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Liability Rules in the International Carriage of Passengers by Air and the Notice of Denunciation of the Warsaw Convention by the United States of America*

Published online by Cambridge University Press:  09 March 2016

Gerald F. FitzGerald
Gerald F. FitzGerald*
Affiliation:
International Civil Aviation Organization, Institute of Air and Space Law, McGill University
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Extract

The United States notice of denunciation of the Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air, opened for signature at Warsaw on October 12, 1929, even though now withdrawn, marks the end of an era in the development of private international air law. The notice of denunciation was communicated to the Polish government, depositary of the Convention, on November 15, 1965, because, according to the United States of America, the present limit of liability — which amounts approximately to $8,300 U.S. — applicable in the case of death of, or injury to, a passenger in international carriage was considered to be no longer adequate to protect United States citizens of practically all economic levels who in ever-increasing numbers are making use of international air transport. On May 13, 1966, just two days before the denunciation was to take effect, the United States dramatically withdrew its notice after a series of eleventh-hour discussions and consultations culminating in an agreement by thirty-four airlines to accept a limit of liability of $75,000 U.S. per passenger and, with the exception of three American airlines, to accept also the absolute liability of the air carrier. The notice of denunciation of what has often been described as one of the most widely accepted conventions of its kind sent a wave of uneasiness through the world of international civil aviation. As a result of that notice, the Warsaw system came under searching examination and, in view of the agreement mentioned above, will, no doubt, be substantially modified when, in due course, a diplomatic conference is convened to amend the Convention.

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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 4 , 1966 , pp. 194 - 215
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1966

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References

1 For the text of the Warsaw Convention, see Schedule One to The Carriage by Air Act, R.S.C. 1952, c. 45; 137 L.N.T.S. 11, No. 3145. Canada became a party to it with effect from September 8, 1947. The Convention originally entered into force on February 11, 1933.

2 See remarks of the United States representatives at: (1) ICAO Council-ICAO Doc. 8536–4(Closed) C/959–4(Closed) Council-56th Session, Min., 4th mtg., 61–63 (para. 5) and (2) Special ICAO Meeting (1966), Minutes, 2nd mtg., para. 4. Note: References to the minutes of the Special ICAO Meeting (1966) will hereinafter be identified by the symbol “Spec. Min.”

3 For a list of parties to the Warsaw Convention at the beginning of 1966, see ICAO LIM-7 Special ICAO Meeting, Some Solutions relating to the Problem of Limits of Liability with respect to a Passenger 11–16. For a fuller description of the Convention, see FitzGerald, Gerald F., “Liability Rules in the International Carriage of Passengers, Luggage or Goods by Aircraft — Warsaw Convention — The Carriage by Air Act, 1939,” (1948) 26 Can. Bar Rev. 861 Google Scholar and Paterson, Alastair, “An Outline of the Law on Carriage by Air,” (1954) 32 Can. Bar Rev. 982.Google Scholar For an extensive bibliography on the Warsaw Convention, The Hague Protocol, and the Guadalajara Convention, see Matte, Nicolas Mateesco, Traité de Droit Aérien-Aéronautique 993–97 (2e ed., Paris, 1964).Google Scholar

4 Art. 22(1). The sums used to state the limits of liability are expressed in terms of the Poincaré gold franc, which consists of 65½ milligrams of gold at the standard of fineness nine hundred thousandths. The sum of 125,000 francs converted into United States dollars amounts to $8,290.87; but, for convenience, the round figure of $8,300 is often used in discussing the passenger limit in the Warsaw Convention.

5 For the text of the Hague Protocol, see Schedule to An Act to Amend the Carriage by Air Act, 12 Eliz. a, c. 33(Can., 1963); 478 U.N.T.S. 371, No. 6943. The Act entered into force on July 17, 1964.

6 Art. XIII of the protocol-new art. 25 of the Convention.

7 One commentator has submitted that this formula “would make avoidance of the damages limit virtually impossible.” See Kreindler, Lee S., “The Denunciation of the Warsaw Convention,” (1965) 31 J. Air Law & Com. 291, 295.Google Scholar

8 For a list of the parties to the Protocol at the beginning of 1966, see ICAO LIM-7, at 11–16. Canada became a party with effect from July 18, 1964. For a fuller description of The Hague Protocol, see FitzGerald, Gerald F., “Aviation-Liability Rules in the International Carriage of Passengers, Baggage or Goods by Aircraft — The Hague Protocol of 1955 to Amend the Warsaw Convention of 1929,” (1956) 43 Can. Bar Rev. 326–34Google Scholar; Pourcelet, Michel, Transport Aérien International et Responsabilité (Montréal, 1964) Google Scholar; and Matte, supra note 3, at 443–55.

9 For the text of this convention, see ICAO Doc. 8181 Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier. Canada has not yet ratified this convention. Some thirteen countries have.

10 Art. XI of the protocol-new art. 22(4) of the Convention.

11 For a description of some of the earlier activity in regard to the proposed ratification of the Hague Protocol by the United States, see: (1) Sand, Peter H., “Air Carrier’s Limitation of Liability and Air Passengers’ Accident Compensation under the Warsaw Convention,” (1961–62) 28 J. Air Law & Com. 260–84Google Scholar — the footnotes in this article are very detailed and contain very useful references to the literature on the Hague Protocol, to the case law on the Warsaw Convention as well as to the literature on passengers' compensation schemes; (2) Pourcelet, Michel, “Vers une nouvelle limite de responsabilité dans le transport aérien international,” (1964) 2 The Canadian Yearbook of International Law (Annuaire Canadien de Droit International) 3–20.Google Scholar

12 Hearings on Hague Protocol to Warsaw Convention before the Committee on Foreign Relations United States Senate, 89th Congress, 1st Session, May 26–37, 1965.

13 Senate, Executive Report No. 3, 89th Congress, 1st Session, at 6.

14 Ibid., 6–7.

15 Ibid., 7.

16 For a summary of the events leading up to the rejection of the proposed insurance legislation, see Kreindler, supra note 7, at 300. See also (1965) 160 Aviation Daily 251 (Friday, August 13, 1965): “Sen. Robert Kennedy, Rep. Wolff Fight Hague Protocol.” In addition, the leading United States international airlines were unable to agree on a State Department-requested waiver of the limits of the Warsaw Convention up to $100,000; Kreindler, supra note 7, at 300–01.

17 ICAO Doc. 8536–3(Open) C/959–3(Open) Council-56th Session, Min., 3rd mtg., at 42(para. 16), at 52–53 (paras. 71–73).

18 See Minutes of 4th, 5th and 6th Meetings of Council, 56th Session: ICAO Doc. 8536-4-5-6(Closed) C/959-4-5-6(Closed), 60–92.

19 Ibid., 62 (para. 5).

20 Ibid., 63 (para. 5).

21 Ibid., 94(para. 1).

22 See “Is Warsaw Dying?” 29 Flight International 719 (October 28, 1965); Lee S. Kreindler, supra note 7, at 292; statement of IATA Observer at 3rd meeting of Special ICAO Meeting, Min., para. 21 : “In the meantime some 98 airlines had jointly agreed, as an interim measure, to voluntarily raise the limits of liability under Article 22 of the Convention to $50,000 in respect of carriage to and from the United States. Had the United States been satisfied with this figure, the agreement could have become effective on December 1, 1965.”

23 For text of notice of denunciation, see Kreindler, supra note 7, at 303.

24 As at April 1, 1966, ICAO had 110 contracting states. The Special ICAO Meeting was the best attended meeting on a legal subject in the history of the Organization.

25 Hungarian People’s Republic and the Union of Soviet Socialist Republics.

26 See, in particular, ICAO LIM-4: Statement of Air Transport Committee Prepared in 1952; LIM-5: Statistical Data Concerning Passenger Liability Limits under the Warsaw Convention; LIM-8: Replies to Questionnaire Appearing in LIM-3 and Attachments (Note: In the questionnaire in LIM-3, information was sought concerning the effect on insurance premiums in the event of an increase of the Warsaw/Hague passenger liability limits; amounts of settlements or judgments in respect of death or personal injury resulting from accidents; insurance provided to passengers by carriers; the price of trip insurance available to air passengers.) ; LIM-9: Note by the United Kingdom concerning insurance cost of a passenger limit of $50,000; LIM-10: United States Reply to Questionnaire (This reply contains information concerning the cost of insuring various limits).

27 No definitive votes were taken on the various proposals for limits placed before the Special ICAO Meeting.

28 This is illustrated by the United States position as expressed by its representative on the ICAO Council: “In any case, if there is no consensus on the issue of the limit of liability, the United States stands ready to enter into an agreement concerning the other matters contained in the Warsaw Convention”: See ICAO Doc. 8536–4(Closed) 0/959–4(Closed) Council-56th Session, Min., 4th mtg., 63(para. 5).

29 Many of these views are set out in detail in the statement of the United States delegation made at the 2nd meeting of the Special ICAO Meeting: See ICAO LIM-11 for verbatim transcript of this statement and Spec. Min., 2nd mtg., paras. 4–11 for a summary of the statement.

30 As long ago as 1954, Drion found the quid-pro-quo argument “basically unsound” — the emphasis is Drion’s. See Drion, H., Limitation of Liabilities in International Air Law 34–35 (The Hague, 1954).CrossRefGoogle Scholar

31 An estimate submitted by the United Kingdom (LIM-9) showed the cost of a limit of $100,000 per thousand revenue passenger miles would be 98 cents, while an estimate submitted by the United States (LIM-10) showed that it would be 96 cents. For a comparison of these submissions, see Spec. Min., 7th mtg., para. 23.

32 Even in those states of the United States where limits for wrongful death exist, they have tended to increase. No state provides for a limit in the case of bodily injury.

33 A number of the arguments given in this part of the note are summarized from the speech of the IATA Observer: see Spec. Min., 5th mtg., paras. 21–22.

34 The average settlement per Warsaw passenger fatality reached in the United States for the period 1950–1964 amounted to $6,489, while the Non-Warsaw passenger average for the same period was $38,499. See LIM-8, Appendix 2, at 53.

35 See statement of the Observer of the International Union of Aviation Insurers in Spec. Min., 17th mtg., para. 56. For an explanation of the cautious approach of insurers even in the face of an apparent improvement in aviation accident statistics, see the report on the General Meeting of the IUAI, Dublin, June 29-July 1, 1965 in (1965) Revue Française de Droit Aérien 479.

36 ICAO LIM-9. According to this estimate, the cost of a limit of $100,000 would be 98 cents per thousand revenue passenger miles.

37 ICAO LIM-10. According to this estimate, the cost of a limit of $100,000 would be 96 cents per thousand revenue passenger miles.

38 It is expected that, by the end of the 1960’s, there will be a jet aircraft, the Boeing 747, seating up to 490 passengers. It was announced, on April 13, 1966, that Pan American World Airways had ordered twenty-five of these aircraft. See The Montreal Star, April 14, 1966, at 76, cols. 1–5. There has also been a report of a double-deck 724-passenger-carrying civil aircraft, the AN-154, being developed at the Kiev Aero Works in the Soviet Union. See The Montreal Star, April 16, 1966, at 18, cols. 3–4.

39 Approximate figure given in statement of IATA Observer: see Spec. Min., 7th mtg., para. 30.

40 The estimate given in ICAO LIM-5 is that of 400 Warsaw-type fatalities and serious injuries per annum. But this figure is subject to fluctuation from year to year. For example, during the first five months of the years 1963, 1964, and 1965, the numbers of passenger deaths on scheduled airlines engaged in domestic and international flights were respectively 283, 450 and 431. See (1965) 19 Revue Française de Droit Aérien 479. A series of crashes between January 1 and March 5, 1966 caused the death of 682 passengers and crew members, 321 of the victims having been killed in three accidents in Japan.

41 ICAO Doc. 8528 Assembly, 15th Session, Resolutions, 46.

42 See, in particular, Spec. Min., 5th mtg., paras. 11-12; 9th mtg., paras. 8–9 and 11th mtg., para. 13.

43 Spec. Min., 9th mtg., para. 9.

44 See especially the remarks of the French delegation in Spec. Min., 11th mtg., para. 11.

45 See especially the statement of the Swedish delegation in Spec. Min., 13th mtg., paras. 9–11.

46 Spec. Min., 13th mtg., para. 22 (delegation of Italy) ; see also the survey of national laws contained in ICAO LIM-6.

47 Spec. Min., 13th mtg., para. 23 (delegation of Italy).

48 Ibid., para. 15 (delegation of Argentina).

49 Ibid., para. 19 (delegation of France).

50 For an outline of these proposals, see LIM-38, Report, 15–19.

51 This proposal had originally provided for absolute liability; but that element having received only 17 affirmative votes during the first exploratory vote, was not put to vote during the second exploratory vote.

52 LIM-8, Appendix 2, at 27.

53 Spec. Min., 3rd mtg., paras. 17–18.

54 Spec. Min., 13th mtg., paras. 44–51.

55 Spec. Min., 16th mtg., para. 44.

56 Ibid., para. 45.

57 Spec. Min., 18th mtg., para. 25.

58 Spec. Min., 17th mtg., para. 58.

59 As explained by the United States delegate, during the 12th meeting of the Special ICAO Meeting, the courts of the United States could obtain jurisdiction (1) over an airline in respect of any flight originating from, or destined to terminate in, the United States as shown on the ticket, including, it was believed, through or connecting flights; (2) over an airline in respect of any flight for which the ticket has been purchased in the United States from a ticket office or an agency located therein; or (3) over an airline doing substantial business in the United States either through flight operations or by maintaining, for example, a ticket, sales or advertising office, even if the flight was not flown to or from the United States and the ticket had not been purchased in that country. See Spec. Min., 12th mtg., para. 9.

60 This would be Proposal C above, but including a provision for absolute liability. For remarks of the United States delegation, see Spec. Min., 13th mtg., para. 6.

61 But this position seems to have changed, since it has been reported that the United States Department “called in the airlines during the week of March 23 [1966], and ‘Offered’ the new package of $75,000 plus absolute liability.” See Aviation Daily, Washington, Monday, April 11, 1966, at 256A.

62 ICAO Doc. 8536–4(Closed) C/959–4(Closed) Council-62th Session, Min., 4th mtg., at 63(para. 5).

63 Spec. Min., 17th mtg., para. 58.

64 Addendum. On June 27, 1966, the ICAO Council decided to establish a panel of twelve to fifteen experts in the economics of air transport or in air law, these experts to be appointed by the President of the Council. The panel, which will include observers from the International Air Transport Association and the International Union of Aviation Insurers, will report directly to the Council.

The terms of reference of the panel are, inter alia: to examine the question of limits of liability for passengers under the system established by the Warsaw Convention as amended by the Hague Protocol and to determine in this regard what provisions are required to give adequate protection to the travelling public while, at the same time, paying due regard to the legitimate interests of air carriers, keeping in mind the expected developments in air transport; to determine how the conclusions reached by the panel could be brought into effect and kept up to date and, in particular, to indicate in what manner the Warsaw Convention as amended by the Hague Protocol should be amended; to present its report to the Council before March 1, 1967, if practicable.

In view of the establishment of the panel of experts there will be no diplomatic conference on the amendment of the Warsaw Convention in 1966 and it will be for the Council to decide, in the light of the panel’s work, whether one could be convened in 1967.