Amended Warsaw Convention
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.
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.
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.
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.
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.
The carrier’s liability is limited to 17 SDR per kilogram (pound) for checked luggage and cargo, or US$20 per kilogram (pound) for non-signatories of the amended Montreal Convention, unless a higher declaration is made, accepted and any additional sum payable in respect of it, has been made paid.
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 is 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.
Limitation of Liability
The carrier’s right to limit its liability under the unamended Warsaw Convention is broadly similar to that under the amended convention. Liability may not be relieved for wilful misconduct in accordance with the law of the place deciding the matter. This extends to wilful misconduct of employees acting within the scope of their employment.
If the carrier accepts the passenger without a ticket having been delivered or accepts baggage without a baggage check but does not include the requisite details and the statement that it is subject to the rules of described particulars, the right to rely on the Convention’s limitations is lost.
In the case of passengers, a passenger must be issued with a ticket, giving details of the place of issue, departure, destination, any agreed stopping points, the name and address of the carrier and a statement regarding the application of the Warsaw Convention limitations on liability. The carrier’s liability to a passenger is limited under the unamended convention. Higher limits may be agreed by the terms of the contract.
Broadly similar provisions apply in respect of the carriage of baggage. A baggage check must be made out to the passenger containing particulars of
- the place of issue,
- the points of departure and destination,
- the name of carrier,
- the number of the ticket
- the statement of delivery
- the number and weight of packages
- thee amount of value if declared and
- a statement that the liability is limited by the Warsaw Convention rules.
The passenger must complain immediately in relation to damage to baggage and at the latest within three days from the date of receipt. In the case of delay, the complaint must be made within 14 days of when the baggage is made available.
Complaints must be made in writing under the document of carriage or by way of a separate notice. Outside of these time limits action only lies in respect of fraud.
The liability under the unamended convention is 17 SDR per kilogram (pound) for checked luggage and cargo, or US$20 per kilogram (pound) for non-signatories of the amended Montreal Convention. A special declaration may be made increasing the liability with the payment of a supplement as necessary to reflect the increased risk.
Air Waybill I
The consignor may be required to make an air waybill in the case of carriage under the unamended Warsaw Convention. The carrier may require separate air waybills where there is more than one package.
The air waybill must be made out in three parts and delivered with the cargo. The first is for the carrier and must be signed by the consignor. The second is for the consignee and must be signed and accompany the goods. The third is signed by the carrier and is handed to the consignor after acceptance. It is presumed that if the carrier makes out the air waybill, that he has done so on behalf of the consignor.
In the case of delay of the cargo, the person who is entitled to receive delivery must complain forthwith after discovery of damage or at least within seven days of receipt. In the case of delay, the complaint must be made within 14 days from the date on which the cargo has been made available. The complaint must be made in writing. Time limits are extended beyond this, only in the case of fraud.
Air Waybill II
The air waybill must specify the
- place and date of execution;
- place of departure and destination;
- agreed stopping places;
- name and address of the consignor;
- name and address of the first carrier;
- name and address of consignee if applicable,
- nature of cargo,
- number of packages,
- methods of packaging, markings, numbers
- weight, quantity and volume and dimensions of cargo
- apparent condition
- freight if paid and date and place of payment and the person who is to pay it
- if cargo is sent for payment on delivery, the price and costs applicable.
- the amount or value of baggage at delivery
- the number of parts of air waybill
- documents handed to carrier to accompany air waybill.
- time fixed for completion
- note of the route.
- statement of the applicability of the unamended Warsaw Convention rules
Passenger Liability I
Passenger Liability II
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
Crriage 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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