The Historical Background THE WARSAW CONVENTION 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 in Warsaw (hence the name), it was amended in 1955 at The Hague and in 1975 in Montreal.1 The original Warsaw Convention arose mainly out of two sessions of the Confrence Internationale de Droit Priv Arien and the work of its specialist Comit International Technique dExperts Juriques Ariens (CITEJA). It was signed on 12 October 1929 by Austria, Belgium, Brazil, Czechoslovakia, Denmark, France, Germany, Greece, Italy, Japan, Luxembourg, Netherlands, Norway, Poland, Romania, the Russian Federation, South Africa, Spain, Switzerland, United Kingdom and Yugoslavia. It entered into force on 13

February 1933, being 90 days after the deposit with the Government of Poland of the necessary five instruments of ratification. It entered into force in the UK on 15 May 1933, being given the force of law by the Carriage by Air Act 1932, which Act was repealed by the 1961 Act.2 The Hague Protocol of 1955 was added to the Warsaw Convention with the aim of adapting it to the demands of modern transport. The Protocol entered into force on 1 August 1963, the ninetieth day after ratification by 30 countries. The Guadalaraja Convention of 1962 for the Unification of Certain rules Relating to International Carriage by Air Performed by a Person Other than the Contracting Carriers. This amendment took the form of a Supplementary

Convention because it was concluded to deal with an entirely new subject-matter, namely chartering. It has been in force since 1 May 1964. The Guatemala Protocol of 8 March 1971 was also meant to be an amendment to the Warsaw Convention. This Protocol, however, has yet to come into force. Another four amending Protocols were concluded at the Montreal on 25 September 1975. Then, there is the Montreal Agreement of May 1966, a private agreement concluded between IATA carriers and the United States Civil Aeronautics Board, and the socalled Malta Agreement, which is a private agreement between a numbers of air carriers, mostly from Europe. Finally, there is the Montreal Convention 1999 that became necessary because the Warsaw system no longer functioned satisfactorily. The liability system had to be
1 2

http://en.wikipedia.org/wiki/Warsaw_Convention C. Malcolm, Y. David, Contracts of Carriage by Land and Air, (2004), London, LLP

modernized. ICAO had chosen a supplementary convention as the means of doing so instead of another protocol because the Guatemala City Protocol of 1971 and the Montreal Protocols of 1975 were not ratified sufficiently.3

IATA (THE INTERNATIONAL AIR TRANSPORT ASSOCIATION)

The International Air Transport Association (IATA) is an international industry trade group of airlines headquartered in Montreal, Quebec, Canada, where the International Civil Aviation Organization is also headquartered. The executive offices are at the Geneva Airport in Switzerland. IATA's mission is to represent, lead, and serve the airline industry. IATA represents some 230 airlines comprising 93% of scheduled international air traffic. The Director General and Chief Executive Officer is Tony Tyler. Currently, IATA is present in over 150 countries covered through 101 offices around the globe.4 This organization occupies a most important place in the world of international air transport. IATA is not an intergovernmental body, but a private organization of scheduled airlines. It was originally set up by six airline companies on 28 August 1919, as the International Traffic Association. IATAs aims and objectives are clearly set out in its incorporating Act. Its aims and objectives are: a) to promote safe, regular and economical air transport for the benefit of peoples of the world, to foster air commerce and to study the problems connected therewith b) to provide means for collaboration among the air transport enterprises engaged directly or indirectly in international air transport service. c) to cooperate with the International Civil Aviation Organisation (ICAO) and other international organizations. (Article III, Articles of Association)5

3 4

Prof. Dr. Diederiks, An Introduction to Air Law, (2006), United Kingdom, Kluwer Law International, p. 150. http://en.wikipedia.org/wiki/International_Air_Transport_Association 5 Naveau J., International Air Transport in a Changing World, (1989), Brussels, Bruylant/Martinus Nijhoff Publishers

IATAs main purpose lies in the technical and commercial sector. Its technical duties were designed from the beginning to achieve safer, more regular and more economical air traffic. In the commercial sector, IATAs activities were expected to create the best possible conditions for all categories of customers. Practically, all airline companies involved in scheduled air transport have a seat in the organisation, which maintains close ties with the government authorities of Member States. Notwithstanding airline deregulation, some companies are supported by public funds, others are even 100 percent state-owned. It is therefore not surprising that IATAs recommendations to governments are always received with due respect and consideration. Whenever a convention enjoys IATA support, there is a fair chance of it being adopted and successfully applied in practice; conversely, if IATA is opposed to a particular convention, its chance of securing adoption are greatly reduced.6 Today, the pioneering work is reflected in the currently applicable IATA Resolutions dealing with these and many other subjects. Notable examples are: The Multilateral Interline Traffic Agreements: These are the basis for the airlines' interline network. Close to 300 airlines have signed them, accepting each others' tickets and air waybills - and thus their passenger and cargo traffic - on a reciprocal basis. Passenger and Cargo Services Conference Resolutions: These prescribe a variety of standard formats and technical specifications for tickets and air paybills. Passenger and Cargo Agency Agreements & Sales Agency Rules: These govern the relationships between IATA Member airlines and their accredited agents with regard to passenger and cargo. Debt Settlement between airlines, largely arising from interlining, takes place through the Clearing House, which began operations in January 1947. During its first year, 17 airlines cleared (US) $26 million.7

6 7

Prof. Dr. Diederiks, An Introduction to Air Law, (2006), United Kingdom, Kluwer Law International, p. 50. http://www.iata.org/about/Pages/history_2.aspx

The Scope of Application The original text of the Warsaw Convention may conveniently be examined first in terms of its applicability. In Article 1 of the convention, it applies only when the transportation is international (although many nations apply its rules also to transportation within their borders). Another notable element is that the convention is applicable to all international carriage of persons, baggage or goods for reward. Note that by its nature, the Warsaw Convention only applies to carriers; a law suit against an aircraft inspection service is not subject to the rules of the convention. Article 2 of the Warsaw Convention states the scope of applicability of the convention. The main purpose of this Article is to exempt carriage performed under the terms of any international postal Convention and, at the same time, it ensures that the Convention applies to carriage performed by the State or legally constituted public bodies. 8 According to Article 2(1) of the Warsaw Convention, the convention only applies to carriage performed by the states or by legally constituted public bodies provided it falls within the conditions laid down in Article 1.9 In Article 2(2), it states that the Convention does not apply to carriage performed under the terms of any international postal Convention.10 Gratuitous carriage by aircraft is also covered by the convention, but only when performed by an air transport company. Other gratuitous carriage is not included. The reason why an exception has been made for carriage by an air transport company is that free tickets are usually issued with the intention of obtaining something return, such as for propaganda purposes. Rules concerning gratuitous carriage, when it occurs are normally to be found in domestic law. Naturally, the question arises: what exactly is to be regarded as international carriage? What does the term international transportation really mean? Article 1 provides the answer: for the purposes of the convention the expression international carriage means any transportation in which, according to the agreement made by the parties, the point of departure and the point of destination, whether or not an interruption in the carriage or a transshipment occurs, are situated either within the territories of two High Contracting Parties, or within the territory of a single
8 9

http://ourblog.greenwoods.org/carriage-by-air/ Article 2(1) of Warsaw Condition 1929 10 Article 2(2) of Warsaw Condition 1929

High Contracting Party if there is agreed stopping place within the territory of another state, even if that state is not a High Contracting Party. The applicability of the convention is not affected by incidental occurrences like an emergency landing.11 In the case of Grein v. Imperial Airways12 agreed stopping places that it was deemed sufficient for them to be referred to, for instance, in the timetables of the carrier, even if they had not been specifically mentioned in the documents. In the same case, it was ruled that an intermediate place at which the carriage may be broken is not regarded as place of destination. The convention does not cover the entire relationship between the carrier and the passengers or the consignors of goods. Supplementary rules are to be found in the IATA Conditions based on the convention. To what types of aircraft will the Warsaw Convention be applicable? As the convention itself provides no clue, we shall have to rely on the general definition found in the Annexes to the Chicago Convention, a definition which in turn had its origin in the Paris Convention, namely: any machine that can derive support in the atmosphere from the reactions of the air. A very wide definition indeed, since it comprises also helicopters, gliders, balloons, etc. the fact that ICAO has altered this definition by adding the words other than the reactions against the earths surface is clear sign of the inapplicability of the convention to carriage by hovercraft. IATAs scope of application is different compare to the Warsaw Convention. The IATA Conditions focuses more towards representing, to lead and to serve the airline industry. 13 The scope of applicability of IATA Conditions lies in Article 2 of the conditions which states seven types of application of the IATA. Generally, the IATA Conditions shall apply to all carriage of cargo, including all services incidental thereto, performed by or on behalf of the carrier, provided however that if such carriage is international carriage as defined in the applicable convention, such carriage shall be subject to the provisions of the applicable convention and to these

11 12

Prof. Dr. Diederiks, An Introduction to Air Law, (2006), United Kingdom, Kluwer Law International, p. 103. Grein v. Imperial Airways [1936] USAvR, 211 13 http://www.iata.org/about/Pages/mission.aspx

conditions to the extent that these conditions are not inconsistent with the provisions of such convention. This is as stated in Article 2.1 of the IATA Conditions.14 According to Article 2.2 of the Conditions, all carriage or other services performed by the carrier are subject to the applicable laws, including national laws implementing a Convention or extending the rules of the applicable Convention to carriage which is not international carriage as defined in the applicable convention, government regulations, order and requirements. The carriers are also subject to the IATA Conditions and all the applicable tariffs, rules, regulations and timetables of carrier which may be inspected at any of its offices and at airports from which it operates regular services.15 However, the IATA Conditions is not applicable to carriage between places in the United States or in Canada or between a place in the United States or in Canada and any place outside thereof to which tariffs in force in those countries apply. The tariffs applicable to such carriage are available for inspection at the offices of carrier. This has been described in Article 2.3 of the IATA Conditions.16 In Article 2.4, it states that with respect to gratuitous carriage, carrier reserves the right to exclude the application of all or any part of these conditions.17 Another scope of application of the IATA Conditions is regarding the charters where it lies in Article 2.5 of the condition. With respect to carriage of cargo performed pursuant to a charter agreement with the carrier, such carriage shall be subject to carriers charter tariffs applicable thereto (if any) and these conditions shall not apply except to the extent provided in said charter tariff. Where carrier has no charter tariff applicable to such charter agreement, these conditions shall apply to such agreement except that carrier reserves the right to exclude the application for all or any part of these conditions and, in case of divergence between the applicable provisions of these conditions and the conditions contained or referred to in the charter agreement, the latter shall prevail and the shipper, by accepting carriage pursuant to a

14 15

Article 2.1 of the IATA Conditions Article 2.2 of the IATA Conditions 16 Article 2.3 of the IATA Conditions 17 Article 2.4 of the IATA Conditions

charter agreement, whether or not concluded with the shipper, agrees to be bound by the applicable terms thereof.18 In Article 2.6, it states that the conditions and the published rates and charges are subject to change without notice except to the extent otherwise provided by applicable law or government regulations or order, provided however that no such change shall apply to a contract of a carriage after the date of issuance of the air waybill by carrier or after the date of the issuance of the air waybill by carrier or after the date the rate or charge for the carriage has been entered in the shipment record.19 The last scope of applicability of the IATA Condition is as stated in Article 2.7 that is on the effective rules. In this Article, it states that all carriage of cargo governed by these conditions shall be subject to carriers rules, regulations and tariffs in effect on the date of issuance of the air waybill by carrier or on the date of shipment record, whichever is applicable, provided that in the event of inconsistency between these conditions and carriers rules, regulations and tariffs, these conditions shall prevail.20

18 19

Article 2.5 of the IATA Conditions Article 2.6 of the IATA Conditions 20 Article 2.7 of the IATA Conditions

Carriers Liabilities We must now examine the heart of the Warsaw Convention and explore in what manner the liability of the air carrier has been provided for and how the various elements of liability have been described. Article 17 of the convention states that the carrier is liable for damage sustained in the event of death or wounding of passenger or any other bodily injury suffered by a passenger. Article 18 provides that he carrier is also liable for damage to checked baggage or goods. Moreover, in Article 19, the carrier has been made liable for damage occasioned by delay in the carriage of passengers, baggage or goods by air. It should be emphasized again at this point that the rules of the convention are applicable exclusively in the sphere of transportation. They do not, for instance, cover manufacturers or air traffic controllers as the liability of the latter that is the air traffic controllers will be governed by civil law, or common law, as the case may be. The contract of carriage puts the carrier under an obligation to effect the transport without damage and without delay, so the carrier is compelled to accomplish the transport within a reasonable period of time. The legal basis of the liability of the carrier is a fault liability, but with a reserved burden of proof, which means that the onus of proof lies with the carrier. The arrangement reflects quid pro quo in the sense that the authors of the convention have chosen to place the burden of proof of the carriers shoulders in return for the passenger losing the benefit of unlimited liability of the carrier. The fact that in 1929 an aeroplane was still rather a novelty as means of transport must be taken into account in judging the merits of this arrangement. Of course, the passenger can at all time safeguard his interests by taking out insurance, unlike third parties on the surface who are not in a position to do so.21 In IATA Conditions, Article 11.1 states the liabilities of the carrier. According to the Article, carrier is liable to the shipper, consignee or any other person for damage sustained in the event of destruction or loss of, or damage to, or delay in the carriage of, cargo only if the occurrence with caused the damage so sustained took place during the carriage by air. For the
21

Prof. Dr. Diederiks, An Introduction to Air Law, (2006), United Kingdom, Kluwer Law International, p. 116.

purposes of this Article carriage by air shall comprise with the period during which the cargo is in the charge of the carrier, or in the charge of its agent.22

Carriers Defences Article 20 of the Warsaw Convention states that the carrier is not liable if he proves that he and his employee have taken all necessary measures to avoid the damage, or that it was impossible for him or them to take such measures. The various types of acts which may be regarded as constituting necessary measures are left to the discretion of the judge. Under the Warsaw Convention, the carrier is not liable if he proves that the damage was occasioned by negligent pilotage or negligence in the handling of the aircraft or in navigation and that in all respects, he and his agents have taken all necessary measures to avoid the damage. This provision concern goods and baggage only. The airline companies have hardly ever

invoked these clauses because they fear claims involving negligence. The carrier will also be exonerated, wholly or partly from liability if he proves that the damage was caused by, or contributed to by the negligence of the injured person. Lastly, the carrier is only responsible for his equipment insofar as he is required to prove, for instance after the emergency landing or collision with birds, that the aircraft had a certificate of airworthiness and that it was indeed air-worthy, not overloaded and in good condition.23 The carriers defences in IATA Conditions are stated in Article 11 of the conditions. In Article 11.2, carrier is not liable to the shipper, consignee or any other person for any damage, delay or loss of whatsoever nature arising out of or in connection with the carriage of cargo or other services performed by the carrier unless such damage, delay or loss is proved to have been caused by the negligence or willful default of the carrier and there has been no contributory negligence on the part of the shipper, consignee or other claimant.

22 23

Article 11.1 of the IATA Conditions Prof. Dr. Diederiks, An Introduction to Air Law, (2006), United Kingdom, Kluwer Law International, p. 123.

In Article 11.3, it states that carrier is not liable if the destruction, loss or damage to cargo is proved to have resulted solely from the inherent defect, quality, nature or vice of that cargo. Article 11.4 states the defences that the carrier may used in transporting the animals by air. It states that the carrier will not be liable for any loss, damage, or expense arising from death due to natural causes of death or injury of any animals caused by any conduct or acts of the animal itself or other animals such as biting, kicking, goring or smothering, nor for the caused or contributed to by the condition, nature or the propensities of the animal, or by the defective packing of the animal, or by the inability of the animal to withstand the unavoidable changes in its physical environment inherent in the carriage by air. The carrier also shall not be liable in any event for consequential loss or damage arising from the carriage subject to these conditions, whether or not the carrier had knowledge that such loss or damage might be incurred. This is stated in Article 11.5 of the IATA Conditions.24

24

Article 11 of the IATA Conditions

Documents Required The Warsaw Convention requires that documents of carriage be delivered to the passenger or shipper. Specific particulars are required for each type of transportation, i.e. the transportation of passengers, luggage and cargo. In some cases, the convention imposes a penalty for non-compliance with its requirements. There is no difficulty and no room for diverging interpretations, where there has been no delivery of a document of carriage. In addition, it appears that a proper document of

transportation must be delivered. Several courts have held that a carrier cannot rely on the existence of vaguely related documents which would allegedly give similar information to the shipper.25 The documents of carriage required are stated in Article 3 of the Warsaw Conventions. In Article 3, it states that for the carriage of passengers, the carrier is under an obligation to issue a ticket containing following details: (a) the place and date of issue; (b) the place of departure and of destination; (c) the agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right, the alteration shall not have the effect of depriving the carriage of its international character; (d) the name and address of the carrier or carriers; (e) a statement that the carriage is subject to the rules relating to liability established by this Convention.26 The absence, irregularity or loss of the passenger ticket does not affect the existence or the validity of the contract of carriage, which shall nonetheless be subject to the rules of this
25

Miller, G., Liability in International Air Transport; The Warsaw System in Municipal Courts, (1977), New York, Kluwer-Deventer-The Netherlands, p. 82. 26 Article 3 of the Warsaw Conventions 1929

Convention. 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. In Article 4 of the Conventions requires that a baggage check shall be issued for the transportation of baggage other than the items of which the passenger takes charge himself. The baggage check must be made out in duplicate, and must contain the same particulars as mentioned above for the passenger ticket. It must also contain a reference to the serial number of the passenger ticket, the number and weight of the packages, the amount of value declared in case the passenger has made such a declaration, and finally, a statement to the effect that the baggage will be delivered to the bearer of the check.27 The absence, irregularity or loss of the luggage ticket does not affect the existence or the validity of the contract of carriage, which shall none the less be subject to the rules of this Convention. Nevertheless, if the carrier accepts luggage without a luggage ticket having been delivered, or if the luggage ticket does not contain the particulars set out, the carrier shall not be entitled to avail himself of those provisions of the Convention which exclude or limit his liability.28 Later in Article 5 of the Warsaw Conventions, it states that one of the documents of carriage needed is the air waybill or the air consignment note. In Article 5, it states that every carrier of goods has the right to require the consignor to make out and hand over to him a document called an "air consignment note"; every consignor has the right to require the carrier to accept this document. The absence, irregularity or loss of this document does not affect the existence or the validity of the contract of carriage which shall, subject to the provisions of Article 9, be none the less governed by the rules of this Convention.29 The air waybill is made out in triplicate. By means of Article 6 of the convention, which gives all three copies the status of originals, the authors of the convention have intended to stress their equivalence. The first copy contains the mention for the carrier and must be signed by the
27 28

Prof. Dr. Diederiks, An Introduction to Air Law, (2006), United Kingdom, Kluwer Law International, p. 111. Article 4 of the Warsaw Conventions 29 Article 5 of the Warsaw Conventions

consignor of the goods. The second copy is marked for the consignee and it must be signed by the carrier and the consignor and it companies the goods. The third copy is signed by the carrier and delivered to the consignor after the receipt of the goods.30 The documents of carriage used in IATA Conditions are the same as the documents of carriage used in the Warsaw Convention. However, IATA Conditions require the shipper to make a shipment record. In Article 4.2 of the IATA Conditions, it states that carrier, with the express or implied consent of the shipper, may substitute for the delivery of an air waybill a shipment record to preserve a record of the carriage to be performed. If such shipment record is used, carrier shall, if so requested by the shipper, deliver to the shipper in accordance with carriers regulations a goods receipt permitting identification of the shipment and access, in accordance with carriers regulations, to the information contained in the shipment record.31

Compensation In Article 26, it is stated that in the event of damage to goods the person entitled to take delivery must lodge a claim with the carrier at the latest within three days from the date of receipt. In the event of delay, the complainant must be lodged at the latest within 14 days from the date on which the baggage or goods were placed at his disposal. These complainants must be made in writing. Article 26, paragraph 4 states that in the case of fraud on the part of the carrier, claims exceeding time limits will be received. Two more aspects of carriage need mentioning. The differences between carriage for reward and gratuitous carriage are the following: with gratuitous carriage, there is no reversal of the burden of proof and no contract of carriage is required. The gratuitous carrier does not enjoy the limited liability provided by the Warsaw Convention. More attention should be given to the transportation in situations where the passengers or goods are carried to their destination by various successive carriers. Such transportation will be regarded as undivided carriage if it

30

Prof. Dr. Diederiks, An Introduction to Air Law, (2006), United Kingdom, Kluwer Law International, p. 112. Article 4.2 of the IATA Conditions

31

has been regarded by the parties as a single operation. It is therefore of prime importance to know the intentions of the parties to the contract.32 For compensation claimed under IATA Conditions, we may refer to Article 7.3, 8.4.1 and 11.9. In Article 7.3, it states that the shipper shall be liable for and shall indemnify carrier for all loss or damage suffered or incurred by carrier as a result of the exercise of his right of disposition. The shipper shall reimburse the carrier for any expenses occasioned by the exercise of his right of disposition. Article 8.4.1 of the Conditions states that if the consignee refuses or fail to take the delivery of the shipment after the arrival at the airport of destination, the carrier will endeavor to comply with any instructions of the shipper set forth and the face of the air waybill, or in the shipment record. If such instruction was not so set forth or cannot reasonably be comply with, carrier shall notify the shipper of the consignees failure to take delivery and request his instructions . If no such instructions are received within 30 days, carrier may sell the shipment in one or more lots at public or private sale, or destroy or abandon such shipment. According to Article 11.9, the shipper, owner or consignee whose property causes damage to or destruction of another shipment or of the property of the carrier , shall indemnify carrier for all losses and expenses incurred by the carrier as a result thereof. Cargo which, because of inherent defect, quality or vice because of defective packing, is likely to endanger aircraft, persons or property may be abandoned or destroyed by carrier at any time without notice and without liability therefore attaching to the carrier.

32

Prof. Dr. Diederiks, An Introduction to Air Law, (2006), United Kingdom, Kluwer Law International, p. 143.

Conclusion Although nowadays plenty of laws drafted to solve many problems, especially regarding international trade, there are still lacunae that cannot be avoided. One of it is, if there is a situation where different mode of transport is being used by the carrier to transport the goods, for example, the carrier transports the goods by railway and then he transports the goods using transportation by air, at the same time, a problem occurs, which law shall prevail? Article 31 of the Warsaw Convention states that in the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of this Convention apply only to the carriage by air, provided that the carriage by air falls within the terms of Article 1. Further, the Contract for International Carriage of Goods by Rail (CIM) only governs and applies to the carriage of goods by railway. However, there is no specific or uniform law that governs all types or modes of transportation or carriage of goods, as the existing law only governs the specific mode of carriage. Thus, the lack of coherence between the different rules for each mode of transport is a nightmare for any carrier and its customers because of the legal uncertainty that exists, each time goods are transferred from one mode to another. More important, from the point of view of a cargo claimant, litigation would be less complicated because from an evidential point of view, as there would not be a need to attribute responsibility to a carrier of a particular mode of transport.

References BOOKS: 1. C. Malcolm, Y. David, Contracts of Carriage by Land and Air, (2004), London, LLP 2. Prof. Dr. Diederiks, An Introduction to Air Law, (2006), United Kingdom, Kluwer Law International 3. Naveau J., International Air Transport in a Changing World, (1989), Brussels, Bruylant/Martinus Nijhoff Publishers 4. Miller, G., Liability in International Air Transport; The Warsaw System in Municipal Courts, (1977), New York, Kluwer-Deventer-The Netherlands 5. 6. 7. The Warsaw Conventions 1929 The IATA Conditions Uniform Rules Concerning the Contract for International Carriage of Goods by Rail (CIM)

WEBSITES:

1. 2. 3. 4. 5.

http://en.wikipedia.org/wiki/Warsaw_Convention http://en.wikipedia.org/wiki/International_Air_Transport_Association http://www.iata.org/about/Pages/history_2.aspx http://ourblog.greenwoods.org/carriage-by-air/ http://www.iata.org/about/Pages/mission.aspx