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.
Unamended Convention; Air Waybill
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.
The carrier’s liability is limited to a fixed amount 250 gold francs per kilogram under the unamended Convention, unless a higher declaration is made, accepted and any additional sum payable in respect of it, has been made paid. The liimit may be expressed in the currency of the relevant jurisdiction.
Unamended Convention; Air waybill
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
Disposal of Cargo I
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.
Disposal of Cargo II
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.
Amended Convention;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.
Amended Convention;Limits to Liability
The carrier’s liability is limited to 17 SDR per kilogram for checked luggage and cargo, 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.
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 a 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.
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.
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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