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A NEW ERA IN THE LAW OF INTERNATIONAL CARRIAGE BY AIR: FROM WARSAW (1929) TO MONTREAL (1999)

Published online by Cambridge University Press:  17 January 2008

Bin Cheng
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Abstract

For 70 years the 1929 Warsaw Convention,1 which came into force in 1933, governed supreme, in its numerous permutations, virtually all international carriage of passengers, baggage and cargo throughout the world and, thanks to voluntary adoption by States, also much of their domestic carriage, albeit with modifications. It was not until 1999 that nations concluded at Montreal the Convention for the Unification of Certain Rules for International Carriage by Air2 designed to replace it. The latter came into force on 4 November 2003, by coincidence also 70 years after the entry into force of Warsaw.3 A new era in the law of international carriage by air has begun.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 53 , Issue 4 , October 2004 , pp. 833 - 859
Copyright
Copyright © British Institute of International and Comparative Law 2004

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References

1 Convention pour l'unification de certaines règles relatives au transport aérien international, Warsaw, 1929, in force 1933 (137 LNTS11; ICAO Doc 7838, 9201). Both the original authentic French text and the official British translation, International Convention for the Unification of certain Rules Relating to International Carriage by Air, may be found in the UK Treaty Series No 11 (1933), Cmd 4284; Carriage by Air Act, 1932 (22 and 23 Geo 5, c 36, First Schedule). In the United States, where the authentic text applies, the translation that is used (49 Stat 3000, TS 876) differs slightly from the British. All three versions are reproduced in IATA,Essential Documents on International Air Carrier Liability (1999), which contains most of the relevant documents on the subject, right up to the Montreal Agreement 1999.Google Scholar

2 ICAO Doc 9740; UK Command Papers, Cm 4651; Carriage by Air Act 1961 (c 27), Schedule IB, as inserted by Schedule 1 to the Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002 (SI 2002/263). The UK ratified the Convention on 29 04 2004 at the same time as the European Community and twelve other EC States, and brought the Order into force on 28 June 2004, the day its and the latter's ratifications and approval took effect. The EC Instrument of Approval contains a declaration specifying the EC's competence in the matter.Google ScholarCf Cheng, B ‘The 1999 Montreal Convention on International Carriage by Air Concluded on the Seventieth Anniversary of the 1929 Warsaw Convention’ (2000) 49 Zeitschrift für Luftund Weltraumrecht (ZLW) 287–307 and 484–99.Google Scholar

3 ie 60 days after the 30th ratification, which was that of the USA. Ratification by the USA ensures that in due course there would be quasi-universal acceptance.Google Scholar

4 See Cheng, B ‘The Law of ‘International’ and ‘Non-International’ Carriage by Air’ The Law Society's Gazette 60 (1963) 196–219, 444–53, 518–25, 603–10, 665–71, 747–55, 871–6; 61 (1964) 37–42, 115–22,192–9, 261–6, 336–44.Google ScholarThe law as stated in this series of articles remains valid insofar as the Warsaw, Warsaw-Hague, and Guadalajara Conventions are concerned. These instruments are still in force, and, unless denounced, remain binding on the contracting States, even when they ratify and become parties to either Montreal Protocol No 4 (see text to n 21 below) or the Montreal Convention. The treaty provisions remain unchanged by the subsequent nontreaty extras in favour of the passenger, whether unilaterally imposed by individual States or voluntarily offered by the airlines themselves. In practice, essentially only the limit of liability and national carriers are affected by them, apart from the 1966 Montreal Intercarrier Agreement in which participating carriers of various nationalities also undertake to waive their defence under Article 20(1) of Warsaw and Warsaw-Hague (see further nn 11 and 12 below), the Italian Law of 1988 (see further text to n 30 below), and very peripherally EC Regulation No 2027/97, as amended by EC Regulation No 889/2002 (see section m.B below).Google Scholar

5 Art 1(2). As used in the Convention, ‘international carriage’ refers to carriage governed by the Convention (Convention carriage), that is, carriage of which, according to the contract, the initial point of departure and the final destination are in two contracting States to the Convention, or in the same contracting State if there is an agreed stopping place in any foreign country.Google Scholar

6 Some 127 States are still parties.Google Scholar

6a See n 12 below.Google Scholar

7 Protocol to Amend the Convention for the Unification of certain Rules relating to International Carriage by Air signed at Warsaw on 12 10 1929, The Hague, 1955, in force 1963. ICAO Doc 7632.Google Scholar

8 Unofficial consolidation, op cit n 1 above, 28.Google Scholar

9 Total parties to the Hague Protocol, about 110, of which fewer than a handful are not also parties to Warsaw.Google Scholar

10 Cf Cheng, , loc cit n 4 above, at 453.Google Scholar

11 Agreement CAB 18900, approved by Order E-23680 (13.5.1966) (docket 17325).Google Scholar

12 On the use of the term ‘absolute liability’ as distinct from ‘strict liability’, see Cheng, B ‘A Reply to Charges of Having inter alia Misused the Term Absolute Liability in Relation to the 1966 Montreal Intercarrier Agreement in my Plea for an Integrated System of Aviation Liability’ (1981) 6 Annals of Air and Space Law (AASL), 3–13, at 9 et seq. Basically, absolute liability denotes liability which arises when certain specified circumstances occur, and all defences what-soever are excluded, except those specifically permitted. Often used interchangeably or confused with strict liability, where only fault is dispensed with, albeit distinction sometimes blurred.Google ScholarArt 20(1) of Warsaw and Warsaw-Hague both provide: ‘The carrier is not liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.’ Once this defence has been waived, insofar as passengers are concerned, the carrier becomes liable as soon as the following set of circumstances set out in Art 17, which is identical in both conventions, are met, no intervention on the carrier's part being required: ‘The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking’ (italics added). The only defence allowed is contributory negligence under Art 21. For the sake of convenience, liability such as that created by Arts 17 and 20(1) in combination is here referred to as being based on rebuttable presumed fault or simply presumed fault.Google Scholar

13 Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Warsaw, 1929, as Amended by the Protocol Done at The Hague, 1955, Guatemala City, 1971, ICAO Doc 8932.Google Scholar

14 Under Art 25 of Warsaw and Warsaw-Hague, in cases where the damage is caused by the carrier's wilful misconduct or a paraphrase of the concept, he is no longer entitled to invoke those provisions of the Convention which exclude or limit his liability. On the concept of wilful misconduct (dol ou… unefaute… équivalente au dol), its various forms and its role in the Warsaw System,Google Scholar see Cheng, B ‘Wilful Misconduct: From Warsaw to The Hague and From Brussels to Paris’ (1977) 2 AASL 55–102.Google Scholar

15 The Guatemala City Protocol actually uses the term ‘domicile’, but not in the English law sense. Montreal uses the expression ‘principal residence’.Google Scholar

16 As MAP3 is in substance identical, cf Cheng, B ‘What is Wrong with the 1975 Montreal Additional Protocol No 3’ (1989) 14 Air Law 220–38.Google Scholar

17 See further section G below.Google Scholar

18 Cf sections m.F.l, m.F.2(b),(c) and (g), and m.F.3 below.Google Scholar

19 ICAO Doc 8181.Google Scholar

20 See (1976) 15 International Legal Materials 499.Google Scholar

21 Respectively ICAO Docs 9145,9146,9147, and 9148.Google Scholar

22 Protocol, Art XV. There is no official consolidated text published by ICAO, but a slightly adjusted one was made by the United Kingdom in its Carriage by Air and Road Act 1979, c 28, for its Schedule 1, which, however, includes also MAP3, ie, the Montreal Package. An unofficial one is made by IATA and published op cit n 1 above, 3.Google Scholar

23 Already in 1981 John Brennan, President of United States Aviation Underwriters, speaking at the Lloyd's of London Press (LLP) International Aviation Law Seminar in Tobago sponsored by the Royal Aeronautical Society (RAeS), said in support of Bin Cheng's call (see n 25 below) for absolute, unlimited and secured liability in international carriage by air of passengers: ‘Speaking for my own company, United States Aircraft Insurance Group, in the event that there was unlimited liability in international air transportation, we would see the smallest, if any, increase in the premiums.’ After quoting various statistics, he concluded: ‘So insofar as any argument that might be made relative to the cost of coining up with an unlimited liability scheme, I think that argument can't be substantiated’, LLP, International Aviation Law Seminar, Tobago, 1981 (1981), 248.Google Scholar David L Dann, Director, Dann Kiln & Co, Underwriters Agencies Ltd, speaking next, said that ‘For my own part …I entirely associate myself with what Mr Brennan says’, ibid.

24 Cf Cheng, B ‘Compensation for Airline Passenger Death and Injury. The Future of the Warsaw Convention’ (1967) 71 J of the RAeS 501–2.Google Scholar

25 Cheng, Bin, as Chairman of the ILA Air Law Committee, reported to the 1976 ILA Conference at Madrid that the Committee, which had been considering the problem of air carriers' liability since after the 1966 Helsinki Conference, was working on such a system, see ILA, Report of the 57th Conference, Madrid, 1976, 49. The idea was first raised at a meeting of the ILA Air Law Committee in London in 1967; see ILA, Report of the 59th Conference, Belgrade, 1980, 471. See further B Cheng ‘An Integrated System of Absolute, Unlimited and Secured Liability for Passenger Injury and Death in International Carriage by Air’, in LLP, op cit n 23 above, 208–33.Google Scholar

26 At the ILA 1980 Belgrade Conference, the Committee received a report by Bin Cheng, the Chairman, on an integrated system of aviation liability covering international carriage by air and surface damage, and decided on the preparation of a draft international convention on the basis of the report, based inter alia on the principle of absolute, unlimited, and secured liability in compensation for personal injuries, including death, ILA, Report of the 59th Conference, Belgrade, 1980, 472–3. Two different drafts were prepared, one by René Mankiewicz, ILA, Report of the 60th Conference, Montreal, 1982, 553–1, the other by Bin Cheng and Jacqueline Dutheil de la Rochére, and presented in the Committee's Report to the ILA 1982 Conference, ibid 555–82. After discussion, the Conference decided to have the Air Law Committee Report, together with the discussions at the Conference transmitted to ICAO and IATA for information and comments, ibid14.

27 Prepared by Bin Cheng in association with Peter Martin, on the invitation of George N Tompkins, Jr, Chairman and Director of the LLP series of aviation law seminars, beginning with the first one at Tobago in 1981 referred to in nn 23 and 25 above, Papers from the Fourth LLP International Aviation Law Seminar, Alvor, Algarve, Portugal, October 11–16,1987, as a sequel to Cheng's paper at Tobago, loc cit n 25 above. The various papers in this volume are separately paginated. 24 pp.Google Scholar

28 Ibid 36,1–36. John Balfour was the Working Group Rapporteur. The complete text may also conveniently be found in an Appendix to B Cheng ‘Sixty Years of the Warsaw Convention: Airline Liability at the Crossroads’ Part I (1989) 38 ZLW 319–44; Part n (1990) 39 ibid 3–39. Since Alvor was submitted in 1997 as an Information Paper in his report to the ICAO Legal Committee by the Committee's Rapporteur on the preliminary text of what later became the Montreal Convention 1999, it is also available as ICAO Doc LC/30-IP/3.

29 As found in the United Kingdom Carriage by Air and Road Act 1979, c 28, Schedule 1.Google Scholar

30 English translation in op cit n 1 above, 152.Google Scholar

31 See text to n 11 above.Google Scholar

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33 Order 95–2–44, Docket 49152.Google Scholar

34 Reproduced op cit n 1 above, 51 and 55.Google Scholar See Clark, LS ‘The IATA Intercarrier Agreement of Passenger Liability and its Implementation’ [1996–1997] The Aviation Quarterly (TAQ) 3–17.Google ScholarIIA and MIA96 owe much to Lome Clark, the IATA General Counsel and Corporate Secretary.Google Scholar

35 See ICAO Consolidated Statement of Continuing ICAO Policies in the Legal Field Res A31–15, ICAO Doc 9662 (1995), App B.Google Scholar

36 ICAO Doc C-DEC 146/3 (15 11 1995).Google Scholar

37 Report of the Secretariat Study Group on the Modernization of the Warsaw Convention System (Secretariat Study Group) (Montreal 12–13 02 1996), ICAO Doc C-WP/10381, App A; orLC30-WP/4–2.Google Scholar

38 ICAO Doc C-DEC 147/15 (14 03 1996).Google Scholar

39 Report of the Second Meeting of the Secretariat Study Group (Montreal, 10–12 06 1996), ICAO Doc C-WP/10420 (14 June 1996).Google Scholar

40 Draft New Warsaw Instrument [ICAO Draft Convention on the Liability of the Air Carriers and Other Rules Relating to International Carriage by Air], ICAO Doc C-WP/10470, Attachment (29 11 1996); or LC30-WP/4, App B.Google Scholar

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44 ICAO Doc State Letter LE 4/51–97/65.Google Scholar

45 OJ L 285, 17 10 1997, 1–3.Google Scholar See further Giemulla, E and Schmid, R ‘Council Regulation (EC) No 2027/97 on Air Carrier Liability in the Event of Accidents and its Implications for Air Carriers’ (1998) 23 ASL 98–105. The Regulation has since been amended by Regulation (EC) No 889/2002 (OJ L 140, 30 05 2002, 2–5) upon the Community becoming a party to the Montreal Convention on 28 June 2004.Google Scholar

46 See n 30 above.Google Scholar

47 Preamble, Whereas (1).Google Scholar

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54 On the crucial significance of US participation in multilateral agreements on international carriage by air because of its pre-eminence as a nation of suppliers and consumers of international air transport, illustrating the role of the dominant section of international society in international rule-making, see Cheng, B ‘The Contribution of Air and Space Law to the Development of International Law’ (1986) 39 Current Legal Problems 181–210, at 189 et seq and passim, reproduced in B Cheng Studies in International Space Law (Oxford 1997), Epilogue, sect HI. US nonratification of the Hague Protocol is what has kept Warsaw alive, and caused Guatemala City and MAP3 to lose credibility and not to receive the requisite number of ratifications to come into force. Once it joins, others join, in order to be in treaty relationship with it in the matter.CrossRefGoogle Scholar

55 Para 6.Google Scholar

56 Para 4.Google Scholar

57 Para 5.Google Scholar

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61 See section n.A above, and Cheng, loc cit n 4 above, 336–7.Google Scholar

62 See n 5 above, and Cheng, loc cit n 4 above, 444–523.Google Scholar

63 See further section F.I below.Google Scholar

64 On liability, see further section F.2 below; on jurisdiction, see further section F.3 below.Google Scholar

65 See further n 93 below.Google Scholar

66 See n 19 above, and n 67 below and text thereto.Google Scholar

67 See n 19 above. In force since 1 05 1964. Eighty States were parties as of 2 Mar 1999.Google Scholar

68 See n 21 above and text thereto. In force since 14 06 1998. Forty-two States were parties as of 1 Apr 1999, including significantly the United States.Google Scholar

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70 Cf section II.E above, and sections III.F.l, III.F.2(b),(c),(e) and (g), and III.F.3 below.Google Scholar

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75 See n 42 above, at B–4, listed as LC/30-IP/3.Google Scholar

76 See n 41 above, para 2.14 (at A–3).Google Scholar

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82 Carriage by Air Act 1932, 22 and 23 Geo 5, ch 36, First Schedule.Google Scholar

83 49 Stat 3000, TS 876.Google Scholar

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90 See further Cheng, loc cit n 16 above, para 4.5: Contractual Raising of Limits for Passengers and Baggage Discouraged or Perhaps Even Banned, 233–4. On the 1966 Montreal Intercarrier Agreement, see section n.D. above.Google Scholar

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100 ICAO Doc 9571. See Arts VI and VII.Google Scholar

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