Air law 2012 copie

1

COURSE HANDOUTS PRIVATE INTERNATIONAL

AIR LAW

2

Course plan

3

Chapter 1 : Introduction to Warsaw system

What are the main aims ? •R

egulates liability of international air carrier for passengers’ death or injury, as well as for loss, delay and damage to baggage and cargo

•- Exclusive law for international air carriage: no resort to national laws.

•Set out uniform limits of liability and conditions under which claims of liability against the carrier are to be made.

•Unified documents of carriage.

•Interests of carriers > interests of passengers

•–Presumed liability with reversed burden of proof: no requirement to prove fault – negligence

•–Breakable financial limits to carriers’ liability

•–No exclusions of liability or lower financial limits were permitted

4

5

WARSAW objectives

• To understand and interpret the provisions of the Warsaw Convention, it is important to keep in mind the historical background of the convention. As stated above the Convention was made when the aviation industry was still in its infancy. Today, more than 80 years after its birth, the Convention is still of major importance.

• However, some of its provisions are outdated. This system provides an international treaty framework for liability rules governing commercial international aviation travel, and for documentation such as tickets and air waybills. Compensation arrangements are provided for passengers, baggage and cargo affected by aircraft accidents.

6

WARSAW objectives

• The purpose of the Convention was to create a certain degree of uniformity in the rules governing the carrier’s liability in a field where conflict of law would otherwise constitute a major problem. By creating uniformity both the carrier and the passenger are able to foresee the risk and can make arrangements to insure themselves against possible losses.

• The purpose was also to protect, at that time, a financially weak industry and create an incentive for further development of the emerging aviation industry. Egypt joined the Warsaw Convention in 1955.

7

WARSAW objectives

• Concerned the damage awards from a single disaster could ruin an emerging airline, the drafters also perceived a need to protect the economic status of the air carriers and provide a more favorable environment for the industry's growth. In order for international aviation to grow and prosper, airlines needed a stable regime of limited liability.

• Thus, a primary purpose of the Warsaw Convention was to limit the liability of airlines in order to foster the growth of the fledgling commercial airline industry.

• The drafters found such a limit necessary in order to allow air carriers to raise adequate capital to expand operations, to form a basis for the calculation of insurance rates, to limit exposure of governments that owned airlines, and to diminish litigation.

8

9

Conditions of application

•Article 1

•1. This Convention applies to all international carriage of persons, luggage or goods performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.

•2. For the purposes of this Convention the expression "international carriage" means any carriage in which,

10

Conditions of application• A

rticle 1 • a

ccording to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transshipment, are situated either within the territories of two High Contracting Parties,

• or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another Power, even though that Power is not a party to this Convention.

• A carriage without such an agreed stopping place between territories subject to the sovereignty, suzerainty, mandate or authority of the same High Contracting Party is not deemed to be international for the purposes of this Convention.

11

Exceptions of application

• .Article 34

• This Convention does not apply to international carriage by air performed by way of experimental trial by air navigation undertakings with the view to the establishment of a regular line of air navigation, nor does it apply to carriage performed in extraordinary circumstances outside the normal scope of an air carrier's business.

• Article 2

• 1. This Convention applies to carriage performed by the State or by legally constituted public bodies provided it falls within the conditions laid down in Article 1

• 2. This Convention does not apply to carriage performed under the terms of any international postal Convention.

12

1. Air Carriage of persons, goods or baggage

• Apply only to air carriage and not to other means of transportation

• No application in the case of an combined agreement (sea, land)

• The convention does not give a specific definition to the aircraft. We should refer to national Law

• According to Egyptian law the following are considered as aircraft ( ex: helicopters, gliders, and balloons). Hovercraft is excluded

13

•1. Air Carriage of persons, goods or baggage

• The convention applies to each passenger who is on board on the aircraft by virtue of a carriage contract

• The convention does not apply to clandestine travelers

• The convention does not apply to the carrier crew members as they travel on board by virtue of labour contracts, fulfilling their obligations and duties

• The carriage of passengers includes the carriage of their baggage.

• NOT dealing with the liability of carriers to: • –handling agents, caterers, maintenance companies • –lenders and lessors - financing arrangements • –airport authorities e.g. clean-up expenses • –governmental bodies – immigration, customs • –labour or employment law

14

1. Air Carriage of persons, goods or baggage

• The carriage of goods must be according to a contract of carriage, otherwise the convention shall not be applied

• The air mail services are not governed by the rules of Warsaw convention (art.2 para.2)

• The convention does not apply to international carriage performed by way of experimental trial ( art . 34)

• The convention does not apply to carriage performed in extraordinary circumstances, outside the scope of business ( art. 34)

15

Definition of aircraft

•The Chicago convention gives, as well as the Paris convention of 1919, a broad definition of the aircraft as :

• “ any machine that can derive support in the atmosphere from the reactions of the air other than against the air’s surface” .

16

Nationality of aircraft

17

Nationality of aircraft

The principle : Aircraft holds the nationality of the state of

registration Aircraft can not be registered in one more state Privileges such as the monopoly of internal air

transport could be granted in the state in which the aircraft is registered

1. Owned by an Individual = Egyptian 2. Owned in co-property = All Egyptians 3. Owned by a company = registered in Egypt + Partnership= all partnership are Egyptians Partnership by share = joint liable partners are

Egyptians Joint stock = majority of board members +

chairman are Egyptians

18

2. The carriage must be international

According to article 1.2 of the conventions, the carriage is deemed international when ;

1. The two points of departure and destination are in two different states

2. When the two points of departure and destination are situated in a single state but there is an agreed stopping place in a different country.

3. The Warsaw Convention only applies to the air carrier and does not apply to the airplane manufacturer or component part manufacturer which may bear responsibility for the loss. The Warsaw Convention applies only to carrier engaged in "international transportation".

19

3. The air carriage is done for a reward

1. All kinds of reward are accepted : (money or any other form)

2. The convention shall apply regardless the intention to realize profit ( ex; the reward covers only the cost and expenses)

3. Free carriage is not included within the scope of Warsaw convention

4. However, if a free carriage is performed by an air company , the convention shall apply. ( presumption of a reward)

5. The reward should be in all kind of flights ; scheduled, taxi-flight, roundtrip, combined trip

20

21

Evolution

• Even though passenger air travel over the last seventy years statistically remains safer than the automobile trip to the airport, aviation disasters continue to make headlines of international journals, invoking the adaptation of international rules governing the liability issues against air carriers. In fact, most of national laws govern the carrier liability for a passenger's injury or death or loss of goods.

• However, in international carriage if the flight is between two States or within one State with a stop in a foreign country, then the air carrier liability is controlled exclusively by international Conventions.

• These Conventions are known as the Warsaw System and the Montreal Convention. They represent the liability law in international air transport, regulating the relationship between an air carrier and its customer, passenger, consignor or cargo shipper.

22

Evolution • F

rom its inception in the late 1920s, the overriding purpose of private international aviation law has been to create uniformity of law across regions, i.e. all disputes would be resolved uniformly no matter where they arose.

• A unified liability regime was indeed created by the world community in the Warsaw Convention. In the succeeding decades, efforts to update this legal regime have led to division rather than unification, with different nations adhering to differing versions of the Warsaw Convention and its various reformulations.

• Today, the question of which law to apply, an issue of great importance to the resolution of aviation loss and damage disputes is anything but uniform or simple

23

• A number of attempts have been made to amend the Warsaw Convention through amending Protocols. These efforts have been less than successful, as only some States have ratified all amending Protocols, other States have ratified only a select few, while still others have ratified none.

• Today the Warsaw System comprises The Warsaw Convention of 19292, together with the following legal instruments that amend and update the Warsaw Convention:

• The Hague Protocol (1955),

• The Guadalajara Convention (1961),

• The Guatemala City Protocol (1971),

• The 1975 Additional Protocols No’s 1, 2, and 3,

• And Montreal Protocol No. 4 (1975)

24

LIABLITY CONVENTION RATIFICATIONS

• UN Members – 192 States

• The Chicago Convention – 190 States

• The Warsaw Convention – 152 States

• The Hague Protocol – 137 States

• The Guadalajara Convention – 86 States

• Montreal Protocol No. 4 – 57 States

• The Montreal Convention of 1999 – 102 States

25

THE WARSAW CONVENTION OF 1929

• The Warsaw Convention is an international convention which regulates liability for international carriage of persons, luggage or goods performed by aircraft for reward. Originally signed in 1929 by 31 states it entered into force on February 13, 1933.

• The Warsaw Convention differs from most treaties in that it established a private law regime that affects persons rather than nations. Since its inception, 127 additional nations have ratified the original convention, making it the most widely adopted private law treaty in history.

26

THE WARSAW CONVENTION OF 1929• S

igned on 12 October 1929 at Warsaw, Poland, the Warsaw Convention, formally entitled Convention for the Unification of Certain Rules Relating to International Carriage by Air, adopted during the early days of aviation, dominated the field of aviation passenger liability for almost half a century. Prior to the Warsaw Convention, there were no uniform rules of law governing the contract of carriage of air, the rights and obligations of each Party, and the carrier's liability.

• It has evolved into one of the most important instruments of private international law.

27

THE WARSAW CONVENTION OF 1929

• The Warsaw Convention is an international convention which regulates liability for international carriage of persons, luggage or goods performed by aircraft for reward. Originally signed in 1929 by 31 states it entered into force on February 13, 1933.

• The Warsaw Convention differs from most treaties in that it established a private law regime that affects persons rather than nations. Since its inception, 127 additional nations have ratified the original convention, making it the most widely adopted private law treaty in history.

28

Major areas in which Warsaw has achieved uniformity

29

Major areas in which Warsaw has achieved uniformity

• Major areas in which Warsaw has achieved uniformity: (1) the definition of international carriage; (2) the documents of carriage; (3) the regime of liability; and (4) jurisdiction.

• The Warsaw Convention sought to provide a uniform procedure, documentation, and regime of substantive law applicable to claims arising out of international transportation irrespective of the domicile of the passenger or carrier, the place of injury, or the venue of trial.

• The major objective, sought to establish certainty in air litigation by limiting the potential liability of a carrier in accidents that involve personal injury or death to passengers. In exchange for this limit of liability, the Warsaw Convention reversed the burden of proof and created a presumption of liability against the carrier.

Documents of carriage

• uniformity was reached in the format and legal significance of the documents of carriage (Art. 3-16 of the Convention). These provisions are still essentially followed by the airlines today.9 Under the Warsaw Convention the carrier has to deliver two tickets, one for the carriage of the passenger and one for the carriage of the luggage. The Convention contains detailed rules as for the contents of the ticket.

• As for the legal significance of the ticket, Art. 3(2) states that even if no ticket is issued or if the ticket contains an inaccuracy the contract is still valid, and it is still subject to the rules of the Warsaw Convention.

• However, the compliance with the formalities of the ticket has been sanctioned by the loss of limitation of liability by stretching the meaning of the Convention to absurdity.

• Furthermore, Art. 3(2) has proven to be an obstacle to the growing use of electronic data processing. It seems to leave no room for electronic tickets since it states that if the ticket has not been delivered, the carrier cannot avail himself of the provisions which exclude or limit his liability 30

Regime of liability • u

niformity of law was reached in the regime of liability which represents the core subject of the Warsaw Convention. The Convention only governs liability in contract,, where the liability is a strict liability, and contractual liability.

• The Convention governs liability for death, wounding and other bodily injury (Art. 17), destruction, loss of or damage to registered luggage or goods (Art. 18) and liability for damage to passengers, luggage and goods caused by delay (Art. 19). The legal basis of the liability of the carrier is fault/negligence but with a reversed burden of proof (Art. 20(1)).

31

Reversed burden of proof • T

he Warsaw Convention conforms with• t

his “criteria of danger”. The arrangement of the reversed burden of proof lifts a heavy burden from the claimant as it might, otherwise, prove difficult to provide the necessary evidence in a field of such technical complexity as aviation.

• The reversed burden of proof reflects a quid pro quo, in the sense that the burden of proof was placed on the carrier to counterbalance the monetary limit of liability in Art. 22. The carrier is liable according to the limit fixed by the convention. For passengers the limit set out in the Convention is 125,000 francs..

32

33

Limited compensation cellings • P

assengers enjoyed an absolute right to recover up to 125,000 francs Poincare 8 for the death or bodily injury of a passenger unless the airline could demonstrate that it had taken all necessary measures to avoid the injury. However, a plaintiff could seek compensatory damages beyond the limit upon presenting proof of the carrier's "willful misconduct."

• It also places a liability of 250 francs Poincare per kilogram for loss or damage to registered baggage and of cargo, and 5,000 francs Poincare per passenger for loss or damage to unregistered baggage which the passenger takes charge of himself.

34

Jurisdiction • T

he Warsaw Convention creates a limitation period of 2 years within which a claim must be brought; and limits a carrier’s liability to at most. It protects passengers by introducing a two tier liability system and by facilitating the swift recovery of proven damages without the need for lengthy litigation importantly.

• Finally, the possible conflicts of both laws and jurisdictions have been reduced by Art. 28 which provides for four different forum in the territory of one of the High Contracting Parties where the claimant can sue.

• The Warsaw Convention provides that a plaintiff can file a lawsuit, at his discretion, in one of the following venues: (a) the career's principal place of business; (b) the domicile of the carrier; (c) the career's place of business through which the contract was made; and (d) the place of the destination.

Language

•The Convention was drafted under influence of civil law and according to Art. 36. French is the sole official language of the convention.

•It was thought that by looking to one language for guidance in interpretation, the policy of uniformity would be achieved. This has instead proven to be an obstacle in that the court has to interpret the French text each time it has a problem in order to see if it is correctly translated.

35

From Evolution to Evaluation • I

n 1929 when the Warsaw Convention was adopted, it was viewed as being a success, a major contribution to the unification of private international air law. Even today it deserves the uttermost respect as it has been the cornerstone of private international air law for almost a century, despite the rapid changes in the aviation industry and in the costs of living.

• However time has been ripe for many years to replace the entire system with a convention that is up to date, benefiting from the merits of the old system and replacing the learned flaws of that system. The purpose of the Warsaw Convention was to create uniformity of law and to protect a weak and emerging aviation industry.

• However, the Warsaw System no longer fulfills the goal of uniformity, and the aviation industry is no longer a weak and emerging industry that needs any special protection.

36

From Evolution to Evaluation • T

he airlines themselves have agreed to a regime of no limit of liability and with a strict liability up to 100,000 SDR, so there seems to be no reason to preserve any limit of liability in the Convention. As for uniformity of law, the many attempts to update the Convention, both by protocols, private agreements and unilateral actions by states, have all lead to a dis-unification of law, obfuscating which rules actually apply to a given case.

• When it comes to the rules governing the documents of carriage, the convention is outdated, making it impossible to use an electronic record or ticketless travel since the ticket has to be delivered to the passenger (art. 3).

37

From Evolution to Evaluation • T

he convention is authentic only in the French language, which was the universal diplomatic language at the time the Convention was adopted.

• It is not very expedient that the courts have to interpret the French text to see if it is correctly translated each time they has a problem to solve.

• Moreover, some of the terms that are used in the Warsaw Convention have caused enormous difficulties of interpretation and application (such as “accident” and “bodily injury” in art. 17 and “willful misconduct” in art. 25).

38

39

40

The Hague Protocol of 1955, amending the Warsaw Convention of 1929

• The world's economy enjoyed a corresponding growth, increasing the standard of living and the size of damage awards for tort actions, including that involving domestic aviation, The Warsaw damage limitations, however, remained constant, creating increased dissatisfaction.

• Moreover, calculating the dollar value of a human life has never been an easy task. Indeed, controversy ensued almost immediately after the Warsaw Convention placed the $8 300US, value on the life of a passenger.

• States met in The Hague to update the Warsaw Convention's provisions. Protocol to Amend the Warsaw Convention was done at The Hague on 28 September 1955. It came in into force on 1st August 1963. The Hague Protocol doubled the liability ceiling for passenger injury or death to about $16, 600 USD / 250,000 francs Poincare per passenger.

41

The Hague Protocol of 1955, amending the Warsaw Convention of 1929

• Though the Warsaw Convention's liability limits for cargo were retained at 250 francs per kilogram, the Protocol removed most of the exceptions to limited liability for shippers of air freight, and in particular, the "all necessary measures" and "error in piloting" defenses. It simplified the provision on documents of carriage, and explained the concept of "willful misconduct"."

• Although the increase in the limit of liability showed a move to update the Warsaw Convention, the United States at first refused to ratify the treaty as the limits were still deemed too low.

42

The Guadalajara Convention of 1961

• Convention, Supplementary to the Warsaw Convention, was done at Guadalajara on 18th September 1961. National delegates addressing gaps in the Warsaw Convention adopted the Guadalajara Convention. It came in into force on 1st May 1964.

• It distinguishes between the actual and contracting carrier, and provides that both are liable to the passenger, as if they were the contracting carrier for the purposes of the Warsaw Convention. The passenger is entitled to claim against either or both the actual and contracting carrier for bodily injury, loss or damage to baggage and cargo or for delay, but the total liability remained subject to the limits.

43

Guatemala City Protocol of 1971• T

his Protocol introduced the principle of strict liability by deleting the "all necessary measures" of the Warsaw Convention and forced the carrier liable regardless of fault in the case of death or personal injury to passengers.

• Moreover, the Guatemala City Protocol introduced for the first time an additional forum in which claims could be adjudicated, namely, by the court where the passage has his or her domicile of permanent residence. The Guatemala City Protocol would raise the liability limit to 1,500,000 Poincare francs per passenger, even where the carrier engaged in willful misconduct.

• That is, carriers were unable to deny responsibility to compensate passengers where they were without fault. However, as this type of immunity might be considered contrary to public policy in many States, the Guatemala City Protocol failed to get the required number of ratifications and failed.

44

Guatemala City Protocol of 1971

• It also introduced the concept of absolute liability regardless of fault in the case of death or "personal" injury, arguably including mental or emotional injury, so long as the "event" which caused the death or injury took place on board the aircraft or during embarking or disembarking.

• An interesting feature of the Guatemala City Protocol is that although it provides for a limit of about 1,500,000 Poincare francs per passenger, there is also proviso for a domestic addition if a state that is party to the protocol desires to have a higher limit. The Protocol prescribed for an unbreakable liability limit of 1,500,000 francs, imposed absolute or ‘risk’ liability on carriers.

45

The Montreal Protocols (1975)• P

rotocols No’s 1, 2 and 3, done in Montreal on 25 September 1975. The Montreal Protocols emerged in 1975 in the wake of the Guatemala City Protocol. The International Conference on Air Law, gathered under the auspices of ICAO, adopted new amendments to the Warsaw Convention, as amended by the Hague Protocol. Under the new provisions, the carrier is liable for cargo damage, irrespective of fault.

• Another major modification concerns the method of calculating the liability limits by turning from a exclusive gold monetary basis to a dual system, allowing countries that are members of the IMF to base passenger, baggage, and cargo liability on Special Drawing Rights, whereas countries not members of the IMF would declare liability limits in monetary units based on gold. This was done in order to eradicate the problems connected with the hardship of valuing the outdated francs Poincare.

46

The Montreal Protocols (1975)• T

he Montreal Protocols of 1975 would raise the liability limits to 100,000 SDRs for death or injury to a passenger. The Montreal Protocols No’s 1 and 2 did not come into force until 15 February 1996, with the majority of supporting States being European. The Montreal Protocol No. 3 is unlikely to come into force as the US refused to ratify the Guatemala City Protocol.

• Montreal Protocol No 4, done at Montreal on 25 September 1975 Montreal Protocol No. 4 amended the cargo provisions of the Warsaw/Hague regime without touching the passenger provisions. It raised cargo liability limits to some degree. Liability is absolute and unbreakable, unless the consignor makes a ‘special declaration’ informing the carrier of the particular value of the cargo.

47

The Montreal Protocols (1975)•T

he Protocol copies the rules relating to carriers’ liability set out in the Guatemala City Protocol in respect of loss of or damage to cargo, removed the outmoded cargo documentation provision of the Warsaw Convention, thereby facilitating the use of electronic records for international air cargo commerce.

48

Outcome • T

he Warsaw Convention was a visionary and progressive instrument in 1929 but in less than three decades became outdated, particularly with respect to the unrealistically low limits of liability and excessive formalism of the documentation of carriage.

• Only the 1955 Protocol of The Hague and the 1961 Supplementary Convention of Guadalajara effectively introduced some enhancements while the 1971 Guatemala City Protocol and the 1975 Montreal protocols remained in non-existent for a quarter of the century.

49

Outcome • D

espite tough efforts over many years to update the Warsaw System, compensation limits have remained low for victims of air accidents, and the provisions for regulating the movement of passengers, baggage and cargo are now outdated. Some of the protocols, which update the Warsaw Convention, have not been widely adopted. A complex, unwieldy and out of date system for international carriers’ liability has resulted.

• Therefore, due to the recognition of the inadequacies of the Warsaw and the Warsaw-Hague Convention and ICAO's repeated failed attempts to rectify the situation, many States, groups of States, and carriers took unilateral actions and directed their airlines to raise their limits of liability. As such, due to differences in these unilateral actions, the international aviation world finds itself in a confused state due to too many different systems. The unification of law no longer exists.

50

51

PRIVATE CARRIER AGREEMENTS AND UNILATERAL STATE ACTIONS

• Although Article 22(1) of the Warsaw Convention allows the passenger and the carrier, by special contract, to agree to a higher limit of liability, Article 32 states that any special agreements which "infringe the rules laid down by the Convention" are "null and void." Therefore, these unilateral actions are merely attachments to the Warsaw Convention's provisions. Amending the Convention can only be accomplished in conformity with the Vienna Convention on the Law of treaties."

• Accordingly, as none of the following actions replace the Convention, they merely serve as intermediary agreements, which do not constitute a strong legal regime that courts can apply. Confronted with consumer, media, and public opinion, it became difficult to justify the low limits imposed on international air travelers, yet not imposed on travelers on other modes of transportation

52

The Rome Convention of 1952

• The Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface includes the principle of absolute liability of the aircraft operator for damage caused to third parties on the surface but places a limitation on the amount of compensations, expressed in Poincare's gold francs and calculated in relation to the aircraft concerned.

• However, a diplomatic conference gathered in 1978 under ICAO auspices adopted a protocol for the amendment of the Rome Convention. The fundamental characteristic of the protocol is a considerable increase in the limits of liability and the expression of the limits in the Special Drawing Rights of the IMF.

53

The Montreal Agreement (1966)• I

t is important to note that the Montreal Agreement is not a treaty, but an agreement between international air carriers who imposes a "quasi-legal” and principally experimental system of liability that is contractual in nature.

• “Thus Montreal Agreement can be characterized as a private agreement, signed by each airline, relinquishing the Warsaw Convention's liability restrictions on personal injury up to $75,000. It retains the requirement that the claimant proves willful misconduct to recover more than $75,000, and waives the defenses available under Article 20(1). Though not an intergovernmental agreement, convention or treaty, the United States made it legally binding under its regulatory powers over certification of all domestic and foreign carriers serving the United States.

54

The Montreal Agreement (1966)•T

he Agreement applies only to death or personal injury, and not to loss or damage of baggage or cargo. The waiver of the Article 20(1) defenses, which amounts to absolute liability without regard to fault.

•For personal injury, the plaintiff need only prove damages up to the $75,000 limit. Although it intended to be an "interim solution, while waiting for a treaty amendment” it remained the dominant liability regime for about thirty years after its formation.

55

The Japanese Initiative and the IATA Inter carrier Agreements (1995-1996)

• In 1992, the Japanese air carriers asked their government to remove the liability ceiling on negligence litigation in international aviation. The "Japanese initiative" received much attention in aviation litigation groups.

• The initiative for an effective action was not taken by states but by airlines themselves the Japanese initiative was a groundbreaker for acknowledgement that airlines do not need the shield of unrealistically limited liability.

56

IATA Intercarrier Agreement (1996)

• Sixty-seven airlines attended IATA's first session, held in Washington, D.C. The airlines agreed that the Warsaw Convention must be preserved, but accepted that "the existing passenger liability limits for international carriage by air are grossly insufficient in many jurisdictions and should be revised as a matter of urgency".

• It was described as "the most dramatic development in the 66 year history of the Warsaw Convention," the agreements soon became a great success and have been signed by a large number of airlines.

57

58

59

THE MONTREAL CONVENTION (1999)• T

he 1999 Montreal Convention created and signed by representatives of 52 countries at an international conference convened by the International Civil Aviation Organization in Montreal on May 28, 1999, will came into effect on November 4, 2003.

• The Montreal Convention predominates over any other rules, which have applied to International Carriage by Air, which have traditionally been the Warsaw Convention of 1929 and the amendments there to including the Hague Protocol, Montreal Protocols Nos. 1, 2, 3 and 4, the Guadalajara Convention and the IATA Intercarrier Agreements.

60


he purpose of the Montreal Convention is to update and modernize the field of private international air law by taking the best elements from the Warsaw system and from the collective special contracts, and merging them into one single document to achieve uniformity of law and transparency once again. This has been needed for many years.

• The Preamble to the Montreal Convention makes it clear that the Convention is no longer a convention to protect the airlines. It recognizes the importance of protecting the interest of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution.

• No substantive changes has been made regarding the applicability of the Convention. Only does the Convention incorporate the Guadalajara Convention in chapter V.

Problem of uniformity • T

he Convention enters into force upon ratification by 30 states (Art. 53(6)), and it prevails over the whole Warsaw System between States Parties to the Montreal Convention.

• However, if some States that have ratified the Warsaw Convention do not ratify the new Montreal Convention, a problem of uniformity will persist.

• In that regard, the US has apparently reported that it will terminate any Warsaw Treaty relationship with those States that have not ratified the Montreal Convention.

• This measure would facilitate convincing of States to ratify the new Convention

61

62


he Montreal Convention, which applies to all “international transportation” of passengers, baggage and cargo, replaces the various air carrier liability regimes in effect, around the world today with a new uniform set of rules. While a major portion of the Montreal Convention follows the language of the Warsaw Convention, the Montreal Convention makes important changes to the scope and extent of the carrier’s liability, broadens the jurisdictions where the carrier can be sued.

• Removal of Limits of Liability in Death and Bodily Injury Cases The most important article of the Montreal Agreement is Article 21.1, which removes the limitations of liability incorporated in Article 22 of the Warsaw Convention with respect to carrier liability for death or bodily injury of passengers in international air transportation.

63

THE MONTREAL CONVENTION (1999)• A

rticle 21.1 of the Montreal Convention provides that the carrier is liable without proof of fault, in the event of death or bodily injury of a passenger caused by an accident on board the aircraft or during any of the operations of embarking or disembarking, for 100,000 Special Drawing Rights (SDRs) With respect to damages not exceeding 100,000 SDRs, the carrier will not be able to exclude or limit its liability for any cause.

• Where damages are requested in excess of that amount, the carrier is liable for unlimited damages, unless it can prove that the damages were not due to the negligence of the carrier or its agents or that the damage was entirely due to the negligence of another party.

64

THE MONTREAL CONVENTION (1999)• N

o punitive, exemplary or other non-compensatory damages will be recoverable, and the Montreal Convention is the only basis upon which an action for damages sustained in international transportation can be brought.

• While the Montreal Convention eliminates the language of Article 20(1) of the Warsaw Convention that the carrier is not liable if it took “all necessary measures” to prevent the loss, the new language in Article 21.2 of the Montreal Convention effectively provides for absolute liability on the part of the carrier, in the event of an aircraft accident.

65


he Montreal Convention does not purport to prohibit the carrier from seeking recourse against any other person who it believes is responsible for the damage. However, this right may be unenforceable under the laws of various countries where an indemnity or contribution action is precluded where the carrier’s liability is based on contractual rather than tort liability.

• Art. 49 states the mandatory nature of the Convention and has the

• same substance as the Warsaw Convention Art. 32. Any action for damages can only be brought subject to the conditions and limits set out in the Convention as was the case in the Warsaw Convention (Art. 29 in the Montreal Convention). However, to the text of the Warsaw Convention (Art. 24) a few words have been added in an attempt to clarify the exclusiveness of the Convention which had been disputed for years in the US courts

66

THE MONTREAL CONVENTION (1999)

•In the case of airline accidents resulting in death or injury of passengers, the carrier shall, if needed by its national law, make advance payments as required by national law to those persons entitled to claim compensation.

•The Convention provides that such advance payments do not constitute recognition of liability and may be offsetting against any amount subsequently paid as damages by the carrier or, more likely, its insurer.

67


•The Montreal Convention does preserve some of the language of the Warsaw Convention. In order to recover compensation under Article 21 of the Montreal Convention for an accident under Article 17 of the Montreal Convention, the passenger must have sustained a “bodily injury”, a requirement that should preclude recovery, based on numerous decisions interpreting the “bodily injury” language of Article 17 of the Warsaw Convention, for those passengers who have sustained only mental distress or emotional injuries as a result of an accident.

68


he Montreal Convention also maintains the protections granted to the agents or servants of the carrier, inferring they are acting within the scope of their employment, and preserves the two year statute of limitations contained in the Warsaw Convention.

• The Convention furthermore realizes the effect of inflation and permits the limits of liability described in Articles 21, 22 and 23 to be reviewed every five years following the date of entry into the force of the Convention.

• One of the major innovation in the new Convention is Art. 50 which

• provides that the States shall require their carriers to maintain adequate insurance, and that any State Party can require evidence of adequate insurance from carriers that operate into its territories.

69

THE MONTREAL CONVENTION (1999)• A

dditionally, the Montreal Convention allows legal proceeding for damages resulting from the death or injury of a passenger to be initiated in the country, where, at the time of the accident, the passenger had his or her principal and permanent residence, provided that certain conditions are met.

• This additional jurisdiction, otherwise known as the "fifth jurisdiction," supplements the other four available forms previously established under the Warsaw Convention.

• The 5th jurisdiction is not an innovation. Already at the Guatemala City Conference the US insisted on a 5th jurisdiction. In fact, the Montreal Convention just gives back to the claimant the most logical jurisdiction deprived of claimants by the Warsaw Convention.

70


he Montreal Convention also amends, the Warsaw Convention provisions concerning claims for delay, loss of baggage and cargo claims. With respect to delay of passengers or baggage, the airline remains liable. However, the liability limit of $8,300 under the Warsaw Convention for delay of passengers has been lessened to 4,150 SDRs.

• The “all necessary measures” defense remains feasible for delay claims, whether for delay in the transportation of passengers, their baggage, or delay of cargo.

71


•With respect to baggage, the airline’s liability for lost, damaged or destroyed baggage, whether the baggage be checked or unchecked, is limited to the sum of 1,000 SDRs per passenger, unless the passenger has made a special declaration at the time the baggage was handed over to the carrier and paid a additional sum.

•This limit of liability is a modification from the previous baggage liability scheme imposed by the Warsaw Convention, where the liability of the carrier was hypothesized on the weight of the checked baggage.

72


• Article 31 retains notice of claim requirements, which were present in the Warsaw Convention. Claims for damage to baggage must be made within seven days from the receipt of the baggage and claims for delay must be made within 21 days after the baggage has been placed at the disposal of the baggage.

• The Montreal Convention also makes significant changes, which had been largely implemented by Montreal Protocol Nos. 3 and 4, with respect to cargo. The carrier’s liability for lost or damaged of cargo is limited to 17 SDRs per kilo and these limits, as they are under Montreal Protocol No. 4, are unbreakable. Article 22 of the Montreal Convention also provides for proration with respect to loss, damage, destruction or delay of cargo.

73


• While the willful misconduct exception for limited liability is dropped for cargo, and there is unlimited liability for damages sustained by passengers as a consequence of accident or death in international transportation, the only trace of the old Warsaw Convention “willful misconduct” requirement remains in cases involving delay and baggage.

• The limitation on liability for damages caused by delay and for loss, destruction, damage or delay of baggage is not applicable if it is proven that the damage was sustained resulting from an act or omission of the carrier or its agents “done with intent to cause damage or recklessly and with knowledge that the damage would probably result.

74


•The Warsaw Convention was drafted in French and was authentic only in this language. This helped to attain a uniform interpretation of the law because when a legal term was not clear the courts worldwide had to consider the French version of the Warsaw Convention.

•However, the last paragraph of the Montreal Convention states that it was done “in the English, Arabic, Chinese, French, Russian and Spanish languages, all texts being equally authentic”.

75


• Despite the fact that this is a politically correct option that may “satisfy national and language pride”, as English was the working text during the drafting of the Convention and is also the most important language in international aviation, it would have been much better to choose the English text as the only official version in order to facilitate the principal goal of the Convention: uniformity of law across jurisdictions.

• The future will probably show that having six “equally authentic” texts is completely inefficient.

76


• Montreal Convention is considered to be a fair and reasonable compromise that offers the best chance yet to achieve a global solution to the problem of updating the Warsaw System.

• The Montreal Convention introduces a number of improvements, which modernize and strengthen the Warsaw system, including measures that had been proposed previously but not efficiently adopted.

• Most importantly it enhances the international rule for air carrier’s liability by providing a structure of unlimited and more equitable passenger compensation governing injury or death.

77


•A major reform is that it consolidates these features into one complete package that States must either accept or reject. States will no longer be able to ratify some Protocols and not others.

•As more and more States ratify the new Montreal Convention, the Warsaw System will become needless and there will be growing pressure on non-parties to sign on to the new Convention.

78

•The Warsaw Convention has undergone significant changes and reform efforts aimed at modernizing the liability scheme. The traditionally low liability limits have been raised, converted into an international market standard, and tied to inflation.

•The Montreal Convention carries the legacy of the Warsaw Convention by retaining the structure and the concepts established and well practiced in international law over the last seven decades. Clearly, the Montreal Convention represents seventy years of trial and error, with the main thrust for recovery, modernization, and fairness stemming from the actions of the airline industry itself.

MONTREAL VERSUS WARSAW

79

80

COMPEN$ATION HAS ALWAYS BEEN THE PROBLEM• W

arsaw Convention of 1929 Capped liability at $8,300, unless the carrier engaged in willful misconduct or improper documents provided;

• •The Hague Protocol of 1955 Doubled liability to $16,600

• •The Montreal Agreement of 1966 Raised liability to $75,000

• THE MONTREAL CONVENTION OF 1999

• •Incorporating most of the liability provisions of the IATA Intercarrier Agreements, the Convention establishes a two-tier liability system, with strict liability for death or bodily injury up to 100,000 SDRs, and presumptive liability in an unlimited amount;

• •The carrier’s liability may be discounted by the claimant’s negligence or wrongful act;

81

THE MONTREAL CONVENTION OF 1999

• •If the claimant’s damages exceed 100,000 SDRs, the carrier has two defenses: (1) freedom from fault; or (2) the damage was solely caused by a third person;

• •“Punitive, exemplary or other non-compensatory damages” are not recoverable;

• •No provision was made for recovery of emotional damages;

• •Carriers must maintain adequate insurance to cover their liability;

• •The Convention’s liability limits shall be reviewed every five years and adjusted for inflation;

• •The claimant may recover court costs and attorney’s fees if the amount of damages awarded exceeds any written settlement offer made within six months of the accident but before suit is commenced;

• •The Convention establishes a “fifth jurisdiction” (the passenger’s principal and permanent residence) for personal injury or death (but, oddly, not cargo and baggage) actions;

• •Montreal 99 supplants Warsaw and its progeny for States that ratify it.

82

THE MONTREAL CONVENTION OF 1999• T

he Convention incorporates many of the provisions of MP4 relating to cargo;

• Unless special value is declared, loss and damage and delay of baggage results in maximum liability of 1,000 SDRs; destruction, loss, damage, or delay of cargo results in liability capped at 17 SDRs per kilogram; cargo liability ceilings cannot be broken;

• There is no carrier penalty for noncompliance with the new documentation requirements; and

• Arbitration clauses may be included in cargo air waybills.

83

Plaintiff Advantages of M99• N

o proof required of carrier negligence … need only prove the injury resulted from an “accident”

• Strict liability up to 100,000 SDRs for bodily injury or death

• Nearly certain recovery beyond (to the extent of provable damages)

• Ability to file suit in home country

• But . . . No recovery if only damages were emotional, and no recovery of punitive damages.

84

Carrier Defenses• T

he transportation was not “international carriage”• T

he event was not an “accident”• T

he event occurred before embarkation or after disembarkation• T

he damage did not constitute “bodily injury”• T

he plaintiff was contributory negligent (liability discounted by π’s fault)

• Above 100,000 SDRs, the carrier was not negligent, or the damage was “solely” caused by a third party.

85

The Warsaw Regime, or M99 Apply if:

• The place of departure and place of destination are:

• both in "Warsaw System" or M99 States

• or

• in the same "Warsaw System" or M99 State with an agreed stopping place in another State

• And both States have ratified a common liability Convention or Protocol.

86

Which Legal Regime Applies?• T

he original Warsaw Convention of 1929, unamended;• T

he Warsaw Convention as amended by the Hague Protocol of 1955;

• The Warsaw Convention as amended by Montreal Protocol No. 4 (MP4) of 1975;

• The Montreal Convention of 1999, or

• Domestic law, if it is deemed that the transportation falls outside the conventional international law regime, or if the two relevant States have failed to ratify the same liability convention.

87

Chubb & Son v. Asiana Airlines• T

he US had ratified the Warsaw Convention but not the Hague Protocol of 1955.

• South Korea had ratified the Hague Protocol, but not the Warsaw Convention.

• Because the US and South Korea were “not in treaty relations with regard to the international carriage of goods by air”, federal subject matter jurisdiction was deemed not to exist. The court concluded that “no precedent in international law allows the creation of a separate treaty based on separate adherence by two States to different versions of a treaty, and it is not for the judiciary to alter, amend, or create an agreement between the United States and other States.”

88

THE IMPACT OF CHUBB• C

hubb holds that the nation of the origin and destination of the passenger’s itinerary must have ratified the identical treaty. Korea and the U.S. were held to have ratified different treaties – the Hague Protocol and the Warsaw Convention, respectively. Hence, no liability convention was common to both States.

• The U.S. ratified Montreal Protocol No. 4, which entered into force for the United States on March 4, 1999. Though it principally addresses cargo issues, it brings the US under the Hague Protocol of 1955. Just to be sure, the U.S. separately ratified the Hague Protocol, nearly half a century after it was drafted.

• Chubb also became a major catalyst for U.S. Senate ratification of the Montreal Convention of 1999, which entered into force on November 4, 2003.

89

Course plan

90

CHAPTER 2The framework of air carrier liability

91

SUBJECT MATTER LIABLITY

92

ACCIDENT, INJURY, CAUSATION & LOCATION •T

he Montreal Convention of 1999 made no significant change to Article 17 of the Warsaw Convention:

•“The carrier shall be 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.”

93


he Montreal Convention of 1999 made no significant change to Article 17 of the Warsaw Convention:

•“The carrier shall be 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.”

ACCIDENT, INJURY, CAUSATION & LOCATION

• The dictionary defines “accident” as “a happening that is not expected, foreseen, or intended”, or “an unpleasant and unintended happening, sometimes resulting from negligence, that results in injury, loss, damage, etc.”.

Issues arising under Article 17:

• What kind of "accident" must have occurred?

• What types of injuries are considered by the term "damage sustained in the event of death or bodily injury"?

94

3 STEPS TEST

95

EVENTS THAT CAN BE

96

97

Inherent Risks of Air Transportation

• Most cases, though, have held that if the event is a usual and expected operation of the aircraft, then no accident has occurred. Similarly, courts have relied on the Saks definition, that where the injury results from the passenger’s own internal reaction to the usual, normal, and expected operations of the aircraft, it is not caused by an accident.

• For instance, no accident has occurred if a passenger trips over another passengers shoes and gets hurt, because taking of your shoes during the flight is among the usual and expected operations of the aircraft. Similarly, an allergic reaction to insecticide that is sprayed on the aircraft is not an accident, because it is part of the usual and expected operations of the aircraft and because the allergic reaction is something internal to the passenger.

•Craig v. Compagnie Nationale Air France (1994), (9th Circ. 1994).

•Capacchione v. Quantas Airways (1996)

98

Inherent Risks of Air Transportation• I

t is clear that the carrier is liable for the inherent risks of air travel, as the Warsaw drafters wished to create a system of liability rules that would cover all the hazards of air travel.

• The carrier is thought to be in a better position than the passenger to control the risks of air travel, and if it fails to do so, then an accident has occurred.

• That the carrier is liable for the inherent risks of air travel also fits into the Saks definition of an accident in that if the event is not a “usual an expected operation of the aircraft” it is an accident.

99


•Standard examples of risks in air travel are an unusual drop of air pressure in the cabin or an unusually high air turbulence. These events have to be unusual, though. In the Saks case a passenger claimed compensation from the airline because she had become permanently deaf on her left ear during the flight.

•The court held that her injury was not caused by an accident within the meaning of Art. 17, the evidence indicating that the pressurization system had operated in a normal manner.

100


• Today terrorism, bomb threats and hijackings are considered to be among the inherent risks of air travel. In Salerno v. PanAm84 a passenger achieved compensation for an abortion caused by a bomb threat.

• The mere threat was considered to be an accident under Art. 17. In Husserl v. Swiss Air Transport Co, the court stated, “Since 1929, the risks of aviation have changed dramatically in ways unforeseeable by the Warsaw framers. Air travel hazards, once limited to aerial disasters, have unhappily come to include the sort of terrorism exemplified by the Athens attack.”

• The court held that hijacking was an accident covered by Art. 17. This line has been followed in the cases since.

•Salerno v. Pan American World Airways (1985).

•85 Husserl v. Swiss Air Transport Company (1975). 101

In-Flight Illnesses• T

he courts have had difficulties distinguishing the damage from the accident in cases of in-flight illnesses. Some courts have recognized that an illness caused by an event that is internal to the passenger may be caused by an accident if it becomes aggravated by negligent failure to treat the illness. Other courts have rejected this view.

• Krys v. Lufthansa German Airlines (1997).

• • I

n the Saks89 case the court expressed the following view: “… Article 17 refers to an accident which caused the passenger’s injury, and not to an accident which is the passenger’s injury.

• The text thus implies that, however ‘accident’ is defined, it is the cause of the injury that must satisfy the definition rather than the occurrence of the injury alone.”

102

In-Flight Illnesses : Does the airline crew have to be doctors at the same time?

• The cabin crew have been presented with somewhat of a dilemma. The reasoning by some courts has been that if an illness is aggravated by the crew’s attempt to help the passenger, that aggravation constitutes an accident, while if the crew did nothing to try to help the passenger an accident has not occurred.

• Under the logic of Fischer v. Northwest Airlines an accident may be said to have occurred if an airline carries and uses a cardioverter incorrectly (s a small battery-powered electrical impulse generator which is implanted in patients who are at risk of sudden cardiac death).

• However, if the airline does not carry a cardioverter at all, an accident might not have occurred. This leads to an undesirable result as it does not promote the providing of help to a passenger in need. One court has taken a step further and come to the conclusion that failure to provide adequate medical care to a passenger undergoing a heart attack was an accident.

103

Passenger-to-Passenger Interactions• M

ost US courts have, in accordance with this statement, found that carriers are not liable for one passenger’s assault on the other passenger, because these interactions are not part of the normal operations of the aircraft and are therefore not covered by the word “accident” under Art. 17. For instance, in . Price v. British Airways the court held that one passenger’s fist fight with another passenger was not an “accident”, and the carrier was therefore not liable for the damages.

• Not all courts are of the opinion that only inherent risks of air travel are covered by “accident” in Art. 17. In Barratt v. Trinidad & Tobago Airways Corp.96 the court stated that the definition in the Saks case is in no way limited to those injuries resulting from dangers exclusive to aviation, and that neither does Art. 17

104

Passenger-to-Passenger Interactions

•However, many cases suggest that passenger-to passenger assaults, which are not themselves accidents, may by the act or omission of the crew become an accident. An example is Tsevas v. Delta Airlines, Inc., where a drunken passenger molested a woman sitting next to him.

•The court held that this occurrence constituted an accident by virtue of the cabin crew’s failure to reseat the woman after she complained about this behavior, combined with the crew’s continuous serving of alcohol to the man after the complaint.

105

Passenger-to-Passenger Interactions•I

N united states district court in wallace v. korean air in this case a woman awoke to find that

the passenger seated adjacent to her had harassed her she complained to a crew member

who immediately reassigned her to a new seat. the court held that no accident had

occurred.

•T

he reasoning was that there was no act or omission by the aircraft or airline personnel

representing a departure from the normal, expected operation of a flight, and that,

moreover, sexual molestation is not a risk characteristic to air travel.

106

WHAT IS AN ACCIDENT

107

108

• Air France v. Saks

• Facts: a passenger lost her hearing in one ear after a routine depressurization of an Air France aircraft landing normally at Los Angeles.

• The definition of an accident under Article 17 should be flexibly applied after assessing all the circumstances surrounding the passenger's injuries;

• The “event or happening” that caused the passenger's injury must be abnormal, "unexpected or unusual";

• The event must be "external to the passenger", and not the passenger's own "internal reaction" to normal flight operations; and

• Where the evidence is contradictory, the trier of fact must determine whether an accident, so defined, has occurred.

• in Saks, the U.S. Supreme Court noted that liability extends under Article 17 "only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger. . ."

109

•DDeep Vein Thrombosis and Air Travel Group eep Vein Thrombosis and Air Travel Group LitigationLitigation, The Master of Rolls of England’s Court of Appeal concluded, “I cannot see, however, how inaction itself can ever properly be described as an accident. It is not an event; it is a non-event. Inaction is the antithesis of an accident.”

•Qantas Ltd. v. Povey The appellate division of the Supreme Court of Victoria, Australia concluded that “a failure to do something . . . cannot be characterized as an event or happening . . . .” The court went on to opinion that a pilot’s failure to drop the landing gear would not constitute an Article 17 accident, but the resulting crash of the aircraft would.

110

• Olympic Airways v. Husain

• Recovery allowed for the death of an asthma-suffering passenger exposed to second-hand smoke.

• The refusal of a flight attendant to assist a passenger who requested assistance constituted “an unexpected or unusual event or happening” under Saks.

• Both the passenger’s exposure to the second-hand smoke, and the refusal of the flight attendant to assist the passenger, contributed to Husain’s death.

• Inaction can be an accident irrespective of the conclusions of intermediate appellate courts in England and Australia.

• The Guatemala City Protocol would have substituted the word “event” for the narrower term, “accident”.

• But it has received only 7 ratifications, well short of the 30 needed to enter into force.

111

The Australian High Court Povey v. Qantas Airways

McHugh: “With great respect for the U.S. Supreme Court . . . the Saks definition of “accident” does not exhaustively define the scope of Art. 17. . . . In Saks, it would have made no sense for the Court to describe the operation of the pressurization as “a happening that is not . . . intended.” The system operated independently of any actor who could have formed an intention to do an act that had consequences that were not intended or expected. •“With great respect to the Supreme Court in Saks, it went too far in insisting that the harm-causing occurrence must always be “caused by an unexpected or unusual event or happening that is external to the passenger.”

112

The Australian High Court Povey v. Qantas Airways • “

An omission may . . . constitute an ‘accident’ when it is part of or associated with an action or statement. . . . But a bare omission to do something cannot constitute an accident.”

• Kirby: “In ordinary parlance, the absence of a happening, mishap or event may be an ‘occurrence’. However, depending on the context, it will not usually qualify as an ‘accident’.”

• Callihan: “mere inaction could not constitute an event or an accident.”

113

Hence, the U.S. Supreme Court’s reliance on the Saks’ definition of “accident” in Husain constituted imperfect jurisprudential methodology. Instead of asking whether the inaction of a flight attendant was an “unusual or unexpected event of happening external to the passenger”, the Court instead should have asked whether the flight attendant’s inaction was an “accident.” •Lord Scott observed that two requirements identified in Saks – that an event that is no more than the normal operation of the aircraft in normal conditions is not an “accident”, and that to be an accident, the event that caused the damage must be external to the passenger – ruled out recovery for DVT.

114

• Both DVT and PTSD cases generally have not fared well in the courts, but on sharply different grounds. In DVT cases, airlines have prevailed because there was no “accident”. In PTSD cases, airlines have prevailed where there was no physical injury.

• But note the sharp divisions between the analytical approaches of the highest courts in the United States, the United Kingdom and Australia. The U.S. courts ask whether an injury occurring on board a flight constitutes an “unusual or unexpected event or happening external to the passenger.”

• The U.K. and Australian Courts ask whether the injury was caused by an “accident.” While the U.S. Supreme Court concludes that inaction can constitute an “unexpected event or happening”, the U.K. and Australian courts conclude that inaction cannot constitute an “accident.”

115

116

ACCIDENT, INJURY, CAUSATION & LOCATION • E

motional Damages • T

he issue of whether emotional damages are recoverable has long troubled common law courts. The jurisprudence on this issue reflects several major concerns:

• (1) that emotional harm can be feigned, or imagined; and

• (2) some harm is the price we pay for living in an industrial society;

• (3) emotional damages are difficult to measure; and

• (4) unconstrained liability could impede industrial and economic growth.

117


urning now to Private International Air Law, courts that have examined the travaux preparatiores of the Warsaw Convention of 1929 have concluded that there was no discussion of whether recovery for emotional damages was contemplated by its drafters.

•They also have concluded that recovery for emotional damages was not permitted by most civil or common law jurisdictions prior to 1929.

118

Eastern Airlines v. Floyd • S

everal passengers claimed to have suffered mental distress when their aircraft, bound for the Bahamas, lost power in all three engines and began a sharp and terrifying descent. The flight crew informed the passengers that it would be necessary to ditch the plane in the ocean. Almost miraculously, the pilots managed to restart the engines and land the jet safely back at Miami International Airport.

• The U.S. Supreme Court held that Article 17 does not allow recovery for purely mental injuries. This conclusion was based on the French translation (interpreting "lesion corporelle" to mean "bodily injury"),and on the primary purpose of the Warsaw Convention -- limiting liability in order to foster growth of the infant airline industry.

119

Eastern Airlines v. Floyd • W

riting for the majority, Justice Marshall concluded:

• “The narrower reading of 'lesion corporelle' also is consistent with the primary purpose of the contracting parties to the Convention: limiting the liability of air carriers in order to foster the growth of the fledgling commercial aviation industry. . . . Whatever may be the current view among Convention signatories, in 1929 the parties were more concerned with protecting air carriers and fostering a new industry than providing full recovery to injured passengers, and we read 'lesion corporelle' in a way that respects that legislative choice.”

120

Emotional damage The explicit imprecision and ambivalence of the Supreme Court’s dictum in Floyd -- “we express no view as to whether passengers can recover for mental injuries that are accompanied by physical injuries” -- left the door ajar for all sorts of litigation. •For example, to recover under Article 17, need the emotional injury result from the physical harm, or may the physical harm result from the emotional injury? In other words, may the physical injury simply be the physical manifestation of emotional harm (e.g., what if plaintiff was not physically touched, but suffered hives, diarrhea, or hair loss because of her fright), or must there instead be some direct physical contact which produces a bruise, lesion, or broken bones causing emotional harm?

121

US Federal District Court in Jack v. Trans World Airlines

• Does Warsaw cover a passenger who suffers emotional distress accompanied by bodily injury? Jack explored the issue identified several alternatives:

• No recovery allowed for emotional distress;

• Recovery allowed for all emotional distress, so long as bodily injury occurs; and

• Only emotional distress flowing from the bodily injury is recoverable.

• While agreeing that mental injuries flowing from physical injuries are recoverable, several U.S. Courts of Appeals have disagreed with the dicta in Jack, holding that a plaintiff may not recover under Article 17 for physical manifestation of emotional harm.

122

The House of Lords in Morris v. KLM • W

hile agreeing that pain caused by physical injury is recoverable, also Lord Steyn, “would hold that if a relevant accident causes mental injury or illness which in turn causes adverse physical symptoms, such as strokes, miscarriages or peptic ulcers, the threshold requirement of bodily injury is satisfied.”

• The issue was whether a 16-year old girl could recover for the clinical depression she suffered after being fondled by another passenger aboard a flight from Kuala Lumpur-Amsterdam. Lord Nicholls wrote, “The expression ‘bodily injury’ or ‘lesion corporelle’, in article 17 means, simply, injury to the passenger’s body.” However, he observed that the brain too, is part of the body, and sometimes subject to injury; the question as to whether the brain has suffered an injury is a question of medical evidence.

123

The House of Lords in Morris v. KLM

The inference is that when medical science has advanced to the level that it can point to an injury in the brain causing clinical depression, then such damages may be recoverable. •Though Lord Steyn concluded that Article 17 does not allow one to recovery for emotional damages absent physical injury, he would allow recovery under two circumstances: (1) pain and suffering resulting from physical injury; and (2) in cases where there is physical manifestation of emotional harm: •“if a relevant accident causes mental injury or illness which in turn causes adverse physical symptoms, such as strokes, miscarriages or peptic ulcers, the threshold requirement of bodily injury under the Convention is satisfied.”

124

US Court of Appeals in Ehrlich v. American Airlines •I

n an exhaustive review of the negotiating history of the question of potential recovery of emotional damages in the Montreal Convention, the court concluded that there was no consensus or common understanding among the delegates on the issue of whether, and under what circumstances, recovery should be allowed for mental damages.

125

US Court of Appeals in Ehrlich v. American Airlines

• Three U.S. Circuit Courts of Appeals in Terrafranca, Lloyd, and Carmeu have held that physical manifestation of emotional harm is not recoverable under Article 17, while the U.K. House of Lords in Morris v. KLM concluded that they were. Though the U.S. Supreme Court has not yet had occasion to rule on the issue, the stage is set for jurisprudential confrontation yet again between the Titans of Law.

• The U.S. delegate at the conference erroneously asserted that the state of Article 17 jurisprudence in U.S. courts at the time allowed recovery for mental injuries even when such injuries were not caused by physical injuries, and sought to include legislative history to the effect that M99 was not intended to disturb that jurisprudence. The court held that those views were wrong, and that prevailing American jurisprudence required that, to recover for emotional damages, those emotional damages must have been caused by physical injury.

126

Conclusion

• •No recovery allowed for emotional distress;

• •Recovery allowed for all emotional distress, so long as bodily injury occurs;

• •Emotional distress allowed as damages for bodily injury, but distress may include distress about the accident; and

• •Only emotional distress flowing from the bodily injury is recoverable. Jack v. Trans World Airlines, embraced the fourth alternative, and has been widely followed.

127

Conclusion

• Issues of what constitutes an “accident” and under what circumstances emotional damages are recoverable under Article 17 have proceeded under different jurisprudential paths in the U.S., U.K. and Australia.

• That the highest courts in all three of these influential jurisdictions have disagreed so fundamentally, is troubling.

• This Clash of the Titans does not square well with a Convention intended for the Unification of Certain Rules for International Carriage by Air.

When the accident should take place?

128

When the accident should take place?

129

When must the Accident Take Place?

• the time period for the carrier’s liability is limited to accidents taking place on board the aircraft or in the course of embarking or disembarking. It is the injured person who has to prove that the accident took place during this time period.

• The exact distinction of the time period is not made clear in Art. 17, but it is generally accepted that the liability begins when the passenger is put in the care of an employee of the carrier and ends when the passenger enters the arrival hall at the point of destination.

130

On Board the Aircraft• I

f a passenger suffers injuries caused by an accident which took place during the flight, the damage is covered by Art. 17. The same is true if the accident happens before take-off or after landing, while the passenger is on board the aircraft. However, the carrier is also liable if the accident took place on board the aircraft but without any direct connection to the flight.

• If a passenger suffers injuries caused by an accident which took place during the flight, the damage is covered by Art. 17. The same is true if the accident happens before take-off or after landing, while the passenger is on board the aircraft. However, the carrier is also liable if the accident took place on board the aircraft but without any direct connection to the flight.

131

In Herman v. TWA (1972)•a

n aircraft was hijacked, diverted to the Middle East and forced to land in the desert near Amman, Jordan. For six days the passenger and crew members were held captive on or near the aircraft, whereupon they were taken to a hotel and the following day released.

•The airline argued that it was not liable because the damage was caused while the aircraft was used as a detention camp after the flight had come to an end.

•The court refused the argument and stated that the events together made one continued accident.

132

In Husserl v. Swiss Air Transport Company1975

•The court stated that the drafters of the Convention undoubtedly assumed that “on board the aircraft” meant from the time of embarkation at the place of origin to the disembarkation at the scheduled place of destination.

•The court further stated that it would be extremely difficult to distinguish between the injuries caused by an accident on board the aircraft and the injuries caused by events not taking place on board the aircraft.

133

In the Course of Embarking or Disembarking

134

This three-part test was first set

down in Day v. TWA 1975

135

Day v. Trans World Airlines• W

hat does this phrase mean: in the course of any of the operations of embarking or disembarking?

• 1. What was the activity of the passengers at the time of the accident;

• 2. What control or restrictions was placed on their movement by the carrier;

• 3. What was the imminence of their actual boarding; and

• 4. What was the physical proximity of the passengers to the gate?

Day v. TWA 1975• I

t has been argued that Art. 17 was not meant to cover damages caused by accidents in the terminal building, and furthermore, that it was meant to cover only the inherent risks of aviation.

• However, the Warsaw drafters wanted to create a system of liability that would cover all hazards of air travel. A rigid location-based rule would not adequately serve that purpose. The risks of air travel do commence when the air carrier takes control over the passengers, and furthermore, it is at this stage that the air carrier starts fulfilling his obligations according to the contract.

• It therefore seems reasonable to focus on the control of the carrier when determining the time period of the air carrier’s liability.

136

In Evangelinos v. TWA• T

he case was about a terrorist attack which took place while airline passengers were assembled in an airport transit lounge to undergo the physical and handbag search prior to boarding the flight. The court found that the passengers were in the course of embarking, because the air carrier had begun to perform its obligations as carrier, and, by taking control of the passengers, had assumed responsibility for their protection. The place of the accident is thus only one of the factors to be considered.

• The court stated that in determining if the accident took place in course of embarking or disembarking, three factors are primarily relevant, “location of the accident, activity in which the injured person was engaged, and control by defendant of such injured person at location and during the activity taking place at the time of the accident.”

• The court further stated that “control remains at least equally as important a factor as location and activity but is also integral factor in evaluating both location and activity”. 137

In Air-Inter v. Sage (1976)• T

aken from among cases decided by French courts, the court came to the conclusion that the passenger was not in the course of embarking.

• A passenger slipped and fell in an airport entrance hall because of whisky spilt on the ground by a previous traveler.

• As the entrance hall is a public place beyond the control of the carrier, the process of embarkation was not considered to have commenced.

138

MacDonald v. Air Canada (1971)• t

reated the word disembarkation. The court declined to interpret Art. 17 as covering an elderly passenger who fell while standing near the baggage “pickup” area waiting for her daughter to recover her luggage.

• Mrs. MacDonald was not acting under the direction of the airlines since she was free to move about the terminal, neither was she performing an act required for embarkation or disembarkation.

139

Moses v. Air Afrique (2000)• T

he court referred to the three part test (activity, location and control) set down in Day v. TWA and stated that passengers are not in the course of disembarking when they are injured in the public areas of transport terminals, and similarly that they have finished disembarking after clearing immigration, on their way to or already in the baggage claim areas.

• A passenger who was assaulted by Air Afrique personnel in the baggage claim area did thus not have any cause of action under Art. 17.

140

141


142

Strategies for the cargo Liability •T

HE PLAINTIFF’S CASE: Strategies for Piercing the Liability Ceiling

•1.The Transportation Was Not An International Movement

•2.The Movement Was Not Transportation By Air

•3.There Is No Common Treaty In Force

•4.The Air Waybill Was Deficient

•5.The Baggage Claim Check Was Deficient

•6.The Carrier Engaged in Willful Misconduct

•THE DEFENDANT’S CASE :

•1.The Plaintiff Failed to File a Timely Claim or Suit

•2.The Plaintiff Was Contributory Negligent

•3.The Carrier Took “All Necessary Measures” to Avoid the Loss, or It Was Impossible to Do So

•4.The Loss or Damage Was Caused by a “Common Law” Exception to Liability

143

THE PLAINTIFF’S CASE: Strategies for Piercing the Liability Ceiling

•1.The Transportation Was Not An International Movement

•2.The Movement Was Not Transportation By Air

•3.There Is No Common Treaty In Force

•4.The Air Waybill Was Deficient

•5.The Baggage Claim Check Was Deficient

•6.The Carrier Engaged in Wilfull Misconduct

144

1- The Transportation Was Not International Carriage

•The Warsaw Convention does not apply unless the contract of carriage designates the place of departure and place of destination as situated in the territory of two contracting states (“High Contracting Parties”),

•or

•within a single contracting state if there is an agreed stopping place within the territory of another state.

145

2- The Movement Was Not Transportation By Air • W

arsaw Convention, Art. 18(3): • “

The period of transportation by air shall not extend to any transportation by land, by sea, or by river performed outside an airport. If, however, such transportation takes place in the performance of a contract for transportation by air, for the purpose of loading, delivery or transshipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during transportation by air.”

• Victoria Sales Corp. v. Emery Air Freight (2nd Cir. 1990):

• “All the parties agree that the loss of the . . . shipment at Emery’s warehouse, located near but nonetheless outside the boundaries of Kennedy Airport. It would appear, therefore, that the plain language of Article 18 would exclude the loss from the scope of the Warsaw Convention.”

146

2- The Movement Was Not Transportation By Air •U

nder Art. 18, Warsaw does not apply unless the occurrence that caused the damage took place during “carriage by air” - while the cargo was:

•in charge of the carrier

•and either

•on board an aircraft

•or

•at an airport

•or

•Pursuant to loading, delivery or transshipment under a contract of carriage by air, damage is presumed to have occurred during air transportation, subject to proof to the contrary.

147

The Montreal Convention of 1999 • U

nder M99, arriage by air“ applies when the cargo is in the charge of the carrier.

• if cargo is damaged or lost while loaded, delivered or transshipped outside the airport, but subject to a contract for carriage by air, it is presumed to be carraige by air.

• M99 also applies if the carrier substitutes another mode of transportation, even without consignor‘s consent.

• Moreover, under Article 38, in the case of intermodal transportation (“combined carriage”), a clause can be inserted into the contract of carriage making the Convention applicable to the surface movements.

148

3- There Is No Common Treaty In Force

•Chubb & Son v. Asiana Airlines (2nd Cir. 2000):

•“no precedent in international law allows the creation of a separate treaty based on separate adherence by two States to different versions of a treaty, and it is not for the judiciary to alter, amend, or create an agreement between the United States and other States.”

149

4- The Air Waybill (“Air Consignment Note”) Was Deficient

• The Warsaw Convention was heavily influenced by the pre-existing rules of maritime carriage. The Warsaw Convention, Art. 8, includes 17 specific requirements, ten of which are mandatory. Under Art. 9 failure to include any of the ten mandatory requirements results in the carrier losing its liability ceiling:

•• Place and date of execution;

•• Place of departure and destination;

•• Agreed stopping places;

•• Name and address of consignor;

•• Name and address of the first carrier;

•• Name and address of the consignee;

•• Nature of the goods;

•• Number of packages;

•• Weight, quantity and volume or dimensions of the goods;

•• Statement that liability is governed by Warsaw.

150

The Hague Protocol • H

ague amended Art. 8 to reduce the number of items to be included on an air waybill to three:

• 1.Place of departure and destination;

• 2.Agreed stopping place in another State where the origin and destination are within a single State; and

• 3.The Warsaw Convention governs liability.

• The Hague Protocol simplified the documentary requirements.

• The liability ceiling could only be breached under two circumstances:

• 1.No air waybill had been made out, or

• 2.The waybill failed to give notice that liability could be governed by the Warsaw Convention.

• Montreal 99, Article 5 provides that the air waybill or cargo receipt “shall” include:

• 1. the place of departure and destination;

• 2. the agreed stopping place if outside the State of a domestic shipment; and

• 3. the weight of the consignment.

151

Evolving Jurisprudence • T

hough early jurisprudence forgave nonprejudicial omissions, particularly where the consignor was a commercial entity, recent cases have given Warsaw a strict construction.

• Chan v. Korean Airlines, Ltd., 490 U.S. 122 (1989):

• “We must thus be governed by the text -- solemnly adopted by the governments of many separate nations . . . . [W]here the text is clear . . . we have no power to insert an amendment.”

• Fujitsu Ltd. v. Federal Express (2nd Cir. 2001):

• “the omission of any required item from the air waybill . . . will result in the loss of limited liability regardless of the commercial significance of the omission.”

152

But, these documentary requirements have been emasculated by Montreal Protocol No. 4, and by M99.

• The mandatory nature of documentation requirements has been eliminated.

• Art. 3(5) for passengers and baggage, and Art. 9 for air cargo, provide:

• “Non-compliance with . . . [the foregoing paragraph] shall not affect the existence or the validity of the contract of carriage, which shall, nonetheless , be subject to the rules of this Convention including those relating to limitation of liability.”

• Further, under MP4 and M99 consignors may use simplified electronic records to facilitate shipments.

153

•Montreal 99, Article 11 provides that the air waybill or cargo receipt is prima facie evidence of :

•the contract of carriage,

•the number of packages,

•the weight of the shipment,

•and the apparent condition of the cargo.

•Since under Article 22 liability is determined by the weight of the shipment (17 SDRs per kilogram), unless a special declaration of value was made at origin and an additional sum paid, the consignor is motivated to specify the weight.

•Moreover, since the carriage could be subjected to Warsaw Regime rules on liability, the carrier has an incentive to follow its particulars in the air waybill.

154

Montreal 99, Article 10

•The consignor must indemnify the carrier for damages suffered by it by reason of the irregularity, incorrectness of incompleteness of particulars or statements provided by the consignor.

•The carrier must indemnify the consignor for damages suffered by it by reason of the irregularity, incorrectness of incompleteness of particulars or statements provided by the carrier.

•Hence, misstatements on the air waybill or customs documents should be avoided.

155

5- The Baggage Claim Check Was Deficient • A

rticle 4 of Warsaw provided that the liability ceiling could be broken if: The carrier failed to deliver a luggage ticket, or If the ticket fails to include one of the following three particulars:

• 1.The number of the passenger ticket;

• 2.Number and weight of the packages; or

• 3.That carriage is subject to the liability rules of Warsaw.

• The Hague Protocol

• Hague reduced to two, the ways in which the liability ceiling could be pierced:

• 1.Failure to deliver a baggage check; or

• 2.The failure of the baggage check to include a notice that Warsaw applies and may limit liability.

156

Chan v. Korean Airlines (U.S. 1989): • “

We must thus be governed by the text -- solemnly adopted by the governments of many separate States . . . where the text is clear . . . we have no power to insert an amendment.”

• Ergo: strict and narrow construction of Warsaw’s requirements.

• Article 3(5) of M99:

• “Non-compliance … shall not affect the existence or the validity of the contract of carriage, which shall, nonetheless, be subject to . . . this Convention including those [rules] relating to limitation of liability.”

157

6-The Carrier Engaged in Wilful Misconduct

•Defined in the Hague Protocol as an act or omission of the carrier ot its servants or agents acting within the scope of employment with intent to cause damage or with reckless disregard for its consequences.

•Bayer Corp. v. British Airways (4th Cir. 2000): “On a mens rea spectrum from negligence to intent, [the wilful misconduct] standard is very close to the intent end. Negligence will not suffice, nor even recklessness judged objectively.”

158

Willful Misconduct •T

he Warsaw Convention: •N

o limit on liability where the damage is caused by the carrier’s wilful misconduct or such default as is considered the equivalent of wilful misconduct.

•The Hague Protocol:

•No limit on liability where the damage resulted from an act or omission of the carrier with intent to cause damage, or done recklessly with knowledge that damage would probably result.

•M99:

•Irrelevant for cargo, but relevant for passenger delay, or destruction or loss of baggage

159

THE DEFENDANT’S « air carrier »CASE

•1

.The Plaintiff Failed to File a Timely Claim or Suit

•2

.The Plaintiff Was Contributorily Negligent

•3

.The Carrier Took “All Necessary Measures” to Avoid the

Loss, or It Was Impossible to Do So

•4

.The Loss or Damage Was Caused by a “Common Law”

Exception to Liability 160

1.The Plaintiff Failed to File a Timely Claim or Suit

•Damaged Baggage: 3 days

•Damaged Goods: 7 days

•Delayed Baggage or Goods: 14 days

•Statute of Limitations: 2 years

•TIME LIMITS FOR FILING NOTICE ON CARGO

• WARSAW HAGUE, MP4 & M99

•DAMAGE 7 DAYS 14 DAYS

•DELAY 14 DAYS 21 DAYS

•LOSS NONE NONE

•Time Limits for Bringing Suit

•Suit must be commenced within 2 years:

•from the date of arrival at destination,

•from the date the aircraft should have arrived, or

•from the date the transportation stopped.

161

• 2- The Plaintiff Was Contributorily Negligent Article 21 of Warsaw: “If the carrier proves that the damage was caused by or contributed to by the negligence of the injured person the Court may . . . exonerate the carrier wholly or partly from his liability.”

• A similar provision was included under Art. 20 of M99:

• “If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation . . . The carrier shall be wholly or partly exonerated from its liability . . . .”

• Hence, comparative fault principles apply.

• 3- The Carrier Took “All Necessary Measures” To Avoid the Loss, or It Was Impossible to Do So

•MP4 and Art. 19 of the Montreal Convention of 1999 reaffirm the defense for baggage and delay claims,

•But eliminate the defense for cargo. 162

4- The Loss or Damage Was Caused By a “Common Law” Exception to Liability

• MP4 and Art. 18 of the Montreal 1999 exonerate the carrier from liability if it proves the destruction, loss or damage of the cargo resulted from:

• 1. an inherent defect, quality or vice of the cargo,

• 2. defective packing by someone other than the carrier,

• 3. an act of war or armed conflict, or

• 4. an act of the public authority in connection with the transportation of the cargo.

• Note: the common law defense of an “Act of God” was not included in M99. Note also: M99 eliminated the phrase “resulted solely from one or more of the following” that had been included in MP4.

163

164


THE GENERAL CONCEPT OF DELAY

• The concept of delay in transport can be difficult to grasp.12 This can, in many ways, be ascribed to the fact that delay has much in common with non-performance and, as such, is firmly rooted in the law of contracts. In Anglo-American law, as well as in Scandinavian law, delay may include not only late fulfillment of the obligation but also non-performance altogether.

• In continental law, an obligation must be possible to fulfill. Delay appears when the performance of the obligation is due to late Fulfilment of the obligation. However, non-performance is normally not included in the definition of delay in those juridictions.

165


• These differences in judicial viewpoints color the interpretation of what constitutes ‘delay’. Courts have struggled with the effort to regulate delay exhaustively by international conventions.13 The principal dividing line seems to be between delay (in the narrow understanding) and non-performance. However, the borderline is not normally clear cut.

• At one end of the spectrum, we have the late arrival of a flight attributable to congestion at destination, weather, or similar reasons. On the other end of the spectrum,

• we have a flight that is cancelled altogether. The former situation clearly constitutes delay; the latter clearly constitutes non-performance of the contract of carriage. A grey area lies in between.

166


• It should be noted that delay, even in a narrow sense, might have a cause that can be described as bumping of passenger (i.e., denying a passenger with a confirmed reservation a seat, due to overbooking, cancellation, or similar reasons). In such circumstances, the carrier often will offer a replacement flight. These situations, between delay and nonperformance, are more difficult to categorize

• This shows the difficulties in establishing a firm definition of the concept of ‘delay’. It should also be noted that the Courts have shown little interest in drawing a clear line between delay and non-performance under contracts for air carriage..

167

Absence of Definition

• Article 19 of both the Warsaw and the Montreal Conventions explicitly addresses ‘Delay’.

• It provides that the carrier is liable for damage caused by delay in the carriage of passengers, baggage, and cargo. Delay is not defined in either Conventions but can normally be understood as untimely arrival at destination.

• However, in order to tell what untimely means, one cannot simply turn to the scheduled time tables, as they are not strictly binding.

• It has been suggested that delay constitutes substantially exceeding the time that would normally be required for a comparable transport.

• This seems to be in accordance with court cases where delay has been interpreted to mean ‘abnormal delay’.

168

DEFENCES AND LIMITATIONS

• Article 19 of the Montreal Convention also provides that the carrier enjoys a defense if it proves it took all necessary measures to avoid the damage or that it was impossible to do so, a defense that was universally available for all claims under Article 20 of the Warsaw Convention.

• Under the Montreal Convention, passengers can recover actual damages up to 4,150 SDRs for personal delay and 1,000 SDRs for baggage delay21 or more if it was proven that the carrier engaged in wilful misconduct (‘done with intent to cause damage or recklessly and with knowledge that damage would probably result’).

• For delay of cargo, one can recover actual damages up to 17 SDRs per kilogram, but no more, as the ceiling for cargo is unbreakable.

169


• Article 20 of the Warsaw Convention relieved the carrier of liability where it took ‘all necessary measures to avoid the damage or that it was impossible. . .to take such measures’.

• Though under the Montreal Intercarrier Agreement of 1966, air carriers waived the ‘all necessary measures’ defense in personal liability .

• For delay of passengers and their baggage, Montreal Protocol No. 4 (amending the Warsaw Convention) reaffirmed the ‘all necessary measures’ defense; the carrier shall not be liable where it proves that it took all necessary measures to avoid the damage or it was impossible for him to do so.

• For cargo, however, the all necessary measures defence was eliminated. So too, the Montreal Convention of 1999 eliminates the defence except for delay and baggage claims. cases, the defense was retained in baggage and cargo cases

170

From Warsaw to Montreal

• However, the Montreal Convention of 1999 significantly amended the language. The traditional defense that the carrier or its agents has ‘taken all necessary measures to avoid the damage or that it was impossible for them to’ do so, has been replaced by language exonerating the carrier if it or its agents ‘took all measures that could reasonably be required to avoid the damage or that it was impossible’ to do so.

• ‘All necessary measures’ appears facially to be a more exacting standard than ‘all measures that could reasonably be required’. Courts have held that the Warsaw phrase ‘all necessary measures’ means ‘all reasonable measures’. The Convention ‘cannot literally require a defendant to take all necessary measures, because if all such measures had actually been taken, the plaintiff’s injury – the damage – would have not occurred’ 171


• under the Warsaw and the Montreal Conventions, the carrier ordinarily can exonerate itself where, for example, it proves that inclement weather caused the delay.

• Courts have held that liability would be inappropriate for weather-related delays, such as those that result from fog, hurricanes, typhoons, or volcanic eruptions. In contrast, with respect to damage to or loss of unchecked baggage, the carrier is liable only for its fault, or that of its servants or agents.

•Manufacturer’s Hanover Trust Co. v. Alitalia Airlines.

•DeVera v. Japan Airlines

•Jahanger v. Purolator Sky Courier

•Obuzor v. Sabena Belgian World Airlines. 172

DOES ‘BUMPING’ CONSTITUTE DELAY OR CONTRACTUAL NON-PERFORMANCE?

• One issue that has arisen in the jurisprudence is whether ‘bumping’ a passenger because of deliberate overbooking or otherwise constitutes ‘delay’ under Article 19, or whether it constitutes non-performance of the contract.

• If it constitutes delay, the remedies are those prescribed under Article 22 of the Montreal Convention – 4,150 SDRs (approximately USD 6,700 or EUR 4,150), or more if the carrier engaged in willful misconduct under Article 22(4), or nothing if the carrier took ‘all measures that could reasonably be required to avoid the damage or that it was impossible for them to take such measures’ under Article 19.

• A last minute rebooking on an alternative international flight, plus hotel and meals occasioned by the delay, may well exceed this amount. 173


•Examining the travaux pre´paratoires of the Warsaw Convention, the US Court of Appeals for the Seventh Circuit in Wolgel v. Mexicana Airlines concluded that:

•it became clear among the delegates that there was no need for a remedy in the Convention for total non-performance of the contract, because in such a case the injured party has a remedy under the law of his or her home country. The delegates therefore agreed that the Convention should not apply to a case of non-performance of a contract.

174


• Noting that the essential message of the United States Supreme Court in El Al v. Tseng was that ‘the application of the Convention is not to be accomplished by a miserly parsing of its language’, the US Federal District Court in Paradis v. Ghana Airways distinguished Wolgel on two grounds:

• (1) the passenger in Wolgel was bumped on the outbound leg of his round trip itinerary, whereas the passenger in Paradis was bumped on the return leg; and

• (2) though the passenger in Wolgel was not accorded alternative transportation by the carrier, while the passenger in Paradis was. The Paradis court held that ‘[a] passenger cannot convert a mere delay into contractual non-performance by choosing to obtain a more punctual conveyance’.

175


• However, not all return-leg flight delays have been so interpreted. In Mullaney v. Delta Air Lines, a passenger purchased a round trip ticket from New York-Rome- Paris-New York. The Paris-New York leg was cancelled due to a strike that grounded all flights. The court refused to consider the event a ‘delay’ but instead viewed it as ‘nonperformance’ of the contract of carriage, not preempted by the exclusivity mandates of the Convention.

• According to the court, ‘Plaintiff is seeking damages resulting from Delta’s refusal to provide him with any flight home after having taken his money for a ticket – in short, for failure to perform its obligation to provide carriage in exchange for money it had received. That is not delay – it is non-performance.’ 176

Weiss v. El Al Israel Airlines

• The minutes of the International Conference on Air Law at Montreal, 10–28 May 1999, indicate that the drafters of the Montreal Convention were aware of the difficulty in defining delay and were willing to leave the determination of what does and does not constitute delay to the national courts.

• The minutes reflect that upon request from the representative of China to incorporate a previously drafted definition of delay into what was to become Article 19, the Chairman of the Conference, supported by the Chairman of the Drafting Committee, commented that because of the impossibility of drafting a precise definition for delay, the proposed definition would be struck in favor of leaving the definition to national courts. . . . 177

Weiss v. El Al Israel Airlines

• the courts that have dealt with this question in other signatory countries have almost uniformly accepted that bumping constitutes contractual nonperformance redressable under local law and not delay for which the convention supplies the exclusive remedy.

• Still, other courts have been un-persuaded by Weiss. The court in Igwe v. Northwest Airlines found that the plaintiffs, in failing to present themselves on time to claim their reserved seats, and in failing to accept the carrier’s offer of alternative transportation, ‘acted too hastily in rejecting KLM’s conciliatory offers to be able to claim complete non-performance by the airline’

178

Conclusion

•In conclusion, it seems that the reading of the minutes of the conference in Warsaw may support the proposition that bumping is not covered under the Warsaw Convention as it constitutes non-performance of the contract of carriage.

•In certain circumstances when the customer is offered a replacement carriage, the courts have found that the convention might be applicable in any case.

•The same seems to be the status of the Montreal Convention

179

•See also Kandiah v. Emirates [2007] O.J.

• A case with a strange set of facts involving a round trip flight from Canada to Sri Lanka via Dubai and Zurich. On the return, the carrier refused to board the passenger on his Dubai-Zurich flight until he proved he held permanent residence status in Canada.

• The passenger ran out of medication after a few days and was hospitalized. Then, the carrier picked him up and invited him to continue on his itinerary to Zurich but instead forced him aboard an aircraft bound back to Colombo, Sri Lanka.

• It took him more than a month to get back to Canada, and he lost his job in the interim, and his health deteriorated. The Ontario, Canada, court held that this was not a case of delay under the Convention. 180

Bumping relevant jurisprudence •M

raz v. Lufthansa German Airlines, 2006 US Dist.•M

ullaney v. Delta Air Lines, 2009 US Dist.•E

l Al Israel Airlines Ltd. v. Tseng, 525 US 155, 119 S.Ct. (1999).•W

olgel v. Mexicana Airlines, (7th Cir. 1987). •M

ahaney v. Air France, (S.D.N.Y. 1979).•H

endel v. Iberia (Canada Provincial Court)•I

gwe v. Northwest Airlines

181

•UNITED STATES REGULATION ON OVERSALES AND DENIED BOARDING COMPENSATION

•EU REGULATION ON FLIGHT CANCELLATION, DELAYS, AND DENIED BOARDING

ASSIGNMENT

182

CHAPTER 3 : Exoneration and Limitation

183

I. Exoneration of Liability• A

rt. 17 of the Warsaw Convention states that the carrier is liable for damage sustained in the event of 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. From this statement it seems that the liability of the carrier is a strict liability.

• However, the carrier may be exonerated from liability in two cases:

• 1) If the carrier proves that it has taken all necessary measures or that it was impossible to take such measures (article 20);

• 2) In the case of contributory negligence (article 21).

184

1. All necessary measures•P

rimary question : In reality the damage could not happen if the carrier took all necessary measures to prevent it. Accordingly, if damage was caused, all necessary measures can not have been taken. In this way the Article cancels out itself.

•Art. 20 was inspired by the Paris Conference on private international air law, which took place in 1925, where “all reasonable measures” (les mesures raisonables) was suggested. During the Conference in Warsaw in 1929 “les mesures raisonables” was changed to “toutes mesures nécessaires”,

185

From necessary to reasonable measures

• In the case of Grein v. Imperial Airways, Ltd. the court held that the air carrier had to prove that it had shown “all reasonable skill and care in taking all necessary measures to avoid damage…”.

• In Hannover Trust Co. v. Alitalia Airlines the court stated that “all necessary measures” really meant “all reasonable measures”. In Chrisholm v. British European airways the passengers had been instructed to take their seats and fasten their seat belts because of air turbulence.

• The claimant had despite the warning left her seat and was injured as she fell. The court stated that it was sufficient that the air carrier proved that he had “taken all reasonable care in warning the passengers”, and thus the passenger’s claim was denied.

186

Unresolved accident • O

ne of the characteristics of air travel is unresolved accidents.

• Sometimes the cause of the accident cannot be traced because there are no survivors of the plane accident to tell what happened, and the pilot might not have had the time to make a call over the radio prior to the accident.

• Is the carrier liable under Art. 20 when the cause of the accident cannot be traced?

• We have two views in this regard :

187

Unresolved accident •

Majority view :•T

he carrier does not have to explain the cause of the accident to prove that he and his agents took all necessary measures. It is sufficient to prove that the aircraft took off well equipped and with well qualified personnel on board.

• Minority view that for the unresolved accident the air carrier is liable for damages up to the limits of the Warsaw Convention, because it is presumed that all necessary measures have not been taken, and the carrier in an unresolved accident is not able to prove that he and his agents are not to blame.

• The latter view has been followed in the majority of the cases. In the cases Grein v. Imperial Airways, td., Flohr v. K.L.M. and Wyman and Bartlett v. Pan American Airways, Inc.

188

Unresolved accident = M 99 • T

he regime of fault/negligence with a reversed burden of proof is still in force in the Montreal Convention for claims exceeding SDR 100,000.

• The Montreal Convention Art. 21(2)(a) and (b) provides that the carrier must prove that

• 1- the damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents, or

• 2- that it was solely due to the negligence or other wrongful act or omission by a third party.

• These two alternatives seem to state the same affirmation. If the carrier proves that someone else was the sole cause of the damage, then it has at the same time proven that the damage was not due to any negligence, wrongful act or omission of the carrier and vice versa.

189

Unresolved accident = M 99 •I

t will be difficult for the airline to prove that it did absolutely nothing wrong. The expression “solely” narrows the defense of the carrier as it is not enough that a third person merely contributed to the damage.

•The system of the Montreal Convention provides a major benefit for the consumer.

190

2. Contributory Negligence•T

he carrier can also be exonerated from liability by proving contributory negligence. Art. 21 of the Warsaw Convention provides that the carrier will be wholly or partly exonerated if he proves that the damage was caused by or contributed to by the negligence of the injured.

•An example is Chutter v. KLM Royal Dutch Airlines & Allied Aviation Services International Corporation where a passenger, wanting to say farewell to her family, ignored the “fasten seat belts” sign, fell out of the aircraft and injured her leg as she did not notice that the stairway leading to the aircraft had been removed. In this case the carrier was not held liable.

191

M99 = Contributory Negligence• I

n some common law states the claimant cannot obtain any compensation if he contributed to the negligence. The provision has been changed in the Montreal Convention. Art. 20 no longer refers to lex fori and the court seized no longer has an option but an obligation to exonerate the carrier to the extent that the damage was caused by contributory negligence. The defense of contributory negligence can explicitly also be used for the first tier of liability up to SDR 100,000.

• There is no absolute liability on behalf of the carrier. The carrier is not placed in the same position as an insurer.

192

CHAPTER 3 : Exoneration and Limitation

193

II. Limit of Liability• T

he limit of liability would be an incentive for further development of the aviation industry. Another argument was that the carrier should know how much to pay in advance such that it, as well as the passenger, could properly insure itself.

• The Warsaw Convention provides two possibilities for getting around the limit of liability for death or injury to passengers:

• (1) If the damage is caused by the carrier’s wilful misconduct, or such default as is considered to be equivalent to wilful misconduct (Art. 25).

• (2) In the absence of a passenger ticket (Art. 3, para. 2).

194

1. Default in Ticketing• T

he last sentence in Art. 3(2) of the Warsaw Convention states, “Nevertheless, if the carrier accepts a passenger without a passenger ticket having been delivered he shall not be entitled to avail himself of those provisions of this Convention which exclude or limit his liability”.

• Unfortunately, the Warsaw does not give any definition of a ticket, which makes it more difficult to ascertain when a ticket has been delivered.

• Art. 3(2) first sentence rules out the first possibility as it provides that the absence, irregularity or loss of a passenger ticket shall not affect the existence or validity of the contract of carriage. This clarifies that the ticket is independent from the contract of carriage.

195

The method in these US-cases of interpreting Art. 3(2) is to read para. 2 in conjunction with para. 1, so that the

delivery of a ticket with the contents established in para. 1 is required to

satisfy para. 2. The main purpose of this interpretation was, of course, to

avoid the limit of liability.

The courts in the rest of the world did not seem to take this approach but took a more literal approach in the

interpretation of Art. 3.

THE US COURT METHODS

196

Mertens v. Flying Tiger Line, Inc• t

he passenger ticket, which was delivered to a military passenger when the passenger was already seated on the airplane and on which the limitation of liability was almost unreadable and unnoticeable, was not delivered in compliance with Art. 3(2). As a consequence, the limitation of liability was not available to the airline.

• The court stated that the delivery requirement of Art. 3(2) would make little sense if it could be satisfied by delivering the ticket to the passenger when the aircraft was several thousand feet in the air.

• In Lisi v. Alitalia-Linee Aeree Italiane, the passenger had obtained the ticket days before takeoff, but as the notice was printed in microscopic letters, it was deemed insufficient and the airline could not exclude or limit its liability under the Convention.

197

Warren v. Flying Tiger Line• n

o ticket was issued, but a boarding ticket was passed out to the servicemen at the foot of the ramp to the plane, which made reference to the Warsaw Convention both on the front and on the back of the ticket.

• The court was of the opinion that the acceptance of the passengers took place upon boarding, and if Art. 3(2) was to be understood literally the ticket had been delivered when accepting the passenger enabling the carrier to limit its liability.

• However, the court held that the purpose of the delivery requirement is the notice, which in effect becomes without value if the passenger does not have time to read it and take out additional insurance before the plane takes off. Art. 3(2) was therefore not satisfied.

198

The shift of US Court in Chan v. KAL (1989)

•In this case the court followed a strict literal approach providing that para. 1 and 2 are to be read separately. Para. 2 does not refer to the content of the ticket but only to the delivery of the ticket.

•The majority found support for this interpretation in the fact that Art. 4 about baggage checks and Art. 9 about air waybills do contain a notice requirement, and as Art. 3 does not, it is implied that passenger tickets are not subject to a notice requirement. After the Chan case it can be concluded that the ticket is simply evidence of the contract.

199

2. Willful Misconduct• A

rt. 25 of the Warsaw Convention is a safety clause under which unlimited liability in special circumstances can be invoked, namely in the event of damage resulting from the carrier’s “wilful misconduct or by such default … as …, is considered as equivalent to wilful misconduct”. The authentic text of the Convention, which is French, uses the words “dol” and “faute … équivalente au dol”.

• Unfortunately the French and the English text do not cover the exact same concept. The word “dol” means an act intentionally performed with the intent to cause damage, whereas “wilful misconduct” is characterized as an act knowingly performed with knowledge that damage may be caused, but without having necessarily intended to cause damage.

200

The definition of “wilful misconduct” is broader than that of “dol”

• Art. 25 also includes such default as, according to the law of the court seized, is considered as equivalent to willful misconduct. Here the uniformity of law is broken. Some countries treat gross negligence (faute lourde) as equivalent to “dol”. This is a tradition in civil law countries.

• Other countries, such as Brazil, do not treat gross negligence as equivalent to “dol”. In common law countries the term “willful misconduct” goes far beyond even gross negligence. In those countries the expression “équivalente au dol” has no relevance. Art. 25 thus leaves room for quite a bit of forum shopping.

201

Art. 25 has caused a confusion of terminology which has shown in the jurisprudence where a variety of different interpretations exist.

Horabin v. British Overseas Airways Corporation

•“willful misconduct” was defined as follows: “To be guilty of willful misconduct the person concerned must appreciate that he is acting wrongfully … and yet persist in so acting …regardless of the consequences, and acts … with reckless indifference as to what the result may be”.

•In the case of American Airlines v. Ulen willful misconduct was defined as “a deliberate purpose not to discharge some duty necessary to safety”.

202

Piamba Cortes v. American Airlines• T

he court in this case states that three alternative• w

ays of establishing wilful misconduct has been identified:•

1) Intentional performance of an act knowing that the act is likely to result in injury or damage;

• 2) An action taken with “reckless disregard” of the consequences; or

• 3) A deliberate failure to discharge a duty necessary to safety.

• The US courts have not come to any agreement on whether “reckless disregard” envisions a subjective or an objective test; Is it enough that the air carrier or its agents should have known that the conduct was likely to harm the passengers, or is knowledge required that damage would probably result?

203

Lockerbie case !• T

he growing dissatisfaction with the limit of liability has lead to US courts permitting the breaking of the limit for willful misconduct even in cases where the carrier had no control over the unlawful act.

• For instance, in Lockerbie case there was a piece of luggage contained a time bomb. Evidence indicated that the bomb came in from Malta on Air Malta flight KM 180 from Malta to Frankfurt and was transferred to Pan Am 103 in Frankfurt. Pan Am had neither permission nor jurisdiction to check the luggage, a task done by the national authorities in the airport.

• Despite this fact Pan Am was found guilty of willful misconduct and it even had to pay punitive damages!

204

M99 vision • T

he Montreal Convention, for passenger liability, solves the trouble caused by Art. 25 by having the regime of unlimited liability.

• It has no effect on compensation whether or not the act was caused by the carrier’s willful misconduct, because the claimant will recover actual proven compensatory damages without any limit (including damage above SDR 100,000 unless the carrier successfully invokes the “all necessary measures” defense), but nothing more, as the convention explicitly excludes punitive damages.

• This can help to overcome the problem of victims having to wait for many years for compensation. However, the limits for delay and for baggage are still breakable in case of willful misconduct. 205

206

CHAPTER 4 : JURISDICTION

Against whom may suit be brought? •T

he Montreal Convention addresses “Successive Carriage”. •U

nder Art. 36: •T

he consignor has a right of action against the first carrier; •T

he consignee has a right of action against the last carrier; •E

ither has a right of action against the carrier who had possession of the cargo during its destruction, damage, loss or delay.

•The Montreal Convention also incorporates the provisions of the Guadalajara Convention, extending its applicability beyond the contracting carrier to the “actual carrier”, who shall be liable for the carriage it performs.

•Under Art. 41, acts or omissions of the actual carrier also shall be deemed those of the contracting carrier.

207

Where may suit be brought? •U

nder Art. 33 suit may be brought in a court of a State party to the Convention:

•The carrier’s domicile;

•The carrier’s principal place of business;

•The carrier’s place of business through which the contract was made; or

•The place of destination.

•Additionally, under Art. 46 suit may be brought in a court of:

•The actual carrier’s domicile;

•The actual carrier’s principal place of business. 208

Selected biography 1. Montreal Convention replaces Warsaw Convention. A Presentation by Thomas GutrufKuehne before the FIATA Congress in 2004. Retrieved fromhttp://www.spedlogswiss.com/freedoc/?id=100119822. Montreal Convention 1999 – Merits and Flaw, by Professor Dr Michael Milde presentedat The International Conference on Contemporary Issues of Air Transport, Air Law &Regulation, New Delhi, India 25 April 2008, Available at :http://www.mcgill.ca/files/iasl/C08-Michael_Milde-M_99_Merits_and_Flaws.pdf3. Warsaw Convention Or Convention For The Unification Of Certain Rules Relating ToInternational Carriage By Air, Signed At Warsaw On 12 October 1929 – Text AvailableAt: http://www.dot.gov/ost/ogc/Warsaw1929.pdf4. Current lists of parties to multilateral air law treaties, Retrieved from ICAO website,Available at:http://www2.icao.int/en/leb/Lists/Current%20lists%20of%20parties/AllItems.aspx5. International Airline Accident Law by Phillip J. Kolczynski Law Corporation, Availableat: http://www.aviationlawcorp.com/content/intlairline.html6. Motreal Convention or The Convention for the Unification of Certain Rules forInternational Carriage by Air Signed at Montreal on 28 May 1999, Available at:http://www.jus.uio.no/lm/air.carriage.unification.convention.montreal.1999/7. Aviation Research, Resource Links by Condon & Forsyth LLP. Available at:http://www.condonlaw.com/li_avi.htm

209

Selected biography 8. A History of Int'l Air Conventions ,The Proposed Montreal Convention of 1999 -Remarks & Approval of The White House - Sept. 2000, A Courtesy Reference from TheLaw Offices of Countryman & McDaniel, The Logistics - Customs Broker Attorneys,Available at: http://www.cargolaw.com/presentations_montreal_cli.html#index9. The Montreal Convention: The scram jet of aviation law, by Gary A. Gardner and BrianC. McSharry, April 2006, Available at:http://www.wilsonelser.com/files/repository/MontrealConvention_April2006.pdf10. Review of Carriers’ Liability and Insurance, Discussion Paper, Australian Government,Department of Infrastructure Transport Regional Development and Local Government.Available at:http://www.infrastructure.gov.au/aviation/international/files/Liability_Insurance_Discussion_Paper.pdf11. Carrier liability in case of death or injury of passengers, by Luis Castellví Laukamp,Sant'Anna School of Advanced Studies Department of Law, Retrieved from :http://www.stals.sssup.it/files/stals_Laukamp.pdf12. The Modernization of the Warsaw Convention and the New Liability Scheme for ClaimsArising Out of International Flight by Tory A. Weigand, Available at:http://www.morrisonmahoney.com/publications/MLR_Warsaw.pdf

210

Selected biography •1

3. Paul Stephen Dempsey,

•International Air Carrier Liability for Death & Personal Injury: To Infinity and Beyond, McGill University press.

•International air cargo & baggage liability and the tower of babel, McGill University Institute of Air & Space Law.

•International Air Carrier Liability for Death & Personal Injury: To Infinity

and Beyond, McGill University Institute of Air & Space Law.

•Montreal v. Brussels: The Conflict of Laws on the Issue of Delay in International Air Carriage.

211

Air law 2012 copie

Documents

international air carriage

air carriage of persons

carriage of passengers

gratuitous carriage

air waybills

carriers liability

liability of carriers

air carriers business