Laibility in avaiation


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Laibility in avaiation

  1. 1. LIABILITIES IN THE AVIATION INDUSTRY SIREESH P. UAV- Flying instructor----------------------------------------------------------------------------------------------------------INTRODUCTIONAn airlines liability for a passengers injury or death is most often determined by state law.But if the passengers trip includes a stop in a foreign country, then the airlines liability iscontrolled entirely by international treaties. The treaties are known as the WarsawConvention and the Montreal Convention.The treaties also govern a passengers claims for injuries occurring on a domestic flight, aslong as a foreign destination was on the passengers itinerary. That means that state lawmay govern the claims of one victim of an airline disaster, while a treaty may govern theclaims of his friend in the very next seat. Because different law applies, one victim (or hisfamily) might be entitled to compensation from the airline and the other not. Making us thinkWhich is more favourable for the victim -- state law or the treaties? It depends on thecircumstances of the case. But if a treaty applies, the passenger need not prove the airlinewas negligent at all. If a treaty applies, the passenger need only prove that his injuries werethe result of an "accident."This project deals with the study of some contemporary issues in the aviation law. Ithighlights the continuing role of jurists and scholars in Aviation law for developing the newamendments. It is developed to maintaining international cooperation, high reliabilitystandards, passengers’ safety and liability. 1
  2. 2. Liabilities for international air travel are the integral part of international law these are derivedfrom the protocol to amend the convention. Every contracting state which is a member tothese conventions has to comply with its amendments and protocols along with there statelaw. These protocols are intended for limited liability of an air carrier for personal injury ordeath of a passenger and damage to goods.Violation of Regulations. Sometimes, it turns out that the manufacturer, mechanic, or otherdefendant violated a aviation regulation. In some states, one who violates a regulation isautomatically considered negligent, or "negligent per se." In other states, one who violates aregulation isnt automatically negligent, but the violation is something the jury is allowed toconsider when deciding the question.Details of these conventions and aviation law with some recent examples have beendiscussed well to the point in the paper. Besides these conventions, internationalconventions related to aviation, adhered by India have been brought forward. 2
  3. 3. International LawInternational law is the law of the international community. InternationalLaw, principles, rules, and standards that govern the nations and other participants, inmatters relating to international affairs in their relations with one another. Most internationallaw consists of long-standing customs, provisions agreed to in treaties, and generallyaccepted principles of law, recognized by nations. Some international law is also created bythe rulings of international courts and organizations.The purposes of international law include resolution of problems of a regional or global scope(such as environmental pollution or global warming), Regulation of areas outside thecontrol of any one nation (such as outer space or the high seas), and adoption ofcommon rules for multinational activities (such as air transport or postal service).International law also aims to maintain peaceful international relations when possible andresolve international tensions peacefully when they develop, to prevent needless sufferingduring wars, and to improve the human condition during peacetime.Enforcement of international law is often difficult because nations are sovereign(independent) powers that may put their own interests ahead of those of the internationalcommunity. In addition, the mechanisms of enforcement are young and not well developed.Enforcement may be effectively achieved, however, through the actions of individual nations,agencies of international organizations such as the United Nations (UN), and internationalcourts. The United Nations Security Council can authorize economic sanctions, diplomaticsanctions, or military force to maintain or restore international peace and security.International law began as a system governing the relations among sovereign states, andstates have always been the primary legal entities affected by international law. As the globalsystem has become more complex, however, international law has come to recognize andregulate international organizations, businesses, non-profit entities, and individuals. Theemergence of international human rights law and, more recently, international criminal lawreflects the fact that individuals today are direct subjects of international law in certainrespects. 3
  4. 4. Modern international law began to develop with the rise of national states in Europe after the15th century, when the basic ideas of national territory and jurisdiction were established. In1625, building on the work of previous legal writers, the Dutch jurist Hugo Grotius publishedhis celebrated treatise De Jure Belli ac Pacis (On the Law of War and Peace). Grotiusargued that existing customs governing the relations between nations had the force of lawand were binding unless contrary to natural justice or the law of nature (natural law), animmutable higher law governing all human conduct. Grotius’s influence on internationalaffairs and the settlement of wars was great, and he is sometimes called the father ofmodern international law. His ideas became the cornerstone of the international system asestablished by the Peace of Westphalia (1648), a treaty that ended the Thirty Years’ War.Other scholars and statesmen further described and developed the basic rules ofinternational law, among them the Dutch jurist Cornelis van Bynkershoek and the Swissdiplomat Emmerich de Vattel. Vattel’s book, Le droit des gens (1758; Law of Nations), greatlyinfluenced the framers of the Constitution of the United States with its ideas of natural lawgoverning the behaviour of states. Over time scholars gave increasing emphasis to the ideaof state sovereignty, so that by the end of the 19th century the theoretical foundation ofinternational law had shifted from natural law to a strictly consensual approach known aspositivism. Positivism claims that each nation is bound only by the international rules that itfreely accepts to limit its otherwise unlimited freedom of action. The clash between positivistsand adherents of natural law continues today. Conflict is most pronounced over the issue ofwhether there are fundamental “higher norms” of international law, a principle called juscogens, that sovereign state are obliged to respect.THE MODERN SYSTEM:Modern international law stems from three main sources: Treaties, Customs, and TheGenerally Accepted Principles of law derived from national legal systems throughout theworld. International organizations also play an important role in the formation of internationallaw. 4
  5. 5. Treaties:Treaties are written agreements between two or more sovereign states. Internationalorganizations may also be given the capacity to make treaties, either with sovereign states orother international organizations. Treaties may be known by many other names—forexample, agreement, convention, protocol, pact, and covenant—but the name chosengenerally does not affect the legal status of the agreement. As long as the parties intend thetext to be binding, it is a treaty. Treaties may incorporate rules of custom or develop new law.The present system of international law remains largely consensual and centered on thesovereign state. It is within the discretion of each state to participate in the negotiation of, orto sign or ratify, any international treaty. Likewise, each member state of an internationalorganization such as the UN is free to ratify any convention adopted by that organization.Treaty law thus is created by the express will of states.Customary Law:Customary international law is unwritten and derives from the actual practices of nations overtime. To be accepted as law, the custom must be long-standing, widespread, and practicedin a uniform and consistent way among nations. One example of customary international lawis a nation’s right to use the high seas for fishing, navigation, over flight, and submarines.Treaties represent another source of customary law. Although treaties generally bind onlythose countries that ratify them, customs may be deduced from the rules and statementscontained in treaties. These new customs may be considered binding even on those statesthat did not sign and ratify the original treaty. Whether or not they are embodied in a writtentreaty, customs become part of international law because of continued acceptance by thegreat majority of nations.Some customary international law has been codified in recent years. For example, theVienna Convention on the Law of Treaties, which was approved in 1969 and took effect in1980, codified the customary law that treaties between sovereign states are binding on theirsignatories and must be followed in good faith. 5
  6. 6. General Principles:The phrase “general principles of law” appeared in the statute of the Permanent Court ofInternational Justice, established in 1921, three years after the end of World War I (1914-1918). The court was directed to decide disputes brought before it on the basis of existingtreaty law and customary international law. Some of the diplomats and lawyers drafting thestatute of the court feared, however, that disputes might arise over new international issuesfor which there would be no settled custom or applicable treaty. They decided, and thenations voting for the statute agreed, to add a third source of law—“general principles of lawrecognized by civilized nations”—to allow the court to draw upon widely recognized legalprinciples in national law. In this way, the court would not have to refuse to settle a disputebecause of the absence of international law. General principles that have been applied bythe court and its successor, the United Nations International Court of Justice, include the“clean hands” doctrine (it is improper to accuse someone of misconduct that the accuser hasalso engaged in), the principle that individuals should not be a judge in their own dispute, andthe principle of res judicata (a case that is decided cannot be tried again).International Courts and Organizations:Judicial decisions rendered by international courts are important elements in identifying andconfirming international legal rules. The most important international courts are the UNInternational Court of Justice, which mainly handles legal disputes between nations, and theInternational Criminal Court, which prosecutes individuals for genocide, war crimes, andother serious crimes of international concern. Resolutions and decisions of the UN and otherinternational organizations now also have a great impact on the views and practices ofsovereign states, sometimes leading to rapid formation of customary international law. Stateshave given a very few international organizations, such as the European Union and the UNSecurity Council, the power to enact directly binding measures.The first international organizations emerged in the 19th century. Technological advancessuch as the telegraph and the telephone, together with a rise in international trade, created aneed for permanent international institutions to regulate problems that exceeded nationalboundaries. The earliest organizations of this type were specialized bodies such as theInternational Telegraphic Union (1865) and the Universal Postal Union (1874). 6
  7. 7. After World War I European countries created the League of Nations, an organization with ageneral mandate to maintain peace and prevent war. The League’s covenant was part of theTreaty of Versailles signed in 1919 to officially end the war. Pursuant to provisions in thecovenant, the Permanent Court of International Justice was established in 1921 as theworld’s first international court. Its role was to decide international disputes that werevoluntarily submitted to the court by the nations involved, and to issue advisory opinions ondisputes referred to it by the League. Although the court helped to develop international law,its judges were hampered by the lack of universal agreement on many aspects ofinternational law.The onset of World War II in 1939 proved the League of Nations ineffective in preventinghostilities. Equally unsuccessful was the Pact of Paris, also called the Kellogg-Briand Pact, amultilateral treaty renouncing the use of war that had been signed in 1928 and ultimatelyratified by more than 60 nations, including Germany and Japan. After World War II ended in1945 the United Nations replaced the League of Nations, and the International Court ofJustice succeeded the Permanent Court of International Justice.The United Nations Charter created elaborate machinery for maintaining peace and securityand for solving disputes among nations. It also specifically directed the General Assembly toencourage the progressive development and codification of international law. To carry outthis task, the General Assembly created two subsidiary organs: The International LawCommission (1947) and The Commission on International Trade Law (1966).Over the years the International Law Commission has prepared drafts of treaties codifyingand modernizing a number of important topics of international law, including the law of thesea, diplomatic relations, consular relations, law of treaties between nations, succession ofstates in respect to treaties, law of treaties between nations and international organizations,immunity of states from the jurisdiction of other states, and the law of internationalfreshwaters.The Commission on International Trade Law drafts texts on laws concerning internationalcommerce and economic development. Upon acceptance by the General Assembly, draftsfrom the commissions usually are submitted to international conferences called by the UN foradoption of the respective conventions. 7
  8. 8. In some instances, the UN has organized conferences to discuss major international issuesor to negotiate treaties without prior proposal by the International Law Commission. The mostimportant example was the third UN Conference on the Law of the Sea, which terminated itswork in 1982. The conference adopted a convention (which came into force in 1994)governing all aspects of the peaceful use of the oceans, including territorial boundaries,navigational rights, and economic jurisdiction (see Freedom of the Seas). Another example isthe 1992 UN Conference on Environment and Development, held in Rio de Janeiro, Brazil,and informally known as the Earth Summit. The conference produced two major treaties: theConvention on Biological Diversity, which seeks to preserve the world’s biological diversityand promote the sustainable use of its components; and the Framework Convention onClimate Change, which seeks to limit industrial emissions of gases leading to globalwarming. Sometimes the UN convenes major conferences to assess progress and problemsconcerning a specific topic, without adopting a new agreement. Such conferences have beenheld on human rights and on the status of women worldwide.A landmark in the development of international law occurred in 1998 at a UN diplomaticconference in Rome, Italy, when 120 countries adopted a treaty to establish the world’s firstpermanent international criminal court. Officially established in 2002, the InternationalCriminal Court (ICC) operates independently of the United Nations and has the power toinitiate investigations and prosecutions of war criminals, including those accused ofgenocide, crimes against humanity, and other serious crimes. Unlike previous war crimestribunals, such as those created in response to atrocities in the former Yugoslavia and inRwanda, the ICC’s jurisdiction is not limited to specific conflicts.INTERNATIONAL LAW AND NATIONAL LAW:Every nation is expected to obey international law. Some nations make international lawautomatically part of the law of their land. The scope of international law is vast. Nearly everymatter of legal regulation within a nation has some international counterpart. Over the lastcentury, advances in communications technology, growth in global trade and travel, andthe advent of weapons of mass destruction have led to an enormous expansion in the rangeof topics regulated by international law. In addition to the classic matters of diplomacy, war 8
  9. 9. and peace, trade, and territorial boundaries, international law now covers matters as diverseas environmental protection, human rights, nuclear testing, war crimes, outer space, childcustody, recognition of wills and testaments, exchange of prisoners, and protection ofarchaeological sites and art treasures. This section discusses several major areas ofinternational law, including peace and security, human rights, the environment, and theglobal commons.Some nations make international law automatically part of the law of their land.In cases involving international law, U.S. state and federal courts presume that U.S. lawconforms to international law; such an attitude has been urged consistently by the SupremeCourt of the United States. In some countries, such as the United Kingdom, and Indiatreaties do not become effective in national law until they are enacted by Parliament. In othercountries, a treaty or customary international law is given constitutional status superior tonational legislation. How a sovereign state adopts and applies international law is generallyleft to its discretion, so long as it conforms to the law in the end.Whatever the constitution or legal system of a nation, it cannot use its domestic law as anexcuse to breach an international agreement or violate an international rule. This was madeclear during the war crimes trials held in Nürnberg, Germany, following World War II. TheNürnberg tribunals rejected the defense that certain acts, such as the killing of prisoners ofwar, were permitted under the domestic laws of Nazi Germany. The tribunals held that suchlaws were null and void because they contravened the generally valid rules of warfare. It alsoheld that the individuals responsible for issuing and executing such laws were criminallyresponsible for grave breaches of international law. Today, international human rights courtsoften declare national laws incompatible with international rules and may awardcompensation to those whose rights have been violated.MATTERS OF INTERNATIONAL CONCERN:The scope of international law is vast. Nearly every matter of legal regulation within a nationhas some international counterpart. Over the last century, advances in communicationstechnology, growth in global trade and travel, and the advent of weapons of mass destructionhave led to an enormous expansion in the range of topics regulated by international law. Inaddition to the classic matters of diplomacy, war and peace, trade, and territorial boundaries, 9
  10. 10. international law now covers matters as diverse as environmental protection, human rights,nuclear testing, war crimes, outer space, child custody, recognition of wills and testaments,exchange of prisoners, and protection of archaeological sites and art treasures. This sectiondiscusses several major areas of international law, including peace and security, humanrights, the environment, and the global commons.The Global Commons:Large areas of the globe and beyond do not and legally cannot belong to any nation: most ofthe oceans and their resources, Antarctica, Earth’s atmosphere, outer space, and theMoon and other natural objects in space. These areas are known collectively as theglobal commons. The absence of political sovereignty for these areas means thatinternational regulation is required to avoid conflict over them and to protect them fromoveruse, pollution, and other harm. International agreements for these areas are generallyaccepted as providing the legal framework for all those who conduct activities in them someof them are Aviation Law; Maritime Law; Freedom of the Seas.International Law in AviationThe importance of modern aviation was recognized during World War II, when a conferencewas convened in Chicago in 1944 to discuss regulation of post-war international civilaviation. The resulting Chicago Convention of 1944 codified public international aviation law.A similar arrangement in traffic rights (to pick up and set down passengers, cargo, and mail)was not adopted, and bilateral negotiations had to be carried out to effect sucharrangements. The American principle of “freedom of the air” and the British principle of“order in the air” were reconciled in 1946 in Bermuda at a meeting between the UnitedStates and Britain. Subsequent bilateral agreements are based on the so-called BermudaPrinciples covering the regulation of routes, capacity, and tariff.Another outcome of the Chicago conference was the International Civil Aviation Organization(ICAO), which was formally established in 1947 as an agency of the United Nations (UN) tofoster development and promote cooperation in international civil aviation. The organizationhas a legal committee that is responsible for producing treaties, conventions, and protocolsin those areas of aviation in which uniformity is desirable. 10
  11. 11. A basic agreement in international aviation law is the Warsaw Convention of 1929. Thisconvention provided for presumptive but limited liability of an air carrier for personal injury ordeath of a passenger and damage to goods in international air carriage. The Hague Protocolwas adopted in 1965 Constituting a series of amendments to the Warsaw Convention. Thisso-called Montréal Agreement was then incorporated in airline tariffs, which were acceptedby the national Civil Aeronautics Board (CAB). A new treaty, the Guatemala Protocol to theWarsaw Convention, was enacted. The protocol provided for absolute liability TheGuatemala Protocol was later amended to provide that the limit would be 100,000 SpecialDrawing Rights (units of international monetary exchange administered by the InternationalMonetary Fund).The ICAOs legal committee, in 1963, produced the Tokyo Convention, dealing with offencescommitted on aircraft. The many aircraft hijackings since 1968 brought pressure to ratify thetreaty, and in May 1969 the U.S. Senate consented to the conventions ratification. Morestringent security measures for international flights were called for in an amendment to theChicago Convention adopted by the ICAO council in 1985.Air Space and Outer Space in IndiaAll countries have aviation legislation designed to conform to the international rules. In Indiavarious laws and acts have been framed by union government to regulate the aviation sector.Following are the five laws and acts which govern the aviation security in India. • The air craft act, 1934 • Aircraft rules 1937 • Anti hijacking act 1982 • Anti- hijacking (amendment) act, 1994 • Air safety regulationsThe air safety in India is regulated by suppression of unlawful acts against the safety of civilaviation act 1982 and the suppression of unlawful acts against the safety of civil aviation(amendment) act, 1994. These acts were made by the government to comply with theMontréal convention, 1971 (convention for the suppression of unlawful acts against thesociety of civil aviation, 1971). 11
  12. 12. Beside these regulations and acts, India has also signed various international conventionsrelated to aviations related to aviation and hence India has to abide by the terms andconditions of them. 1. Protocol to amend the convention for the unification of certain rules relating to international carriage by air (the Warsaw convention, 1929) 2. The international air services transit agreement, 1944 3. Protocol on the authentic trilingual text of the convention on international civil aviation, 1944 4. Protocol on the authentic Quadra lingual text of the convention on international civil aviation, 1944 5. The Rome convention, 1948 6. The Rome convention, 1952 7. The Hague protocol, 1995 8. The Guadalajara convention, 1961 9. The Tokyo convention, 1963 10. The Montréal inter-carrier agreement , 1966 11. The Hague convention, 1970 12. The Montréal convention, 1971 13. The Guatemala city protocol, 1971 14. The additional protocol no 1, 2, 3 and 4 (1975) or Montréal protocol No.1,2,and 3(1975) 15. The Montréal protocol ,1988 16. The Montréal convention,1991 17. The Montréal convention, 1999 18. The cape town convention, 2001Aviation Liabilities and the AmendmentsThe Unification of Certain Rules Relating to International Carriage by Air (WarsawConvention) which established between member States a uniform liability framework for aircarriers at a time when aviation was a new and burgeoning industry. 12
  13. 13. The Warsaw Convention was subsequently amended seven times, unfortunately without theuniformity in ratification by States enjoyed by the original Warsaw Convention. Theamendments gave rise to what is known as the Warsaw System, whereby the rules forliability in respect of international carriage depend upon the iteration of the WarsawConvention adopted by States of destination and departure for the carriage concerned.A basic agreement in international aviation law is the Warsaw Convention of 1929 which wassigned on October 12, 1929. This convention provided for presumptive but limited liability ofan air carrier for personal injury or death of a passenger and damage to goods ininternational air carriage. Liability for death or personal injury to a passenger was limited to$8,300. The Hague Protocol was adopted in 1965. Constituting a series of amendments tothe Warsaw Convention, the protocol doubles the liability limit. The United States was not aparty to the conference at Warsaw that produced the Warsaw Convention, but adhered to itin 1934. By 1969 it had not ratified or adhered to The Hague Protocol. In 1965, indeed, theUnited States gave notice of its intention to denounce the Warsaw Convention because of itslow limit of liability. The Americans withdrew this notice, however, when air carriers, underthe auspices of the International Air Transport Association (IATA), a trade association,agreed to raise this limit to $75,000 with respect to passengers travelling to or from orpassing through the United States. This so-called Montréal Agreement was thenincorporated in airline tariffs, which were accepted by the national Civil Aeronautics Board(CAB). A new treaty, the Guatemala Protocol to the Warsaw Convention, was enacted. Itwas signed by the United States in 1970. The protocol provided for absolute liability on thepart of the airline as well as for an unbreakable limitation of damages to $100,000. TheGuatemala Protocol was later amended to provide that the limit would be 100,000 SpecialDrawing Rights (units of international monetary exchange administered by the InternationalMonetary Fund). This new treaty, entitled the Montréal Protocols 3 and 4, was deniedratification by the U.S. Senate in 1983.The protocol, in case of international transportation, specifies that an air carrier’s liability for a‘negligent act’ causing personal injury to one of its passengers is limited to approximately US$ 8,300 for each passenger. If the air carrier is guilty of ‘wilful misconduct’ or if a specialcontract has been entered into, such a limitation will not apply. 13
  14. 14. Protocol to Amend the Convention for the Unification of Certain Rules Relating toInternational Carriage by Air (The Warsaw Convention, 1929)The Warsaw convention requires the injured party to bring a lawsuit within two years of theaccident or the action will be dismissed. Also, the air carrier will not be liable if the carrier canprove that due care was taken. This act applies to injuries sustained on the plane or whileembarking or disembarking from an international flight.The Warsaw convention defines an accident as unexpected or unusual event that is externalto the passenger. The definition of wilful misconduct depends in some measure which courtscan decide upon. However, some common factors that court will consider are 1. knowledge that an action will probably result in injury or damage 2. reckless disregard of the consequences of an action or 3. Deliberately failing to discharge a duty related safety.Under Warsaw convention, lawsuits can be filed in one of four possible places 1. The country where the passenger purchased the ticket 2. The country of the passenger final destination 3. The country where the airline is incorporated or 4. The country where the airline maintains its principle place of business.The Rome convention of 1952The convention on damage caused by the foreign aircraft to third parties on the surfaceincludes the principle of absolute liability of the aircraft operator for damage caused to thirdparties on the surface but places a limitation on the amount of compensationExpressed in poincare gold francs and calculated in relation to the aircraft concerned.However, a diplomatic conference convened in 1978, under ICAO auspices adopted aprotocol for the amendment of Rome convention. The basic feature of the protocol is asubstantial increase in the limits of liability and expression of the limits in the Special DrawingRights of the IMF (International Monetary Fund) 14
  15. 15. The Hague protocol, 1955The interest of treating independently from the 1929 Warsaw convention, the 1955 protocolto amend the convention for the unification of certain rules relating to international carriageby air, done at the Hague lies in the fact that only about two third of the original memberstates adhere to the protocol.The main difference brought to the 1955convention relating to carriage by air of goods andpassenger is the increase of the carriers revised liability from US $ 8,300 to 16,600.The amended convention applies whenever a carriage occurs within the territories of twostates which adhere to Hague protocol.Another application is when both departure and destination points are with in the territory of asingle state, which is a party to the amended convention, if the contract designates anystopping place outside the territory of the state.When one state is a member of the amended convention while the other is only a member oforiginal Warsaw convention, the latter applies.The Hague protocol excludes the carrier’s defences of neglect pilot-age and negligence inthe handling of the aircraft. Further more, the burden of proof needed to exclude the limitedliability of the carrier is modified from “wilful misconduct” to “intention of case damage or tocause damage recklessly and with knowledge that damage would probably result.Some more technical changes set out in the protocol include the contents of the air waybill,which now requires fewer particular and the 14day written notice by the consignee of the lossor of damage to the goods.The Hague Protocol amends the 1929 Warsaw Convention that the Montreal Convention isdesigned to replace. Until the Montreal Convention gains wide adherence, the Warsawsystem will remain in place between many countries. Accordingly, the Committeerecommends that the Senate advise and consent to the Hague Protocol so that U.S.passengers, shippers, and air carriers, in this interim period, may take advantage of somemodern elements of the protocol, especially those relating to the carriage of cargo. At 15
  16. 16. present, there is uncertainty about whether the United States is a party to the HagueProtocol. This uncertainty arises, in part, from the confusion that results from the patchworknature of the Warsaw system. The 1929 Warsaw Convention has been amended by a seriesof protocols. Some countries are parties only to the Warsaw Convention; others are partiesonly to particular protocols amending the Convention. Recent litigation in federal court hashighlighted this confusion. In 2000, the U.S. Court of Appeals for the Second Circuit held inChubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301 (2d Cir. 2000), cert. denied, 533 U.S. 928(2001), that the United States and South Korea did not have treaty relations with respect tointernational air carriage rules because the two countries were not parties to common piecesof this regime.Ratification of the Hague Protocol will serve to clarify treaty relationships immediately with anumber of countries with which the status of our treaty relationships under the Warsawsystem may be unclear in light of the Chubb case. This includes countries with which we mayhave no treaty relationships at present. It also includes countries with which our only currenttreaty relationship may be the relatively antiquated 1929 Warsaw Convention, unamended byany of the subsequent protocols. With respect to this latter group of countries, ratification ofthe Hague Protocol is useful because the Protocol streamlines the Warsaw Convention scumbersome documentation requirements for cargo transportation. In the short- term, havingcargo shipments to and from such countries governed by the Hague Protocol rather than bythe unamended Warsaw Convention will benefit shippers.The relevance of the Hague Protocol will wane as more countries become parties to theMontreal Convention, which provides updated rules governing air carriage. Where twocountries are parties both to the Montreal Convention and to prior conventions governinginternational air carriage, the Montreal Convention, by its terms, supersedes the earlierinstruments. The Committee hopes that United States ratification of the Montreal Conventionwill serve to encourage other countries also to become parties to it. The Committeeencourages the Administration to undertake active diplomatic efforts to promote furtherratifications. 16
  17. 17. The Guadalajara convention 1961A diplomatic conference was held in Guadalajara, Mexico in September 18, 1961, for thesole purpose of supplementing the Warsaw convention to address indirect carriage of cargo.It extends the Warsaw convention beyond the carrier identified in the contract of carriage.In operations involving indirect carriage of cargo, consignor purchases transportation fromone carrier, such as freight forwarder or consolidator but the transportation is provided byanother carrier in accordance with an agreement between the carriers.The convention rendered to the actual carrier, with respect to the carriage he performs, thesame right and obligation as the carrier under the Warsaw convention or the Warsawconvention as amended by the Hague protocol.The Montréal inter carrier agreement 1966The Montréal inter carrier agreement ensured that accident victims on flight to or from thesignatory states are compensated for up to US $ 75,000 of proven damages, whether or notthe negligence of the carrier was the cause of the accident.The Guatemala City protocol 1971The Guatemala City protocol, 1971 was the result of further efforts to advance the cause ofpassenger rights that were reflected in the Hague protocol. The Guatemala City protocol heldcarriers strictly liable for upto US $ 100,000 of proven damage in the event of passengerdeath or injury, but that amount constituted an unbreakable limit on liability per passenger,even if the carrier engaged in wilful misconduct. However this protocol expressly recognisedthe right of states to supplement passenger recoveries through state legislated insuranceplans.The additional protocol no 1, 2, 3, and 4 (1975) or Montréal protocol no. 1, 2 and 3(1975).The diplomatic conference on Air Law was held in 1975 in Montréal, during which morefavourable and more comprehensively revision of the Warsaw convention was made. The 17
  18. 18. 1975 additional protocol No 1 and 2 are related solely to the conversion from a gold standardto the Special Drawing Right (SDR) standard for purpose of calculating all quantitativelimitations on liability under the Warsaw convention and under the Warsaw convention asamended by The Hague protocol. The SDR is an artificial basket currency developed by theinternational monetary fund for internal accounting purpose.The key provisions of the Guatemala City protocol were incorporated into additional protocolNo 3. in translating the Guatemala city protocol provisions into the additional protocol NO 3,the only change in content was the replacement of the gold standard with currencyconversion formula based on SDR.In the addition protocol; no 4 the outmoded cargo documentation provisions of the Warsawconvention were eliminated, there by facilitating the application of electronic commerce tointernational air cargo. For example, the additional protocol no 4 eliminated the need forconsignor of cargo to complete detailed air waybills prior to consigning goods to a carrier. Inplace of such detailed airway bills, consignor could use simplified electronic records offacilitate shipments.Article 22 of the Convention shall be deleted and replaced by the following:-"Article 22 1. In the carriage of passengers the liability of the carrier for each passenger is limited to the sum of 8300 Special Drawing Rights. Where, in accordance with the law of the court seized of the case, damages may be awarded in the form of periodic payments, the equivalent capital value of the said payments shall not exceed this limit. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability. 2. In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of 17 Special Drawing Rights per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared 18
  19. 19. sum, unless he proves that that sum is greater than the consignors actual interest in delivery at destination.3. As regards objects of which the passenger takes charge himself the liability of the carrier is limited to 332 Special Drawing Rights per passenger.4. The sums mentioned in terms of the Special Drawing Right in this Article shall be deemed to refer to the Special Drawing Right as defined by the International Monetary Fund. Conversion of the sums into national currencies shall, in case of judicial proceedings, be made according to the value of such currencies in terms of the Special Drawing Right at the date of the judgment. The value of a national currency, in terms of the Special Drawing Right, of a High Contracting Party which is a Member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund, in effect at the date of the judgment, for its operations and transactions. The value of a national currency, in terms of the Special Drawing Right, of a High Contracting Party which is not a Member of the International Monetary Fund, shall be calculated in a manner determined by that High Contracting Party. Nevertheless, those States which are not Members of the International Monetary Fund and whose law does not permit the application of the provisions of paragraphs 1, 2 and 3 of Article 22 may, at the time of ratification or accession or at any time thereafter, declare that the limit of liability of the carrier in judicial proceedings in their territories is fixed at a sum of 125 000 monetary units per passenger with respect to paragraph 1 of Article 22; 250 monetary units per kilogram with respect to paragraph 2 of Article 22; and 5 000 monetary units per passenger with respect to paragraph 3 of Article 22. This monetary unit corresponds to sixty-five and a half milligram’s of gold of millesimal fineness nine hundred. These sums may be converted into the national currency concerned in round figures. The conversion of these sums into national currency shall be made according to the law of the State concerned." 19
  20. 20. The Montréal protocol 1988The protocol was signed at Montréal was signed at Montréal on February 24, 1988 came intoforce as of august 6, 1989, this protocol adds to the definition of ‘offence’ given in theMontréal convention of 1971, including actions that are likely to endanger airport safety. Itestablishes universal jurisdiction over the offender and applies the Montréal convention’srules of custody, extradition, and prosecution.The Montréal convention 1999The Montréal convention 1999 eventually replaced the Warsaw convention 1929 and anumber of subsequent conventions and protocols which together from the ‘Warsaw system ‘.This system provides an international treaty frame work for liability rules governingcommercial international aviation travel, and for documentation such as tickets and airwaybills. Compensation arrangements are provided for passengers, baggage and cargo affectedby aircraft accidents. The convention substantially improves consumer protection ininternational carriage by air and modernises the smooth flow of passengers, baggage andcargo. Most importantly, it improves the international regime for air carriers, liability byproviding a form of unlimited and more equitable passenger compensation governing injuryor death: some of the silent features of the convention include: • The convention incorporates many of the provisions of MP4 relating to cargo, • Incorporation most of the liability provisions of the IATA intercarrier agreements the convention establishes a two-tire liability system, with strict liability upto 100,000 SDRs and presumptive liability in an unlimited amount. • Unless special value is declared, loss and damage and delay of baggage results in maximum liability of 1000 SDRs; destruction, loss, damage or delay of cargo results in liability capped at 17 SDRs per kilogram. • Carrier must maintain adequate insurance to cover their liability • The conventions liability limits shall be reviewed every five years • The claimant may recover court costs and attorney fee, if the amount of damage award exceeds any written settlement offer made within six months of the accident, but before suit is commenced. • The convention establishes a ‘fifth jurisdiction’ for personal injury or death (oddly, not cargo and baggage) actions. 20
  21. 21. • There is no carrier penalty for non compliance with the new documentation requirements. • Arbitration clauses may be included in cargo air way bills. • Punitive, exemplary or other non-compensatory damage ‘ are not recoverable; and • There is no provision for recovery of emotional damagesExample: How does the conventions applicable to the recent accidentsSome Flight 1549 passengers have reportedly"lawyered-up." What legal claims do they have?Putting aside the question of whether pursuing theclaims is the right thing to do -- some say they shouldsimply count their blessings -- do the passengers haveany claims to begin with?Well, it depends on the law that applies. For example,under California law, a passenger would first have to show that the accident was caused bythe airlines negligence. From what is known so far, that seems unlikely. If, however, thepassenger succeeds in proving negligence, he would be entitled to compensation for anyphysical injuries he sustained as well as compensation for the emotional distress hesuffered. What if the passenger suffered just emotional distress and no physical injuries?Again using state law as an example, if the airline was negligent, the passengercould recover for the emotional distress, as long as that the emotional distress was"serious." (Not much question about that.)What if the passenger had a foreign destination listed someplace on his itinerary? Thatwould change everything. Even though the flight was domestic, the Montreal Convention, aninternational treaty governing airline liability, would trump state law. The passenger wouldnot need to prove the airline was negligent to recover. It is enough that a passengersinjuries were the result of an "accident." The airline would be automatically liable. But underthe Convention, the passenger would not be entitled to compensation for mental injuries,regardless of how "serious", unless he also suffered at least some physical injury. 21
  22. 22. Overview of the Warsaw Convention and the Montreal Protocol 4The Warsaw Convention was drafted when the airline industry was in its infancy. It was theproduct of two international conferences, the first held in Paris in 1925 and the second inWarsaw in 1929 and four years of work by the “interim Commite International TechniquedExperts Juridique Aeriens” (CITEJA) formed at the Paris Conference. The Convention hadtwo primary goals:To establish uniformity in the aviation industry with regard to ``the procedure for dealing withclaims arising out of international transportation and the substantive law applicable to suchclaims, as well as with regard to documentation such as tickets and waybills;The clearly the overriding purpose was to limit air carriers’ potential liability in the event ofaccidents. The liability limit was believed necessary to allow airlines to raise the capitalneeded to expand operations and to provide a definite basis upon which their insurance ratescould be calculated.The nations drafting this provision had a direct interest in establishing liability limits, sincenearly all existing airlines were either owned or heavily subsidized by the various contractingstates. The drafters also believed that a liability limit would lessen litigation.According to the once state Constitution, it is the duty of the court to enforce treaties of theStates whatever they might be, and the Warsaw Convention remains the supreme law of theland. The current Warsaw Convention requires that an air waybill must be made out by theconsignor and must be signed and handed over, in triplicate, with the freight. Art. 6 (1).Failure to comply with Art. 6 and or particulars of Art. 8 will result in a loss of liability limits(US$9.07 per lb.)The Warsaw Convention NOTE: Montreal Protocol 4 Changesthe Warsaw Convention since 1929. Generally, the Convention applies to air carriagebetween the territories of two High Contracting Parties to the Convention. For example, aircarriage between the Untied States and England. The Warsaw Convention governs the 22
  23. 23. relationships between the shipper/beneficial cargo owner and the airline or indirect air carrier.Warsaw governs shipments from airport to airport, not beyond the airport area. Warsawrequires that an air waybill must be made out by the consignor and must be "signed" and"handed over," in triplicate, with the freight. Art. 6 (1). Failure to comply with Art. 6 and/orparticulars of Art. 8 will result in a loss of liability limits ($9.07 per lb.) for the airline or ICA.The pre-MONTREAL PROTOCOL 4. Case Law suggests that a hyper-technical approachmust be taken with respect to Warsaw. Warsaw is a treaty and traditional methods of judicialinterpretation can only be used when the text of the treaty is unclear.[ref: Indus. v. Pan Am. World Airways, 754 F.2d 106, 108 (2d Cir. 1985); Chan v. Korean AirLines, Ltd., 490 U.S. 122, 134 (1989); Tai Ping Vs. Northwest Air, (1997)].Key Case Issues Under The Former Law Were:_ was an air waybill issued for the subject cargo?_ Does the air waybill receipt a declared value or insurance value?_ Does the air waybill include all of the required particulars?_ Are the Warsaw limits on liability enforceable?Montreal Protocol 4 ChangesThe United States has been a party to the Warsaw Convention since 1929. Generally, theConvention applies Warsaw (NOTE: Montreal Protocol 4 Changes) Major Changes toWarsaw Convention as Amended by the Hague and Montreal Protocol 4. (MONTREALPROTOCOL 4) (Effective March, 1999). On September 28, 1998, the U.S. Senate finallyratified MONTREAL PROTOCOL 4 to the Warsaw Conventional. This amendment to theoriginal 1929 Warsaw Convention has been pending since 1975. Some aspects ofMONTREAL PROTOCOL 4 are certain, like the need for forwarders & indirect air carriers tostart looking up the current value of Special Drawing Rights (SDR) to determine their limitson liability for cargo loss, delay or damage. Other issues are not so clear. While lawyers &courts will attempt to "interpret" MONTREAL PROTOCOL 4, their ability to do so will belimited by the strict construction and plain language approach utilized by Supreme CourtJustice Scalia in writing his decision for the case of Chan vs. Korean Air Lines, Ltd. There are 23
  24. 24. exceptions to this approach, such as ambiguity, but at what point does traditional judicialinterpretation end? According to the U.S. Court of Appeal for the 2nd Circuit in "Tai Ping", (arecent Warsaw Convention case), traditional judicial interpretation ends when "the languageis reasonably susceptible of only one interpretation."Article 5 replaces language requiring that the consignor "make out" and "hand over" an airwaybill with the requirement that an "air waybill shall be delivered" or that "any other meanswhich would preserve a record of the carriage to be performed may, with the consent of theconsignor, be substituted for the delivery of an air waybill." It is this change that clears theway for the use of electronic air waybills. Before MONTREAL PROTOCOL 4 it was clearlyestablished that air carriers were required to issue a "paper" air waybill.In Detail:The Montreal Protocol No. 4, which became effective in the United States on March 4, 1999,amends the Warsaw Convention. Although the Protocol impacts personal injury and baggageclaims, the summary set forth below specifically addresses those substantive changes whichrelate to claims for loss or damage to cargo.1.) Limitation of LiabilityThe Protocol changes the maximum liability limitation from $20 kilogram to 17 SpecialDrawing Rights (SDRs) per kilogram. See Article 22. An SDR is a fluctuating unit of currencydefined by the International Monetary Fund. As of September 13, 1999, one SDR equaled$1.37070 U.S. Dollars, thus, providing for a maximum liability limitation of $23.30 perkilogram. The U.S. conversion rate for an SDR can be found on the IMFs web page locatedat this hot link: SDR RATE TODAYThe Protocol expressly incorporates the 1955 Hague amendments to Warsaw. See Article I.Under those amendments, the carriers maximum liability is based on the weight of the entireshipment if the damaged cargo affects the value of the other cargo covered by the same airwaybill. See Art. 22(c) and Art. 22(b) of Hague Protocol to Warsaw. In other words, if thedamaged piece is an integral part of the entire shipment, then the carrier cannot limit itsliability to the weight of the damaged piece. 24
  25. 25. 2.) Willful MisconductUnder the Protocol, proof of wilful misconduct does not deprive the carrier of the benefit ofthe liability limitation. Prior to this amendment, wilful misconduct provided cargo interests withthe ability to avoid the limitation.3.) Failure to Issue Waybill or List Particulars on WaybillSimilarly, failure to issue a waybill or list certain particulars on the waybill (place of departure,destination, etc.) does not prevent the carrier from benefiting from the Conventions liabilitylimitation. See Article 9.4.) Carriers Can Trade ElectronicallyThe Protocol expressly provides that carriers can go paperless and trade electronically.Article 5 provides that "[a]ny other means which would preserve a record of the carriage tobe performed, may, with the consent of the consignor, be substituted for the delivery of an airwaybill." According to the ATA and IATA, this provision will save carriers approximatelyUS$5-$6 per shipment.5.) Traditional Carrier Defenses & Contributory NegligenceThe Protocol adopts the traditional defenses to carrier liability. The carrier will not be liablefor damages caused by 1) inherent defect or vice of cargo; 2) defective packaging of thecargo; 3) act of war and 4) an act of a public authority with regard to the entry or exit of thecargo; i.e. customs. See Article 18.Under the Convention, contributory negligence may exonerate the carrier wholly or partlyfrom liability only if the jurisdiction recognizes this defense. The Protocol changes thisprovision to provide the Carrier with the defense of contributory negligence regardless ofwhether it is recognized in the jurisdiction in which the action is brought.Other Articles of Importance Modified by MONTREAL PROTOCOL 4Articles 6 & 7 of MONTREAL PROTOCOL 4 retains the language requiring that the airwaybill be "handed over” and "signed." These formalities will continue to complicate "paper" 25
  26. 26. shipments and may further complicate the formalities required to "preserve a record of thecarriage" in accordance with New Article 5.Articles 8 & 9 of MONTREAL PROTOCOL 4 replaces language requiring that "the air waybillshall contain the following particulars”. or the carrier loses the ability to limit his/her liability.Prior to MONTREAL PROTOCOL 4, Article 8 & 9 required that stopping places for the flightbe stated. Under MONTREAL PROTOCOL 4, the air waybill needs only to have "anindication of the places of departure and destination and an indication of the weight of theconsignment" and if the departure and destination are within the territory of a singlecontracting party but stopping in another country, then and only then does the stopping placewithin the territory of another state need to be included. Under MONTREAL PROTOCOL 4,noncompliance with the provisions of Articles 5 to 8 does not appear to result in a loss ofliability limits. (Compare with Art. 3)Article 10 is expanded, giving greater protection to the carrier by making the consignorresponsible for the correctness of the particulars relating to the cargo and make theconsignor responsible for any loss or damage which an irregularity, incorrectness orincompleteness of those particulars causes to the air carrier or to any third party to whom thecarrier is liable. (Dangerous Goods).Article 11 contains a significant change by making statements in the air waybill relating toquantity, volume and condition of the cargo void as prima facie evidence against the carrierexcept in so far as they have been and are stated in the air waybill to have been checked by[the carrier] in the presence of the consignor or relate to the apparent condition of the cargo.This will mean that air carriers that receive unit load devices said to contain certain goodswhich show up short at destination without any obvious record of tampering will notautomatically be the responsibility of the air carrier and a shipper may be put to his difficultproof to show the cargos quantity and condition at origin. An air carrier will still beresponsible for the stated weight and apparent condition of the cargo. Note however thatcargo inside unit load devices or inside crates will not be apparent to the air carrier at time ofreceipt. 26
  27. 27. Article 18 of MONTREAL PROTOCOL 4 expressly adopts the traditional exceptions to carrierliability:_ Inherent defect, quality or vice of that cargo_ Defective packing of that cargo_ An act of war or an armed conflict_ An act of public authorityMONTREAL PROTOCOL 4 also expands and clarifies the damage presumption stating thatif "for the purpose of loading, delivery or transhipment, any damage is presumed, subject toproof to the contrary, to have been the result of an event which took place during the carriageby air."Article 22 of MONTREAL PROTOCOL 4 Changes the old damage limit of US$20.00 per kiloor US$9.07 per lb. to 17 Special Drawing Rights (SDR) a unit of currency determined by theInternational Monetary Fund. The new cargo liability limit will fluctuate with currencyvaluations and is about US$23.15 per kilo or US$10.50 per lb. (Refer to www.cargolaw.comfor the current SDR exchange rate).Article 25 of MONTREAL PROTOCOL 4 deletes the vagaries of a "willful misconduct," butallows a shipper to recover beyond the limits of liability if the claimant can prove that "thedamage resulted from an act or omission of the carrier, his servants or agents, done withintent to cause damage or recklessly and with knowledge that damage would probably result;provided that the servant or agent was acting within the scope of his employment", but as topassengers & baggage only. 27
  28. 28. SummaryAt present 86 countries have ratified the Montreal Convention.The Montreal Convention aims to modernise and consolidate the Warsaw System, to ensurethe protection of the interests of consumers with respect to compensation and promote thedevelopment of international air transport operations and the smooth flow of passengers,baggage and cargo.To this end it:• Implements a two-tier liability system in respect of passenger injury and death.• Updates liability caps for loss arising from lost or damaged baggage and cargo.• Makes provision for electronic ticketing and cargo documentation.• Extends the jurisdictional grounds on which claims for personal injury and death may be brought.• Makes provision for liability limits to be reviewed at five year intervals.The General Aviation Revitalization Act, known as “GARA,” immunizes general aviationmanufacturers from lawsuits for defectively designed or manufactured aircraft that are morethan 18 years old. Regardless of how serious the defect, if the aircraft is more than 18 yearsold, an injured victim cannot sue its manufacturer.Amendments, protocols and conventions are prepared to establish uniformity in the aviationindustry with regard to ``the procedure for dealing with claims arising out of internationaltransportation and the substantive law applicable to such claims, as well as with regard todocumentation such as tickets and waybills.The common civil aviation law is imperative, as today the air lines, passengers,manufacturers and airports are global. The existing common civil laws need amendments tocope up with the growth of the aviation industry especially after globalisation. Most of the textis vintage old and need to be redrafted in order to support technical growth. 28
  29. 29. References:www.icao.comwww.iata.comMonthly economic analysisStudies in Aerospace Law Dr. Nagendra Singh & S.Bhattwww.aerospacelaw.comwww.aviationlawers.comThe Law Offices of Countryman & McDanielInternational Law;Private; Encarta Reference LibraryLeague of Nations;United Nations. SIREESH P. FLYING INSTRUCTOR (UAV’S) AIRCRAFT RESEARCH AND DESIGN CENTER, HINDUSTAN AERONAUTICS LIMITED Email id:, Mobile no: +91- 9740287428 29