Air Transport Conventions I
The Warsaw Convention deals with the limitation of liability for loss and damage incurred by passengers and cargo in air transport. The first Warsaw Convention made in 1929 was the Convention for the Unification of Certain Rules Relating to International Carriage by Air.
The Warsaw Convention has been amended and has been ultimately replaced by the Montréal Convention made in 1999. The latter Convention has been adopted by over 100 states including the United States and the EU States, but has not been adopted universally. Either the Warsaw or Montréal Convention may apply to air accident or incident.
The Warsaw and Montreal Conventions makes substantive provisions that are given effect in the domestic law of ratifying states. States agreed in the Conventions to incorporate the provisions of the Warsaw Convention and later the Montréal Convention into their national law.
The Conventions did not establish any judicial or enforcement mechanism. Its provisions are given effect domestically, through the courts and legal systems of the participant signatory states.
The IATA which is the representative body for airlines, incorporate the terms and conditions provided in the relevant Convention, into their standard contracts for carriage. It has updated terms and conditions to reflect the amending and replacement Conventions. It remains incorporated in electronic tickets which have now become almost universal.
Air Transport Conventions II
The Conventions were driven by perceived necessity to cap liability for damages in order to reduce the airline industry’s exposure to claims. This was seen as necessary in the earlier days of aviation to encourage investment and innovation.
The Conventions place presumptive liability for damages, death and injury to passengers or loss to baggage and cargo on the airline. This reflects, in one sense, the common law common carrier principle of unconditional liability.
States agree under the Convention to limit the liability of carriers to passengers for personal injuries and loss to cargo. The initial caps have been revised at first to reflect changes in the value of currencies and inflation.
Liability could be avoided, even within the original caps by proving that all necessary measures had been taken to avoid the alleged wrongdoing or showing that it was impossible to take these measures.
The Hague Protocol in 1955 doubled the liability caps. Wilful misconduct on the part of the carrier removed the liability cap. This was replaced by the 1955 Hague Protocol which removed the liability cap, if it was proved that the damage or injury resulted from an act or omission of the carrier, which was undertaken either with intent to cause damage or done recklessly with knowledge that such act or omission would probably result in damage or injury.
The US did not ratify the Hague Protocol because it was dissatisfied with the revised liability cap, which the American courts sought to avoid.
The Guadalajara Supplementary Convention confirmed that when carriers provide a single service under a contract of carriage, they are protected by the Warsaw Convention in respect of the part of the journey which they undertake. Although 84 States ratified this Convention, the United States did not do so.
The IACO promoted the Montréal Protocols in 1975. It replaced the monetary standard by International Monetary Fund “Special Drawing Rights” as the notional currency. A liability cap of 100,000 SDR rights was provided. It contemplated electronic agreements and transactions. The liability for cargo was increased to 17 SDR per kilogram (c.$25). It was, once again rejected by the United States.
The Warsaw Convention allows carriers, to agree by contract to higher limits of liability and to agree on terms and conditions which did not conflict with the Convention.
Undr the Montreal Agreement between the US and IATA in 1975, IATA airlines consented to an increased liability of €75,000 for international flights with a United States stopping point, origin or destination.
The IATA Intercarrier Agreement of 1995 agreed to waive the Warsaw Convention and Hague Protocol limitations for passenger liability or death arising out of certain accidents. The agreement excluded absolute liability for passenger injury or death and waived the “all necessary measures” defence for the elements of claims below 100,000 SDR.
Strict liability applied below 100,000 SDR in respect of claims above that level. A defence on the basis of necessary measures applied.The above agreement effectively set out international liability where carriers were in the United States for the following for over 30 years.
The EU adopted a Regulation in 1997 applicable to airline licensing in the EU. It in effect replicated the IATA agreement between carriers. Airlines are subject to unlimited liabilities; the strict liability provisions apply with the with “all necessary measures” defence for the part of the claim above 100,000 SDR. Carriers could invoke contributory negligence.
By the end of the 20th century, the limitations on liability for personal injury seen as inappropriate, given the development of the airline industry and general principles of liability.
The Montréal Convention accords with the IATA agreement and abolished limits on recovery for death and personal injury. There is strict liability for proven damage up to 100,000 SDR. There is unlimited liability above this level with a relatively limited number of defences.
The Convention applies where a point of departure or arrival are in two states which have adopted the Convention or within a single state if in that latter case, there is a stop in another State regardless of whether that state is party to the Convention. It does not apply to flights within States, even if they cross third-party territory.
When there are successive carriers, the claim may be brought against the carrier which performed the carriage during the accident or delay occurred. This is unless the first carrier undertook liability for the entire trip, expressly. The issue is less common in modern times, where code sharing and partnership arrangements are common. The carrier’s liability includes contractor’s liability under code-sharing arrangements and they are not a successive carrier as such.
Clauses in international air carriage contracts which purport to change the law to be applied or the jurisdiction are rendered void. This makes the Montréal system, in effect, mandatory. Clauses which purport to relieve the carrier are ineffective to the extent they are inconsistent with the Convention.
Scope of Montreal Convention and Limitations
The Montréal Convention is intended to cover carriage by entities other than the contracting carrier, including codeshare partners. This extends the coverage to alliance partners which perform parts of international transport. carriage, which are not the carrier who contracts with the passenger.
The Montréal Convention is less prescriptive in relation to documentary procedures which apply respect to the carriage of cargo. They are largely left for agreement between the consignor and carrier. The consignor remains responsible for the accuracy of the details appearing on the airway bill. The rights of the consignor and consignee regarding the air carrier are broadly retained from the Warsaw regime.
The air waybill should set out the weight of the consignment, the place of departure and destination in any applicable foreign stopping place, in the case of transport within a State.
A carrier may reduce liability for loss of or to cargo due to any of the following events:
- an apparent defect, quality or vice;
- defective packaging performed by an entity other than the carrier;
- the act of war or armed conflict;
- the act of a public authority in connection with the entry, exit or transit.
The Air Navigation and Transport (International Conventions) Act 2004 allowed Ireland to ratify the Montreal Convention and gives it the force of law in Ireland. The Montreal Convention is an updated replacement of the Warsaw convention which provides rules relating to the international carriage of passengers and goods by air.
The Montreal Convention provides a worldwide system of standards and rules for carriage by air. In particular, it provides common rules in relation to the limitation of liability for the carriage of passengers, cargo and baggage in the event of damage, loss or delay.
The Montreal Convention supersedes the Warsaw Convention and system in relation to States that have implemented it. Where air travel or transport takes place between Ireland and another state which has not ratified the Montreal Convention, the most recent Convention common to both Ireland and that state will apply. The earlier convention applies in such case
Montreal Convention and Existing Law
The Warsaw Convention with the amendments made by the Hague Protocol are set out in Schedule 1 to the Irish legislation. The Convention with the additional amendments made by Protocol No 4 of the 1975 Montreal Convention (set out in Schedule 2), are given the force of law. The first two Conventions are already part of Irish law under the Air Navigation and Transport Acts.
The Montreal Convention supersedes the Warsaw System, in every State which implements it. The rules of the Montreal Convention are already included in European Law, for all European airlines and their passengers, through EU Regulations 2027/1997 and 889/2002. Ratification of the Montreal Convention extended the higher liability limits worldwide, thereby providing very significant benefits for passengers travelling with non-EU airlines.
The Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.
International carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party
Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of the Convention.
Carriage to be performed by several successive carriers is deemed, for the purposes of the Convention, to be one undivided carriage if it has been regarded by the parties as a single operation, whether it has been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territory of the same State.
Carriage performed by State and carriage of postal items
The Convention applies to carriage performed by the State or by legally constituted public bodies provided it falls within certain conditions
In the carriage of postal items, the carrier is liable only to the relevant postal administration in accordance with the rules applicable to the relationship between the carriers and the postal administrations. Subject to this, the provisions of the Convention dol not apply to the carriage of postal items.
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)
Air Navigation and Transport (International Conventions) Act 2004.
AN ACT TO GIVE EFFECT TO CERTAIN INTERNATIONAL CONVENTIONS RELATING TO INTERNATIONAL CARRIAGE BY AIR; AND TO PROVIDE FOR RELATED MATTERS. [13th April, 2004]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
1.—This Act may be cited as the Air Navigation and Transport (International Conventions) Act 2004.
Purpose of Act.
2.—The purpose of this Act is to give effect, as law of the State, to certain international conventions regulating the international carriage of passengers and goods by air.
3.—(1) In this Act, unless the context otherwise requires—
“the applicable provisions” means—
(a) the provisions of the Warsaw Convention set out in Schedule 1, and
(b) the provisions of that Convention (as amended) set out in Schedule 2, and
(c) the provisions of the Montreal Convention set out in Schedule 3,
so far as they relate to the rights and liabilities of carriers, carriers’ employees and agents, passengers, consignors, consignees and other persons;
“Carriage by Air Conventions” means—
(a) the Warsaw Convention, and
(b) that Convention as further amended by Protocol No. 4 of Montreal, 1975, and
(c) the Montreal Convention;
“Community air carrier” has the meaning given by Article 2 of the Council Regulation;
“Council Regulation” means Council Regulation (EC) No. 2027/97 of 9 October 1997 on air carrier liability in the event of accidents as it has effect in accordance with the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as adjusted by the Protocol signed at Brussels on 17 March 1993 (as amended by the Decision of the EEA Joint Committee No. 34/98 of 30 April 1998);
“Minister” means the Minister for Transport;
“Montreal Convention” means the Convention known as the Montreal Convention 1999;
“Warsaw Convention” means the Convention known as the Warsaw Convention, as amended at The Hague in 1955.
(2) In this Act, a reference to an Article of, or a Protocol to, any of the Carriage by Air Conventions is a reference to that Article or Protocol as it appears in the Schedule in which it is set out.
(3) In this Act—
(a) a reference to a Part or section is a reference to a Part or section of this Act, unless it is indicated that a reference to some other enactment is intended, and
(b) a reference to a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended, and
(c) a reference to a particular enactment is a reference to the enactment as amended, adapted or extended by or in accordance with any subsequent enactment, including this Act.
Implementation of International Conventions
Conventions to have the force of law in the State.
4.—(1) The applicable provisions of the Carriage by Air Conventions have the force of law in the State in relation to any carriage by air to which they apply, irrespective of the nationality of the aircraft performing that carriage.
(2) Subsection (1) does not apply in relation to Community air carriers to the extent that the provisions of the Council Regulation have the force of law in the State.
(3) Subsection (1) is subject to the other provisions of this Act.
(4) If more than one of the Carriage by Air Conventions applies to a carriage by air, the applicable provisions that have the force of law in the State are those of whichever is the most recent applicable Convention in force.
Inconsistency between English text and French text.
5.—If there is an inconsistency between the English text of the applicable provisions contained in Schedules 1 and 2 and the French text of those provisions, the French text prevails. The French texts of those provisions are deposited in the Archives of the Ministry for Foreign Affairs of Poland as provided for in the Warsaw Convention and in that Convention as amended by Protocol No. 4 of Montreal, 1975.
Power of Government to certify contracting parties.
6.—(1) The Government may, by order notified in Iris Oifigiúil, certify—
(a) who are the contracting parties to any of the Carriage by Air Conventions, and
(b) in respect of what countries or territories they are respectively parties, and
(c) to what extent they have availed themselves of the Additional Protocols and Article 57(a) of the Montreal Convention.
(2) The Government may, by order notified in Iris Oifigiúil, certify any revision of the limits of liability established under the Montreal Convention.
(3) The provisions of the Carriage by Air Conventions specified in subsection (4) do not have the effect of extending references in the applicable provisions to the territory of a contracting party (except those that refer to the territory of a state, whether a contracting party or not) so as to include a territory in respect of which the contracting party is not a party.
(4) The following provisions are specified for the purposes of subsection (3):
(a) Article 40 of the Warsaw Convention;
(b) Article 40A of that Convention as amended;
(c) Paragraph 1 of Article 56 of the Montreal Convention.
(5) An order made under this section may include such transitional and consequential provisions as appear to the Government to be necessary.
Liability of carrier if a passenger dies.
7.—(1) In this section—
“dependant”, in relation to a passenger in respect of whose death a liability is imposed on a carrier by a relevant Article, means any of the following persons who has suffered injury or mental distress because of the death:
(a) the wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister, stepbrother or stepsister of the deceased;
(b) a person whose marriage to the deceased—
(i) has been dissolved by a decree of divorce that was granted under the Family Law (Divorce) Act 1996 , or
(ii) has been dissolved in accordance with a law of a country or jurisdiction (other than the State), but only if the dissolution is recognised in the State;
(c) a person who, although not married to the deceased passenger, had, until the date of death, been cohabiting with the deceased as the deceased’s spouse for a continuous period of not less than 3 years;
(a) in relation to the Warsaw Convention, means Article 17 of that Convention, or
(b) in relation to that Convention as amended, means Article 17 of that Convention (as amended), or
(c) in relation to the Montreal Convention, means Article 17 of that Convention.
(2) For the purposes of subsection (1), a person who is acting as a guardian or parent of a child is taken to be a parent of the child.
(3) Any liability to pay damages imposed on a carrier in respect of the death of a passenger by the relevant Article supersedes a liability of the carrier in respect of the death of the passenger under any law of the State (including the common law).
(4) The following provisions have effect in relation to the action to enforce such a liability:
(a) the liability is enforceable for the benefit of the dependants of the deceased passenger;
(b) only one action for damages may be brought in the State against the same person in respect of the death;
(c) the action may be brought—
(i) by the personal representative of the deceased passenger, or
(ii) by all or any of the passenger’s dependants, if, at the end of 6 months after the death of the passenger, there is no personal representative for the passenger, or if, within that period, there is such a personal representative but that representative has not brought an action within that period;
(d) the action is for the benefit of all the dependants of the deceased passenger who either reside in the State or, if not residing in the State, express a wish to benefit from the action;
(e) the plaintiff must provide the defendant with particulars of the persons for whom the action is brought;
(f) subject to paragraph (m)—
(i) the damages are to be the total of such amounts (if any) as the court considers proportionate to the injury resulting from the death to each of the dependants, respectively, for whom the action is brought, and
(ii) subject to paragraph (g), the total of the amounts (if any) as the court considers reasonable compensation to each of the dependants for mental distress resulting from the death;
(g) the total of all amounts (if any) awarded under paragraph (f)(ii) may not exceed—
(i) the amount specified in paragraph (b) of section 49 (1) of the Civil Liability Act 1961 (as amended by the Civil Liability (Amendment) Act 1996 ), or
(ii) if an order made under subsection (1A) of that section (as inserted by section 2 of the Civil Liability (Amendment) Act 1996 ) specifies another amount for the purposes of that paragraph, that other amount;
(h) each amount awarded under paragraph (f) must be indicated separately in the award;
(i) in addition, damages can be awarded in respect of funeral and other expenses actually incurred by the deceased passenger, or by the deceased passenger’s dependants or personal representative, as a result of the accident that caused the passenger’s death;
(j) if the defendant decides to pay money into court in respect of the action, the money can be paid as a single sum as damages for all the dependants without apportioning it among them;
(k) the amount recovered in the action must, after deducting the costs not recovered from the defendant, be divided among the persons entitled in such shares as the court determines;
(l) in assessing the damages, the court may not take account of any sum payable on the death of the passenger under a contract of insurance, pension, gratuity or other similar benefit payable (whether under an enactment or otherwise) in consequence of that death;
(m) the court before which the action is taken may, at any stage of the proceedings, make such orders as appears to it to be just in view of—
(i) the applicable provisions limiting the liability of the carrier, and
(ii) any proceedings that have been, or are likely to be, taken outside the State in respect of the death of the passenger;
(n) a person referred to in paragraph (b) of the definition of “dependant” in subsection (1) is not entitled to be awarded damages in respect of mental distress alleged to have been caused to the person by the deceased’s death;
(o) in fixing damages to be awarded to a person referred to in paragraph (c) of the definition of “dependant” in subsection (1), the court shall consider whether or not the person had an enforceable right to financial maintenance by the deceased and, if it finds that the person had no such right, shall take that fact into account, along with any other relevant consideration.
Notification of reservation to the Montreal Convention.
8.—(1) In relation to the Montreal Convention, the Minister may, at any time, make a notification as provided for by Article 57 of that Convention.
(2) The Minister may amend or revoke a notification made under this section, including a notification made under this subsection.
Domestic carriage by air.
9.—The Minister may, by order notified in Iris Oifigiúil, apply provisions of Schedule 3 to any carriage by air (not being international carriage as defined in that Schedule) of a kind specified in the order, subject to any exceptions or modifications as may be so specified.
Expenses of the Minister.
10.—The Expenses incurred by the Minister in the administration of this Act are, to such extent as may be sanctioned by the Minister for Finance, payable from money provided by the Oireachtas.
Repeals and consequential amendments.
11.—(1) Part III of, and the First Schedule to, the Air Navigation and Transport Act 1936 are repealed.
(2) Section 2 (1) of the Air Navigation and Transport Act 1936 is amended—
(a) by substituting the following definition for the definition of the expression “the Minister”:
“the expression ‘the Minister’ means the Minister for Transport;”;
(b) by repealing the definition of the expression “the Warsaw Convention”;
(3) Section 3 of the Air Navigation and Transport Act 1936 is amended—
(a) by deleting from subsection (1) “(except Part III thereof)”, and
(b) by deleting from subsection (2) “(except Part III thereof)”.
(4) Section 21 of the Air Navigation and Transport Act 1936 is amended by substituting the following subsection for subsection (3):
“(3) This section does not affect the operation of—
(a) the Air Navigation and Transport (International Conventions) Act 2004, or
(b) a contract for the carriage of passengers or goods by air in so far as the contract provides for determining or limiting the liability of the carrier.”.
(5) Section 24 of the Air Navigation and Transport Act 1936 is amended by substituting the following subsection for subsection (7):
“(7) This section does not affect the operation of—
(a) the Air Navigation and Transport (International Conventions) Act 2004, or
(b) a contract for the carriage of passengers or goods by air in so far as the contract provides for determining or limiting the liability of the carrier.”.
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