documents (for example, it is not a document of title as is the bill of lading). The carrier has the right (by virtue of Article 5) to require the consignor to make out an ACN (a separate one for each package if so demanded – Article 7). The ACN must be in three original parts and it is handed over with the goods:
► Part 1 is marked ‘for the carrier’ and is signed by the consignor.
► Part 2 is ‘for the consignee’, is signed by the consignor and accompanies the goods.
► Part 3 is signed by the carrier and handed to the consignor after the goods have been accepted for carriage.
It is important to note that the responsibility for the preparation of this document rests with the consignor and where the carrier, at the request of the consignor, makes out the ACN he does so on behalf of the consignor (unless evidence to the contrary can be adduced): Article 6.
Article 8 states that the ACN must contain certain particulars (a to q), set out below.
Article 9 states that, in order that the carrier may take advantage of the provisions of the Convention which exclude or limit his liability, the ACN must contain particulars a to i inclusive plus q, of Article 8:
► place and date of execution of the ACN (a);
► places of departure and destination (b);
► agreed stopping places, which the carrier may alter in case of necessity (c);
► name and address of consignor (d);
► name and address of first carrier (e);
► name and address of the consignee, if the case so requires (f);
► nature of the goods (g);
► number of packages, method of packing and the particular marks or numbers on them (h);
► either the weight, quantity, volume or dimensions of the goods. Note, the Court of Appeal has decided to follow the original French text and the American translation in holding that only one of these particulars need be given: Corocraft Ltd v. Pan American World Airways Inc. (1969) (i);
► the apparent condition of the goods and of the packing (i);
► details of the freight (date and place of payment, and the person who is to pay it) if agreed upon (k);
► for goods sent ‘payment on delivery’, the price of the goods and, where applicable, the amount of expenses incurred (1);
► the amount of value declared in accordance with Article 22(9-) (this deals with extension of the statutory limit) (m);
► the number of parts of the ACN (n);
► the documents handed to the carrier to accompany the ACN (o);
► the time fixed for completion of the carriage and a brief note of the route to be followed (if these matters have been agreed upon) (p);
► the’Warsaw’statement (q).
In order that statements relating to quantity, volume or condition may be evidence against the carrier, they must be expressly stated on the ACN either as having been checked in the presence of the consignor or as relating to apparent condition only: Article II (2). The responsibility of the consignor for the correctness of the particulars inserted into the ACN and his liability for all damages suffered by the carrier or any other person by reason of any errors is set out in Article IO.
Article 12 gives the consignor the right to withdraw the goods at the aerodrome of departure or landing; or to stop the transit during the course of the journey; or to substitute a different consignee. It must be remembered that this right must not be exercised in such a way as to prejudice the carrier or other consignors, and the consignor must repay any expenses incurred by the exercise of this right. The Article makes provision for situations where the carrier cannot carry out such orders on the part of the consignor by requiring the carrier to inform the consignor forthwith. Provision is also made for situations where the carrier, carrying out the orders of the consignor, disposes of the goods without requiring the consignor to produce his copy of the ACN. In such case, the carrier will be liable for any damage suffered by any person lawfully in possession of that part of the ACN (subject to a right to recover from the carrier). (You may find it profitable to compare these provisions with the right of Stoppage in Transit given to unpaid sellers under the Sale of Goods Act 1979.)
Article 13 deals with the transfer of the goods to the consignee on arrival at the place of destination. Subject to the rights given to the consignor to stop the transit (Article 12), the carrier must notify the consignee as soon as the goods arrive and must hand over to the consignee the ACN and the goods (subject to the payment of charges due and to compliance with the conditions of carriage set out in the ACN).
The rights given to the consignor and the consignee by Articles 12 and 13 may be enforced by either of them in his own name (Article 14), and Articles 12, 13 and 14 do not affect the relations of the consignor or consignee with each other (or the mutual relations of third parties whose rights are derived from either the consignor or the consignee). It should be noted that the rights and duties mentioned in
Articles 12, 13 and 14 cannot be altered except by express provision in the ACN.
Article 16 deals with the provision of the information needed to meet the formalities of customs or other official bodies. The responsibility of providing this information is laid on the consignor and he is liable to the carrier for any damage due to absence, insufficiency or irregularity of this information (unless, of course, the damage is due to the fault of the carrier or his agents). It should be noted that the carrier may rely on the details given to him by the consignor – he is not required to enquire into the correctness or sufficiency of such information or documents.
CHAPTER III
This deals with the liability of the carrier towards both passengers and goods. The following notes relate to goods only and thus those sections that refer only to passengers have been omitted.
Article 18. This states that the carrier is liable for damage sustained in the event of destruction or loss of, or of damage to, any registered luggage or any goods, if the occurrence which caused the damage so sustained took place during the carriage by air. It then goes on to define the scope of the expression, carriage by air’ and extends it to the period while the items are in the charge of the carrier. It also makes it clear that, although normally carriage by other means, such as land, sea or river, is not included, nevertheless where this is part of the performance of the contract for carriage by air (for the purpose of loading, delivery or transhipment), such alliterative carriage shall be deemed to be included within the scope of the Convention.
Article 19. This Article extends the liability of the carrier to damage caused by delay.
Articles 20, 21 and 29. These Articles provide the carrier with defences to actions for damages based on Article 18:
► The carrier is relieved of liability if he (and his servants or agents) have done everything possible to avoid the damage. It is worth noting that the original English translation referred only to, agents’ but this was extended by s.29 of the Air Navigation Act 1936 to include ‘servants’, thus giving a better translation of the French text which uses the word ”preposes” in this context. It should also be remembered that, in accordance with English law, the standard of behaviour required of the carrier is that of ‘reasonableness’, as was decided by Greer L.J. in Grein v. Imperial Airways Ltd (I 93 7).
► Damage caused by negligent pilotage or negligence in the handling of the aircraft or in navigation (provided that in all other respects the carrier and his agents have done everything possible to avoid damage) will not fall on the carrier’s shoulders. However, Sclimitthoff states in his book The Law and Practice of International Trade (7th edition, page 387) that this defence is never used because it is not available in the case of injury or death of passengers, and to raise this defence for cargo might give rise to unlimited liability for passengers if it amounted to wilful misconduct within the meaning of Article 25.
► The carrier may also avoid liability on the grounds that the damage was due to the negligence of the injured person. Provision is made for the court to deal with this defence in accordance with its own law and thus, in the English courts, this would come under the defence of contributory negligence.
► Any right of action for damages against the carrier is extinguished if an action is not brought within two years of the cessation of the carriage (i.e. the date of arrival at the destination, or the date on which the aircraft should have arrived, or the date on which the carriage stopped). Although the Article provides that the law of the court seized of the case shall determine the method of calculating the period of limitation, it is submitted that the two-year period overrides the normal period of limitation under the limitation legislation currently in force in the UK.
Where a carrier is liable under Article 18 or 19, he may then seek some protection under Article 22, which lays down limits of liability. The limit for registered luggage and goods is expressed as 250 francs per kilogram; for accompanied luggage, the limit is 5,000 francs per passenger. The limit may be increased by agreement (and subject to an additional charge) but may not be diminished by any contract term. The unit of currency is given as the Poincare franc (also known as the ‘gold franc’), a ‘diplomatic’ unit of currency, not an actual coin in commercial use. ‘For domestic carriages’ the limit of liability for goods (cargo and registered baggage) is expressed in SDRS.
Article 25. This states that the carrier shall not be able to rely on any of the above mentioned exclusions or limitations of liability if the damage is caused by his or his agents’ or servants’ wilful misconduct. This is a most important Article and the following points should be carefully noted:
► There must be an element of causation present. Conduct, even if blameworthy, will have no effect if it did not cause the damage under consideration. For example, in Goepp v. American Airlines Inc. It was held that the carrier has alleged failure to comply with certain regulations was irrelevant, as there was nothing to suggest that it was the cause of the accident.
► The meaning of ‘wilful misconduct’. This translation from the French word ‘dol’ has been described as ‘the most unhappy phrase of the entire convention’. In the English courts, the English text will prevail. It is worth considering the points made in the judgement in the case of Horabin v. BOAC (1952) where a pilot failed to land when given permission to do so, changed course without full communication with traffic control and eventually tried to return from France to England when low on fuel. The judge made the following observations:
Wilful misconduct is misconduct to which the will is a party, and it is wholly different in kind from mere negligence. The will must be a party to the misconduct and not merely a party to the conduct of which the complaint is made … To be guilty of wilful misconduct the person concerned must appreciate that he is acting wrongfully … or acts or omits to act with reckless indifference as to what the result may be.
He then gave the illustration of a motorist approaching a traffic light at red: if he merely fails to observe it and drives across “he junction, this is negligence; but if he sees the light and deliberately decides to ignore it, then there is a case of wilful misconduct.
► American cases appear to have raised the question of whether the test is subjective or objective: it appears to be subjective, requiring an awareness of wrongdoing. The flying of an aircraft necessarily involves an element of risk, and sometimes difficult choices have to be made between alternative risks. A wrong choice, honestly and reasonably made, between alternative risks would not amount to wilful misconduct. Nor will an act done in the belief that it would avoid harm, or a greater harm. Where there are a series of acts, the jury must draw their inference from the numerous departures from the required standard of care.
► A useful checklist to determine the existence of wilful misconduct was given in the American case of Coultas v. KLM & Sabena (1961).
There must be:
– intent to do the act;
– an awareness of the consequences of the act;
– a deliberate or reckless determination to do the act regardless of the consequences.
► Some doubt has been expressed as to the effect of wilful misconduct on the provisions of the Convention but it is submitted that the following Articles are affected:
– Article 20: carrier enabled to escape liability if he can show he (and his servants’ etc.) have taken all necessary measures;
– Article 21: contributory negligence of plaintiff;
– Article 22: maximum sums payable in damages;
– Article 26(4): time limits for complaints re baggage and cargo. The following Articles are not affected:
– Article 18(3): rebuttal by carrier of presumption that damage took place during carriage by air;
– Article 28: governing the proper forum for disputes.
The short judgement of Phillips J. given in December 1992 in Antwerp United Diamond v. Air Europe was reported in All England Law Reports 5 November 1993. He decided that a special declaration of the value of cargo under Article 22 of the Warsaw Hague Convention was a limitation of liability for the purposes of Article 25, with the result that the carrier’s liability is not restricted to the amount of the special declaration where the carrier has been deprived of the ability to limit pursuant to Article 25 because the carrier or its servants acted intentionally or recklessly.
In the Court of Appeal, when dismissing the appeal of Air Europe, Lord Justice Hirst said it was important to stress that in all run-of-the-mill cases the declared limit would apply. It was only where the consignor was able to prove the very strict criteria laid down in Article 25 that the limit would be lifted. In such cases of extreme misconduct, either on the part of the carrier or of those servants and agents for whom he was legally responsible, it did not seem to be unjust that the limit should be lifted.
It is to be noted that this problem does not arise in the context of either the Hague or the Hague/Visby Rules because both variants provide that a declaration of value is only prima facie evidence of the value of the goods and, moreover, the Hague Rules do not contain any provisions depriving the carrier of the right to limit (although, under English Law, deviation will have this effect): (1993) 4 AER 469; (1993) 2 Lloyd’s Rep.413. Times Law Report April 22 1995.
There is some doubt about Article 29 (Time Limits) but the leading commentators on air law (Shawcross and Beaumont) submit that this Article operates to extinguish any cause of action arising under the Convention whether based on negligence or on wilful misconduct.
Article 26. This Article lays down the procedure to be adopted by any person wishing to claim damages from the carrier and is concerned mainly with time limits within which the claim must be submitted.
Article 30. Where a number of carriers are involved in the one transit the matter falls within the scope of Article 30. This provides that each carrier is subject to the rules set out in the Convention and is deemed to be one of the contracting parties for that part of the carriage, which is performed under his control. Claims in connection with luggage or goods will be brought either by the consignor or the consignee and the Article provides that the consignor will have a right of action against the first carrier, and the consignee entitled to delivery will have a right of action against the last carrier, whilst each may take action against the actual carrier who performed that part of the carriage during which the destruction, loss, damage or delay took place. However, you should know that, by the judgement of Gatehouse J. in Gatewhite Ltd and Cultiros de Primor (SA) v. Iberia Lineas Aereas de Espana Sociedad (1988), it was decided that the owner of goods damaged or lost by the carrier is entitled to sue in his own name and there is nothing in the Warsaw Convention which deprives him of that right.
CHAPTER IV
This consists of one Article, Article 31, which provides that where the carriage by air is combined with any other mode of carriage, the provisions of the Convention shall apply only to the carriage by air.
The remaining Articles, although of general interest, do not relate especially to the liability of the carrier of cargo by air.
HAGUE PROTOCOL 1955
After the end of Second World War, it was recognised that the financial limits set by the Warsaw Convention were out-of-date and needed revision. Accordingly, in 1955, 45 states met at the Hague and agreed a protocol, the Hague Protocol, to revise and up-date the original agreement, thereby producing the ‘Amended Warsaw Convention’. It must be remembered that the Protocol is an addition to the Warsaw Convention and can thus be ratified only by those countries, which ratified the original Convention. Not every state so entitled wished to ratify the new protocol (the major dissentient being the US). This has led to the situation where three passengers sitting next to each other on an aeroplane could be travelling under contracts governed by three different regimes of carriage, dependent on where they boarded the flight and where their intended destination was. It could be that one is governed by the original Warsaw Convention, another by the amended Warsaw Convention, and a third, not being governed by any convention, is dependent on suing in the ordinary civil law of tort.
The easiest way to appreciate the content of the Hague Protocol is to study the amended Warsaw Convention to find the changes that it made to the original one. To some extent, the Protocol has made the study and application of the Convention a lot easier for us because the Protocol was drawn up in English as well as in French (and also in Spanish), although where there is a conflict between the texts the French one %%ill prevail. (As before, only those parts dealing with the liability of the carrier of goods will be considered.)
A copy of the Hague Protocol is provided as appendix 4 at the end of this chapter.
AMENDED WARSAW CONVENTION
Articles 1 and 2 amend the definition of flights to which the Convention shall apply, the main change being to exclude the carriage of mail and postal packages.
Articles 4 and 5 replace the ‘luggage ticket’ and the (air consignment note’ with a ‘baggage check’ and an ‘air waybill’, and the information required to be shown on these documents is considerably simplified.
Article 16 states that the Articles relating to documentation shall not apply in cases of emergency.
The defence of ‘negligent pilotage’ given by Article 20, paragraph (2), of the original Convention is deleted.
The revised limit of liability applies only to damages in respect of passenger injury. Thus, the limit for goods remains the same as in the original Warsaw Convention. Provision is made, however, for the calculation of liability to be based on the weight of the package or packages concerned and not necessarily on the weight of all the packages recorded on the same air waybill (unless the loss, damage or delay of one package affects the value of others on the same air waybill). The carrier is given an additional defence in that he may restrict or exclude his liability where the damage arises out of the inherent defect, quality or vice of the cargo carried.
Article 13 of the Hague Protocol makes a very important change to Article 25 of the Convention by altering the nature of the misconduct which will disentitle the carrier from ‘wilful misconduct’ to ‘an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result’. It is also provided that where such act or omission is due to a servant or agent it must be proved that he was acting within the scope of his employment. It should further be noted that the disentitlement relates only to the limit of liability, thus the carrier can still rely on any other defence that available under the Convention.
The time limits for notifying claims have been amended so that for damage to baggage the maximum period allowed is seven days from the date of receipt, and for cargo, it is 14 days.
Where the complaint is in respect of delay the time limit is fixed at 21 days from the date on which the baggage or cargo have been placed at the claimants’ disposal.
The remaining Articles of the Protocol do not affect the liability of the carrier of cargo by air.
GUADALAJARA CONVENTION 1961
Whilst the Warsaw Convention and the Hague Protocol were primarily concerned with the liability of the carrier, they did not attempt to deal with the situation where bringing an action, or recovering damages from the actual carrier, might be difficult (for example, he might not have a place of business or any assets in the country where he is being sued). In fact, neither document attempted to define what is meant by the term ‘the carrier’. The Guadalajara Convention sought to rectify this and the signatories thereto agreed to recognise two categories of carrier:
► the actual carrier: he performs the contract of carriage;
► the contracting carrier: he enters into the contract on behalf of the actual carrier (for example, ticket agent).
The provisions of the Warsaw Convention and the Hague Protocol apply to both categories, but they cannot each be sued for the maximum damages obtainable: the plaintiff may not recover in total more than he could have recovered from either of them. The Guadalajara Convention was incorporated into English law by the Carriage by Air (Supplementary Provisions) Act 1962, the limits being those of the original Warsaw Convention. The Carriage governs non-international flights by Air Act (Application of Provisions) Order 1967. This order introduced a modified version of the amended Warsaw Convention to non-international flights. Thus, it incorporated the terms of the Hague Protocol 1955 but increased the limits per passenger to 875,000 gold francs. The Warsaw Convention limits prevailed for cargo liability. Subsequently, for non-international flights, cargo limits are expressed in SDRS.
PROPOSED CHANGES
Guatemala Protocol 1971
A continuing problem in the development of international air law, so far as the liability of carriers is concerned, has been the desire of the US to see the provision of very much higher levels of compensation. It was their dissatisfaction with the limits in the Hague Protocol that led them to refuse to ratify it, and the Montreal Agreement in 1966 was produced to stop the US from denouncing the Warsaw Convention (which they had threatened to do with effect from 15 May 1966). The Montreal Agreement, however, was not intended to be more than a stop-gap measure and a further conference was held in Guatemala which resulted in the Guatemala Protocol 1971.
The effect of this Protocol, so far as the carrier of cargo is concerned, is to provide for absolute liability on the part of the carrier, subject only to the defence of contributory negligence, and to set the limit of liability for registered baggage or cargo at 250 gold francs per kilo, and for unregistered baggage at 15,000 gold francs per passenger (these limits to be absolutely unbreakable, except where the act giving rise to the loss or damage is done by the carrier (or by his servants or agents acting within the scope of their employment) with the knowledge and intent that damage would probably result, in which case the limitation of liability shall not apply).
So far, the adoption of this Protocol has not been possible because of the refusal of the US to agree to it. They still regard the proposed limits as being too low and there must therefore be doubts about whether the Protocol will ever come into force.
Montreal Additional Protocols 1975
Despite the shortcomings of the various measures so far considered there is now a reasonable degree of understanding internationally on the nature of the carrier’s liability and on the extent thereof. However, the use of the gold franc as the basis for quantifying the carrier’s liability has produced its own problem.
A fluctuation in exchange rates, particularly where there is severe disruption in the money markets, makes it difficult for airlines to predict the effect of claims on their revenues. Because of this problem, which was exacerbated in the early 1970s by the floating of sterling and the devaluation of the US dollar, the International Air Transport Association (IATA) recommended that the gold franc should be abandoned in favour of the SDRS.
A non-international conference on air law held at Montreal in 1975 recommended four additional protocols, three of which were intended to effect the change from the gold franc to SDRS. The fourth of the protocols related to liability concerning the carriage of postal items and the documentation used in the carriage of cargo.
To date these protocols have not come into force, although legislation exists in England in the form of the Carriage by Air and Road Act 1979 to give effect to them ‘on such day as Her Majesty may by Order in Council appoint’.
IATA Intercarrier Agreement (ICA) 1995
In October 1995, representative members of the International Air Transport Association (IATA) from each of the major geographical areas of the world (including Japanese airlines who had unilaterally, since November 1992, taken similar measures for their passengers) adopted an intercarrier agreement to waive no later than I November 1996 or upon receipt of requisite government approval, whichever is later, all treaty limitations on recoverable damages for passenger injury and death.
With the entry into force of the ICA 1995, early ratification of the 1975 Montreal Protocol to modernise the liability rules relating to the transportation of cargo should prove possible; the uniform
Limitation of liability for passenger injury and death being effectively excised from the Warsaw Convention whilst preserving the convention system.
Non-international flights
The international nature of air transport means that the chance of a conflict of laws must always be considered, and thus the use of internationally accepted conventions and protocols is essential. However, there is also much air traffic in this country of a purely internal, or domestic nature, and Parliament has had to introduce legislation to deal with this as well.
The Carriage governs non-international flights by Air Acts (Application of Provisions) Order 1967, which introduced a modified version of the amended Warsaw Convention for them. So far as cargo liability is concerned the Warsaw Convention limits apply but, since the introduction of the Carriage by Air Acts (Application of Provisions) (Third Amendment) Order 1981, the limits are expressed in SDRS.
CONCLUSION
The whole subject of the liability of carriers of goods by air may seem at first sight to be extremely complicated. The above notes have attempted to put the matter into a convenient order for study purposes. You may find it useful to refer back to the opening paragraph, which points out the four major areas that should be considered:
► For what is the carrier liable?
► In what circumstances is the carrier liable?
► What defences may the carrier raise when claims arise?
► What financial limits are placed on his liability?
Within these four major topics, it is useful to establish the following:
► The documentation required.
► Who is entitled to claim and against whom.
► Time limits for bringing claims.
► Defences.
► Limitation of liability: how much and when.
It is also important to see how the places of boarding and discharge (or, in some cases, the flight pattern) determine which regime of carriage shall apply.
Takis Kalogerakos
Marine Underwriter
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