Aviation Law: Warsaw Convention - Term Paper Example

Warsaw Convention The Warsaw Convention’s fundamental objective was to establish a uniform regime for international air carriage. However, it failed to realise its goal of uniformity, and it was widely criticised. The Warsaw System resolved the inconsistencies between the legal applications and practices of different countries involved in an agreement. Subsequently in 1999, the Montreal Convention came into play, and provided greater predictability to both passengers and carriers. This Convention provided interpretation of its terms and provisions, rather than leaving this duty to the national courts. Furthermore, each and every article, irrespective of whether it has been checked or not is deemed to be baggage under the new Convention. This initiative enables passengers to easily recover compensation for damage to carry on items1. The Warsaw Convention’s wording had been ambiguous, and the courts had frequently found it very difficult to interpret it in the interests of passengers. This situation made it seem that passengers could not obtain compensation for damages caused to their articles. The wording of the Montreal Convention provides a clear understanding to passengers; regarding the interpretation of certain provisions, which can be made by the courts in the event of a dispute. It also resolved the important issue of liability of the carrier, in the context of injuries to or death of its staff or agents2. Hitherto fore, there had been considerable confusion among member countries, regarding the position of servants and agents of carriers. It was unclear, whether these individuals could claim compensation for damages under the provisions of the Warsaw Convention. The Montreal Convention had successfully resolved these conflicts. As such, it provides a clear understanding of the rights and obligations of passengers and carriers3. Liability can be circumvented by a carrier, under Article 20 of the Warsaw Convention, provided it can be established that the carrier and its agents had taken all the essential precautions to avoid damage, or that it had not been possible to adopt such measures. However, Protocol No. 4 of the Montreal Convention 2000 limits this defence to delays that result in loss or damage of goods. Moreover, the Warsaw Convention holds the carrier liable for damage caused by delay in transport4. There had been several moves to establish a balance between the interests of passengers and the amount recoverable towards damages to cargo, from the commencement of Warsaw Convention 1929. Passengers found it difficult to recover damages and the amount fixed for such recovery was always meagre. Subsequent amendments to the Warsaw Convention raised the amount of compensation. However, passengers still found it difficult to claim the damages as the limitations increased commensurately with the maximum amount of damages5. All this changed in the second half of the twentieth century. The operators of carriers became more efficient and established themselves in a financially sound position. This engendered the focus of Warsaw to shift towards passengers. Reforms transpired at a rapid pace. For instance, in the 1996 IATA Inter-carrier Agreement, the carriers consented to the proposal that they would not invoke the provisions of the Convention to limit the liability claims made by passengers6. The 1999 Montreal Convention raised the limit on the amount of compensation for damage. It established a statute of two – tier liability, and abandoned two grounds of the Warsaw Convention, for breaking the limit on damages. These grounds were the non – delivery of a travel document and wilful misconduct by the carriers. There are some disquieting issues involved in the transport of cargo by air or sea. Some of these are the choice of law and jurisdiction applicable to the transported cargo. This is because passengers and carriers belong to different countries, and it is very difficult to select the appropriate forum and applicable law in case of dispute. Moreover, carriers are economically stronger than the passengers. In addition, the practices and procedures adopted by national courts to resolve these disputes portray marked variation7. Article 21 of the Montreal Convention abolished all arbitrary restrictions on the liability of air carriers, in respect of victims of accidents. However, if the carrier can establish that it had not been negligent or that a third party had been responsible for the damage then it can evade liability for the full extent of the damages8. Moreover, Article 21 of the Montreal Convention limits the liability of carriers to the first 100,000 Special Drawing Rights, if the damages caused to the passengers are proved. As such, this Article does not allow the avoidance of liability by carriers on the grounds that they had not been negligent. Thus, Article 21 imposes strict liability on the carriers. However, Article 20 of the Montreal Convention permits carriers to seek exemption from this strict liability, on the grounds of contributory negligence9. Since its inception, the Warsaw Convention of 1929 on airline liability has governed international air travel. The system established by this Convention has come to be known as the Warsaw System. It comprises of 1929 Warsaw Convention provisions and some other protocols and agreements that brought about changes to it. At one point of time there were more than 135 countries that had consented to adhere to the provisions of the Warsaw Convention or its subsequent revisions10. The Warsaw System has been characterized for its imposition of stringent penalties on air carriers. The underlying objective of such impositions is to promote the international civil aviation industry. In the event of death or injury caused to a passenger, the carrier’s liability limit is 125,000 gold francs. The liability limit in the case of damage or loss of cargo is 250 gold francs per kilogram, unless a special value is declared at the time of consigning the cargo. Moreover, liability for personal hand baggage is 5,000 gold francs per passenger11. This limited liability is applicable only when a passenger travels with a valid ticket and the luggage or cargo has been checked and transported after issuing an airway bill. In the absence of these, the carrier cannot avail itself of the benefit of limited liability. Furthermore, if it is proved that damage had occurred on account of the wilful misconduct of the carrier or its agents, then the carrier is fully liable for the damage caused12. The liability limiting provisions of the Warsaw Convention are at once, its greatest strength and weakness. Its detractors have contended that the Warsaw System imposes low liability limits, which makes it difficult to claim commensurate damages13. In order to remedy this undesirable situation, the Montreal Convention introduced the concept of unlimited liability. Under the Warsaw Convention, the maximum compensation was limited to just 125,000 gold francs. The Montreal Convention has introduced a two tier system of compensation. Under the first tier, the carrier’s liability is up to 100,000 Special Drawing Rights per passenger. This concept applies irrespective of a carrier’s fault. Under the second tier there is no limit on the carrier’s liability. However, such liability is subject to the principles of fault14. The Montreal Convention introduced five major concepts. First, the immediate payment of advance amounts to entitled persons in aircraft accidents. This amount, which aids recipients to meet immediate needs, is to be deducted from the final settlement. Second, the carriers have to insure their business, which ensures that the carrier has readily available financial resources. These amounts will enable carriers to defray the cost of automatic payments or payments in disputes15. Third, determining the appropriate forum for litigations; under this concept, entitled persons can file lawsuits in their domestic courts, in order to claim compensation for damages, death or injury to a passenger. However, the country must be the place of domicile of the passenger at the time of the accident. Fourth, simplification of procedures, in order to circumvent time taking litigation. Fifth, introduction of a simplified and modernised documentation process, with regard to the particulars of passengers, baggage and cargo16. Despite the numerous benefits introduced by the Montreal Convention, there were several major issues of importance that had not been resolved. One of these relates to the burden of proof of negligence. Such proof of negligence is essential for claiming full compensation without any limit. However, it has remained unclear, as to who bears the burden of proving negligence on the part of the carrier17. This is because the passengers or entitled persons cannot prove negligence, as they will not be in a position to access the inquiry reports, till quite some time has elapsed. This is especially true of aircraft crashes. Moreover, claimants will generally face great difficulty in procuring the findings of the investigation authorities. These reports are essential for establishing the carrier’s negligence18. In the US, the passengers or the claimants’ beneficiaries are not required to prove the carrier’s negligence in cases of air disasters. This is in accordance with the provisions of national air transport law. Furthermore, under tortious liability, the claimants are not required to establish fault, in order to claim compensation. Therefore, under the Montreal Convention provisions, the relatives or family members of a passenger who lost his life or was injured in air accident may find it very difficult to discharge the daunting burden of proving negligence19. Another question that has remained unresolved, relates to the burden of costs. As the limitation of liability increased, it became imperative to answer the query as to who should bear the cost. Air carriers have transmitted the additional cost of insurance to passengers, by increasing ticket charges and by enhancing freight charges20. Under the Warsaw System, the settlements of claims has proved to be protracted and complicated. The Montreal Convention attempted to reduce this complexity and to hasten the process. To this end it introduced an additional fifth forum to deal with disputes. The effect of this fifth forum on courts could be to cause further delays. Moreover, the Montreal Convention failed to establish a specialised Air Accident Claims Tribunal that was akin to the Motor Accident Claims Tribunal for road accidents, or Maritime Law Claims Tribunal21. There is no consumer representation platform established by the Montreal Convention, as promised in its preamble. In the preamble to the Convention it is stated that the Convention gives importance to the protection of the consumers’ interests. It also recognises the importance of equitable compensation to passengers. Organisations like the ICAO or IATA play a major role in the international air travel industry. However, these organisations promote the interests of the industry and not that of the consumers. There are no organisations, which represent the interests of passengers and consigners at the national or international level22. The Montreal Convention has supplanted the Warsaw Convention. It has introduced a two tier test for claims relating to damages or injuries in air travel. It abolished the liability limit for personal injuries. Punitive, exemplary or non – compensatory damages are not recoverable under this Convention. It renders several claims easier, and air carriers have been made liable for damage caused to passengers and goods during the course of air travel23. They are also liable for personal injuries and death of passengers. However, such injuries or deaths must have occurred on board the aircraft. In addition, passengers who had sustained such injuries during the course of embarking or disembarking from the aircraft can claim compensation. Furthermore, compensation can be claimed on behalf of passengers who die during embarking or disembarking from aircraft24. The Montreal Convention’s two tier system for claiming damages brought about an increase in the liability limit to 100,000 SDR. It provides a defence to the carrier in the form of a test of contributory negligence of the passenger. Plaintiffs will no longer be denied compensation on the grounds that the carrier had taken all the necessary steps to ensure their safety25. The concept of strict liability makes it certain that plaintiffs will receive compensation for damages The only defence available to the carrier is that the damage had not transpired due to its negligence or wrongful act. The Warsaw Convention requires plaintiffs to prove that the carrier intended to cause the accident. The Montreal Convention abolished that requirement. However, carriers can avoid liability, greater than 100,000 SDR by proving that the accident had not been caused due to their negligence26 The principal objective of the Warsaw Convention was to establish the uniform application of rules to international air transportation. However, the Warsaw System has failed to achieve its objectives. Therefore, in order to achieve the goal of uniformity, these conflicts and disparities have to be resolved. Only then would it be possible to establish uniform application of rules that govern international air transport27. Its goal to engender true uniformity seems to be improbable, because of the involvement of many countries with different legal systems. The Warsaw Convention had established limited liability on carriers. Therefore, new avenues were attempted, in order to maintain a balance between the liability of carriers and the interests of passengers. To this end, the Montreal Convention introduced a new system to supplant Warsaw Convention’s system. The former, eliminated the practices of voluntary agreements and the application of domestic regulations. In this manner, the Montreal Convention established a balance between the interests of passengers and the protection of air carriers. Uniformity can be ensured only if all the countries of the world ratify the Montreal Convention. List of References Andemariam, S. W. (Spring 2006). Does The Montreal Convention Of 1999 Require That A Notice Be Given To Passengers? What Is The Validity Of Notice Of A Choice Of Forum Clause Under Montreal 1999? Southern Methodist University School of Law Journal of Air Law and Commerce , 71 J. Air L. & Com. 251. Batra, J. (Summer, 2000). Modernization Of The Warsaw System - Montreal 1999. Southern Methodist University School of Law Journal of Air Law and Commerce , 65 J. Air L. & Com. 429. Christy, C. W. (Spring 1999). Changes In International Air Cargo: Montreal Protocol No. 4 Attains Force Of Law. ILSA Journal of International & Comparative Law , 5 ILSA J Intl & Comp L 531. McKay, J. (Fall, 2002). The Refinement Of The Warsaw System: Why The 1999 Montreal Convention Represents The Best Hope For Uniformity. Case Western Reserve Journal of International Law , 34 Case W. Res. J. Intl L. 73. McKay, J. (Winter2002). The Refinement Of The Warsaw System: Why The 1999 Montreal Convention Represents The Best Hope For Uniformity. Case Western Reserve Journal of International Law , Vol. 34 Issue 1; (AN 8838923). Montreal Convention. (2006). Retrieved April 18, 2009, from In Collins Dictionary of Law. London: Collins: http://www.credoreference.com/entry/5980876 Shaw, M. N. (2003). International law. Edition: 5, revised. Published by Cambridge University Press. ISBN 0521824737, 9780521824736. Read More