The international carriage of passengers and goods by air is governed by a number of Conventions. Most derive from the Warsaw Convention 1929 which sought to create a uniform system of rules for international carriage by air.
The Warsaw Convention was amended by The Hague Protocol 1955 producing an amended version of the Convention, commonly referred to as the Warsaw Hague Convention. The Guatemala Protocol 1971 and additional protocols agreed at Montréal in 1975 produced the third version referred to as the Warsaw Hague Montréal Convention.
The Warsaw Convention as amended, (which limits the liabilities of carriers, employees, passengers, consignors and others) has the force of law in Ireland. It applies in relation to carriage by air to which the Convention applies. It applies irrespective of the nationality of the aircraft.
The rules of the Conventions regulate and limit the liability of air carriers. They are applicable only to carriage within the definition of international carriage under the Convention. International carriage is generally governed by the above Conventions. International carriage by entities other than contracting carriers is governed by the Guadalajara Convention of 1961.
The carriage may be governed by the original or earlier unamended Conventions in a given case, depending on whether the relevant states have adopted the relevant original or amended Convention.
Scope of the Conventions
The Warsaw Convention as amended applies to the international carriage of personal baggage and cargo by aircraft for reward. It also applies to gratuitous carriage by air.
The legislation provides for the certification of states who are parties to the relevant Conventions from time to time. Some states are party to earlier versions of the Convention only. Where carriage is partly by air and partly by another method of transport, the air Conventions apply to the air carriage only. Where carriage is by road and air, and the vehicle carrying the goods is carried by air without unloading, CMR (the carriage or goods by road Convention) applies.
The contract of carriage may make special provision regarding other modes of the carriage. The only limitation is that the air Conventions are observed in respect of the carriage by air element.
The Conventions apply to carriage by air by governments and governmental authorities. The (state) contracting parties to the Conventions may reserve the right to declare at the time of accession to the Conventions that it does not apply to their states. However, only a small number of States have exercised this option.
Common Law I
Where the carriage is not governed by one of the Conventions as adopted into domestic law, then it is governed by the contract and the common law rules as to carriage, subject to the conflicts of law rules applicable in the respective state.
There is a greater body of case law with well-developed principles in relation to sea transport. Those principles are likely to apply to cases involving aircraft by analogy.
Most conditions in Convention and non-Convention cases are governed by the contract between the carrier and the passenger or the carrier and the consignor of the cargo. A passenger contract is made by the passenger accepting a ticket or airway bill offered by the carrier setting out the terms and conditions of the contract. The contract or ticketing document will incorporate or refer to the carrier’s general conditions of carriage.
Common Law II
In cases which are not governed by international Convention, the carrier may be able to limit or exclude its liability to a greater extent than the Convention allows. There are a very limited number of such cases in international carriage. The carrier may limit or exclude his liability subject to unfair contract terms in consumer contracts regulations.
Even in these cases, the carrier may have duties at common law as a common carrier, whether to a passenger or relating to cargo.
Whether or not there is a contract in place between the parties, the ordinary principles of civil liability apply. The carrier has an obligation to take reasonable care and exercise appropriate care and skill in performing the contract of carriage.
Conventions Override Contract
Where a contract is governed by the Warsaw or revised Conventions, clauses in the contract and agreements entered before the damage occurs which purport to override the Convention rules or alter them, are void and have no effect. A carrier may make regulations which are not inconsistent with Convention.
Arbitration clauses are permissible, provided that arbitration is to take place in one of the jurisdictions in which legal action must be brought.
The carrier is not obliged to enter a contract if it chooses not to do so, subject to competition law rules. In some narrow cases, a public-sector carrier has statutory obligations to accept passengers and freight. Most carriers are not “common law” carriers, who have an obligation to accept all comers.
Carriage under Warsaw Convention
International carriage under the Convention means carriage, which according to the agreement, the place of departure and destination (whether or not there is a break) are either situate in the territories of two state parties to the Convention or within the territory of one state, if there is an agreed stopping place within the territory of another state even though that latter state is not a party to the Convention. Carriage between two places in the territory of a single state without stopping is not international carriage under the Convention.
Carriage by successive carriers is deemed to be single carriage if it is a single operation, even if provided for under more than one contract. Accordingly, the carriage will not lose its international character because one part of the contract is performed in one state only.
Each carrier who accepts passengers, baggage or cargo subject to the Warsaw Convention as amended, is deemed to be subject to the rules and is deemed a contracting party to the carriage contract insofar as it deals with carriage for which he is responsible.
The Hague Convention does not apply to the carriage of mail and postal packages. They are subject to separate Conventions.
Claim for Damages
Actions for damages must be taken at the option of the plaintiff in the territory of one of the contracting States. This may be either before the court with jurisdiction where the carrier is ordinarily resident, has his place of business, where the contract is made or the courts with jurisdiction at the place of destination.
In the case of carriage performed by the actual carrier, actions for damages must be brought at the claimant’s option either as above or before the court at the place where the actual carrier is ordinarily resident or has its principal place of business.
Where carriage is performed by an actual carrier, a claim for damages may be brought at the claimant’s election against the carrier or the contracting carrier or against both separately. If it is brought against one, the other party may be joined.
Carriage by successive carriers is deemed to be a single carriage for the purpose of the Convention. A passenger or his representatives may take action only against a carrier who has performed the carriage during which the accident, delay or incident, etc. occurred.
In the case of baggage or cargo, there is a right of action against the first carrier, for the passenger or consignor. The passenger or consignee has a right to an action against the last carrier. Each may take action against a carrier who performed carriage during which damage, destruction, loss, etc. occurred. They are jointly and severally liable to the claimant who has suffered the loss.
Defences for Carrier
A carrier may escape liability under the Convention if it, its employees and agents have taken all necessary measures to avoid the damage or it is impossible to take such measures.
Contributory liability on the part of the passenger, consignors or consignee, etc. may reduce or eliminate the liability of the carrier.
Where an action is taken against the employees or agents of the carrier, the latter are entitled, if they can show that the matter is within the scope of their employment or authority, to invoke the provisions of the Convention relating to the liability applicable to the carrier for whom he is employed or has been retained. The total amounts received from the carrier, employees and agents are not to exceed the Convention amount.
Variation or Disapplication of Limits
Provisions which seek to relieve the carrier or impose a lower limit than that provided by the Conventions, are void. This does not invalidate the whole contract.
The liability of the carrier under the Convention may be varied by the terms of the contract of carriage. In the case of baggage and cargo, the limits can be varied by a declaration as to the value of the goods concerned. In the case of carriage provided by the actual carrier, no act or omission by the contracting carrier is to exceed the limits in the Convention for liability. No waiver of rights by the contracting carrier is to bind the actual carrier unless agreed by it.
The limitation of liability does not apply to damage resulting from an act or omission of the carrier or its employees which is done intentionally or recklessly, with the knowledge that the damage would probably result. In the case of an employee, it must be shown that the action is within the scope of his employment.
The right to exclude or limit liability is lost, if with the carrier’s consent, the passenger embarks without a ticket having been delivered or if the ticket does not include the Warsaw Convention notice. The right to limit or exclude liability for baggage does not apply if the carrier takes charge of the baggage without a baggage check having been delivered, or if the check does not include the notice required by the Convention.
In the case of cargo lodged with the carrier’s consent, without an air bill having been made out, or if the air bill does not include the required notice, the ability to limit or exclude liability is similarly excluded.
Time Limit for Claim
The action for damages must be brought within two years from the date of arrival of the cargo at the destination or the date on which it ought to have arrived or on which the carriage was stopped. This applies to actions against carriers, their employees arising out of damage to which the Conventions apply.
In the case of contribution from joint wrongdoers, there is a further two-year period after judgment is given.
Carriage of Cargo under the Warsaw /Hague Conventions.
Carriers of cargo may require a consignor to furnish an air waybill. The consignor is entitled to have the carrier accept the waybill. The carrier may require the consignor to take out separate waybills where there are several packages.
The waybill must be made out by the consignor in three parts and delivered with the cargo. The first part marked for the carrier and is to be signed by the consignor. The second part is for the consignee and is signed by the carrier. It must accompany the cargo. The third part is to be signed by the carrier and handed by it to the consignor, after acceptance of the cargo.
The carrier must sign prior to the loading of the cargo on board the aircraft. The carrier’s signature may be stamped or printed. If the carrier makes out the airbill, at the consignor’s request, it is presumptively done so on behalf of the consignor.
Air Waybill I
The air waybill must specify
- the place of departure and destination;
- if within a single territory, any one of any stops outside the territory;
- notice that if the carriage involves destination or a stop in a country other than the country of departure, that the amended Warsaw Convention may be applicable and that in most cases, it limits the liability of the carrier in respect of loss or damage to cargo.
The absence, irregularity or loss of an air waybill does not affect the validity of the contract of carriage, which remains subject to the amended Warsaw Convention rules. However, if the cargo is loaded onboard with the carrier’s consent without an air bill having been made out conforming to the above requirements, the limitations on liability do not apply.
The consignor is obliged to ensure that the particulars are completed on the air waybill. He is obliged to indemnify the carrier against loss or damage suffered by him or by any other person to whom the carrier is liable, by reason of the incorrectness or incompleteness in the particulars and statements furnished by the consignor.
Air Waybill II
The air waybill is presumptive evidence of the conclusion of the contract, the receipt of the cargo and the conditions of carriage. Statements regarding weights, dimension, packing, numbers of packages are presumptive evidence of the facts stated. Statements as to the quantity, volume and condition are not evidence against the carrier except insofar as they have been checked by him in the consignor’s presence or to the extent that they relate to the apparent condition of the cargo.
It is possible to have a negotiable air waybill. However, it is not as practically necessary as in the case of a bill of lading, due to the speed of transportation.
The consignor must furnish information and attach to the air waybill, the documents necessary to meet customs and other frontier requirements before cargo can be delivered to the consignee. It is liable for damage caused to the consignee by its irregularity, absence or the insufficiency of any such information or documents. This does not apply where the loss is due to the default of the carrier, its employees or agents. The carrier is not obliged to inquire into the adequacy or sufficiency of the documents.
Disposal of Cargo
The consignor may dispose of the cargo by withdrawing it, stopping it in the course of the journey or calling for it to be delivered to another place other than the consignee named in the air waybill. He may require the cargo to be returned to the point of departure.
The right must not be exercised in a way that prejudices the carrier or another consignor. Expenses occasioned by the exercise of the right must be paid. If it is not possible to carry out these orders, the carrier must inform the consignor.
If the carrier obeys the orders, without requiring the production of the part of the waybill delivered to the consignor, he may be liable for damage caused to any person who is lawfully in possession of the same.
The consignor’s rights cease when the rights of the consignee to delivery arise. If the consignee does not accept the air waybill or cargo or cannot be communicated with, the rights of the consignor revive/continue.
Unless a right of stoppage is exercised, the consignee is entitled on arrival of the cargo, to require the carrier to deliver him the air bill and to deliver the cargo on payment of charges due and in compliance with the terms of the carriage in the air waybill. The carrier is obliged in the absence of a contract to the contrary, to notify the consignee upon arrival.
Each of the consignor and consignee may enforce the rights given to them by the above provisions relating to stoppage, disposition and delivery, provided they comply with the terms of the contract.
Liability of Carrier
The carrier is liable for loss and damage sustained in the destruction, loss or damage of cargo that took place during carriage by air. This liability applies to the period from when the cargo is in charge of the carrier, whether in the aerodrome or onboard. It does not, however, cover carriage by other means outside an aerodrome. If, however, the carriage takes place in the performance of a contract for carriage by air for the purpose of loading, delivery and transhipment, any damage is presumed, until the contrary is shown, to have taken place during the air carriage.
The receipt by persons entitled to the cargo without complaint is presumptive evidence that it has been delivered in good condition in accordance with the contract. Where the cargo is damaged, the person entitled to delivery must complain to the carrier immediately after discovery or within 14 days of receipt. If the complaint relates to a delay, the complaint must be made at least 21 days from when the cargo has been placed at his disposal.
Complaints must be made in writing on the document of carriage or by separate notice. If a complaint is not made, no action lies against the carrier other than where there has been fraud.
Limits to Liability
The carrier’s liability is limited by statute unless the consignor has made a special declaration as to the value or paid supplementary sums, as applicable, to the carrier. In this case, the maximum sum is the declared sum.
In the case of loss or damage to a part of the cargo or anything contained in it, the weight to be taken into account in determining the limit of liability is the weight of the package or packages concerned. Where the loss affects other packages, the total weight of packages is to be taken into consideration. The limitation is per kilogram.
A carrier is liable for damage caused by a delay in the carriage of passenger’s baggage or cargo by air. Save where the carrier has agreed to perform the carriage within an agreed time, the obligations are to be performed within a reasonable time. No liability arises for a delay until a reasonable time has elapsed.
The Original Unamended Warsaw Convention
The unamended Warsaw Convention may apply as regards carriage with certain States. It applies to carriage, in which under the agreement, the place of departure and destination are situated in states which are party to that Convention.
The unamended Warsaw Convention does not apply to carriage under the terms of the International Postal Convention. It does not apply to gratuitous international carriage by a person or company which is not an air transport undertaking.
It does not apply to experimental trials by air navigation undertakings with a view to establishing a regular line of air navigation. It does not apply to carriage performed in extraordinary circumstances outside the air carrier’s normal scope of business.
The unamended Convention contains provisions as to the limitation of liability for death or injury to passengers, damage, destruction or loss to cargo, registered baggage and objects which the passenger takes himself, and for damage caused by the delay. Action can only be brought within the limits applicable under the unamended Convention.
The rules cannot be changed by the contract between the parties. Provisions which fix a lower limit of liability for the carrier are ineffective.
Unamended Convention Limits on Liability
The provisions of the unamended Convention are similar to those in the Warsaw Hague Convention in relation to the jurisdiction which the actions may be brought, limitation of actions, liability for delay and contributory negligence.
The carrier may escape liability if it proves that
- it and its employees took all necessary measures to avoid the damage, and it was impossible for them to take other measures
- in the carriage of cargo and baggage, it proves the damage was occasioned by negligent pilotage or negligence in the handling of the aircraft or navigation and
- that in all other aspects, it and its employees have taken all necessary measures to avoid damage.
Certain maximum measures of liability are specified. An increased limit may be agreed under a special contract. In the case of baggage and cargo, a special declaration may be made as to the value of the goods concerned.
In the case of an action brought against the carrier’s employee, if he proves that he was acting within the scope of the employment, he is entitled to invoke the limitations in the Convention. The aggregate amounts recoverable from carriers and employees may not exceed the limits under the amended Convention.
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
Carriage 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)
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