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LIABILITIES IN THE AVIATION INDUSTRY


                                                                          SIREESH P.
                                                                         UAV- Flying instructor
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INTRODUCTION


An airline's liability for a passenger's injury or death is most often determined by state law.
But if the passenger's trip includes a stop in a foreign country, then the airline's liability is
controlled entirely by international treaties.         The treaties are known as the Warsaw
Convention and the Montreal Convention.


The treaties also govern a passenger's claims for injuries occurring on a domestic flight, as
long as a foreign destination was on the passenger's itinerary. That means that state law
may govern the claims of one victim of an airline disaster, while a treaty may govern the
claims of his friend in the very next seat. Because different law applies, one victim (or his
family) might be entitled to compensation from the airline and the other not. Making us think
Which is more favourable for the victim -- state law or the treaties? It depends on the
circumstances of the case. But if a treaty applies, the passenger need not prove the airline
was negligent at all. If a treaty applies, the passenger need only prove that his injuries were
the result of an "accident."


This project deals with the study of some contemporary issues in the aviation law. It
highlights the continuing role of jurists and scholars in Aviation law for developing the new
amendments. It is developed to maintaining international cooperation, high reliability
standards, passengers’ safety and liability.



                                                                                                        1
Liabilities for international air travel are the integral part of international law these are derived
from the protocol to amend the convention. Every contracting state which is a member to
these conventions has to comply with its amendments and protocols along with there state
law. These protocols are intended for limited liability of an air carrier for personal injury or
death of a passenger and damage to goods.


Violation of Regulations. Sometimes, it turns out that the manufacturer, mechanic, or other
defendant violated a aviation regulation. In some states, one who violates a regulation is
automatically considered negligent, or "negligent per se." In other states, one who violates a
regulation isn't automatically negligent, but the violation is something the jury is allowed to
consider when deciding the question.


Details of these conventions and aviation law with some recent examples have been
discussed well to the point in the paper. Besides these conventions, international
conventions related to aviation, adhered by India have been brought forward.




                                                                                                   2
International Law
International   law   is   the     law        of   the      international      community.     International
Law, principles, rules, and standards that govern the nations and other participants, in
matters relating to international affairs in their relations with one another. Most international
law consists of long-standing customs, provisions agreed to in treaties, and generally
accepted principles of law, recognized by nations. Some international law is also created by
the 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 the
control of any one nation (such as outer space or the high seas), and adoption of
common rules for multinational activities (such as air transport or postal service).
International law also aims to maintain peaceful international relations when possible and
resolve international tensions peacefully when they develop, to prevent needless suffering
during 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 international
community. 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 international
courts. The United Nations Security Council can authorize economic sanctions, diplomatic
sanctions, or military force to maintain or restore international peace and security.

International law began as a system governing the relations among sovereign states, and
states have always been the primary legal entities affected by international law. As the global
system has become more complex, however, international law has come to recognize and
regulate international organizations, businesses, non-profit entities, and individuals. The
emergence of international human rights law and, more recently, international criminal law
reflects the fact that individuals today are direct subjects of international law in certain
respects.




                                                                                                         3
Modern international law began to develop with the rise of national states in Europe after the
15th century, when the basic ideas of national territory and jurisdiction were established. In
1625, building on the work of previous legal writers, the Dutch jurist Hugo Grotius published
his celebrated treatise De Jure Belli ac Pacis (On the Law of War and Peace). Grotius
argued that existing customs governing the relations between nations had the force of law
and were binding unless contrary to natural justice or the law of nature (natural law), an
immutable higher law governing all human conduct. Grotius’s influence on international
affairs and the settlement of wars was great, and he is sometimes called the father of
modern international law. His ideas became the cornerstone of the international system as
established 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 of
international law, among them the Dutch jurist Cornelis van Bynkershoek and the Swiss
diplomat Emmerich de Vattel. Vattel’s book, Le droit des gens (1758; Law of Nations), greatly
influenced the framers of the Constitution of the United States with its ideas of natural law
governing the behaviour of states. Over time scholars gave increasing emphasis to the idea
of state sovereignty, so that by the end of the 19th century the theoretical foundation of
international law had shifted from natural law to a strictly consensual approach known as
positivism. Positivism claims that each nation is bound only by the international rules that it
freely accepts to limit its otherwise unlimited freedom of action. The clash between positivists
and adherents of natural law continues today. Conflict is most pronounced over the issue of
whether there are fundamental “higher norms” of international law, a principle called jus
cogens, that sovereign state are obliged to respect.


THE MODERN SYSTEM:
Modern international law stems from three main sources: Treaties, Customs, and The
Generally Accepted Principles of law derived from national legal systems throughout the
world. International organizations also play an important role in the formation of international
law.




                                                                                              4
Treaties:
Treaties are written agreements between two or more sovereign states. International
organizations may also be given the capacity to make treaties, either with sovereign states or
other international organizations. Treaties may be known by many other names—for
example, agreement, convention, protocol, pact, and covenant—but the name chosen
generally does not affect the legal status of the agreement. As long as the parties intend the
text 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 the
sovereign state. It is within the discretion of each state to participate in the negotiation of, or
to sign or ratify, any international treaty. Likewise, each member state of an international
organization 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 over
time. To be accepted as law, the custom must be long-standing, widespread, and practiced
in a uniform and consistent way among nations. One example of customary international law
is 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 only
those countries that ratify them, customs may be deduced from the rules and statements
contained in treaties. These new customs may be considered binding even on those states
that did not sign and ratify the original treaty. Whether or not they are embodied in a written
treaty, customs become part of international law because of continued acceptance by the
great majority of nations.

Some customary international law has been codified in recent years. For example, the
Vienna Convention on the Law of Treaties, which was approved in 1969 and took effect in
1980, codified the customary law that treaties between sovereign states are binding on their
signatories and must be followed in good faith.




                                                                                                 5
General Principles:
The phrase “general principles of law” appeared in the statute of the Permanent Court of
International 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 existing
treaty law and customary international law. Some of the diplomats and lawyers drafting the
statute of the court feared, however, that disputes might arise over new international issues
for which there would be no settled custom or applicable treaty. They decided, and the
nations voting for the statute agreed, to add a third source of law—“general principles of law
recognized by civilized nations”—to allow the court to draw upon widely recognized legal
principles in national law. In this way, the court would not have to refuse to settle a dispute
because of the absence of international law. General principles that have been applied by
the 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 has
also engaged in), the principle that individuals should not be a judge in their own dispute, and
the 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 and
confirming international legal rules. The most important international courts are the UN
International Court of Justice, which mainly handles legal disputes between nations, and the
International Criminal Court, which prosecutes individuals for genocide, war crimes, and
other serious crimes of international concern. Resolutions and decisions of the UN and other
international organizations now also have a great impact on the views and practices of
sovereign states, sometimes leading to rapid formation of customary international law. States
have given a very few international organizations, such as the European Union and the UN
Security Council, the power to enact directly binding measures.

The first international organizations emerged in the 19th century. Technological advances
such as the telegraph and the telephone, together with a rise in international trade, created a
need for permanent international institutions to regulate problems that exceeded national
boundaries. The earliest organizations of this type were specialized bodies such as the
International Telegraphic Union (1865) and the Universal Postal Union (1874).


                                                                                              6
After World War I European countries created the League of Nations, an organization with a
general mandate to maintain peace and prevent war. The League’s covenant was part of the
Treaty of Versailles signed in 1919 to officially end the war. Pursuant to provisions in the
covenant, the Permanent Court of International Justice was established in 1921 as the
world’s first international court. Its role was to decide international disputes that were
voluntarily submitted to the court by the nations involved, and to issue advisory opinions on
disputes 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 of
international law.

The onset of World War II in 1939 proved the League of Nations ineffective in preventing
hostilities. Equally unsuccessful was the Pact of Paris, also called the Kellogg-Briand Pact, a
multilateral treaty renouncing the use of war that had been signed in 1928 and ultimately
ratified by more than 60 nations, including Germany and Japan. After World War II ended in
1945 the United Nations replaced the League of Nations, and the International Court of
Justice succeeded the Permanent Court of International Justice.
The United Nations Charter created elaborate machinery for maintaining peace and security
and for solving disputes among nations. It also specifically directed the General Assembly to
encourage the progressive development and codification of international law. To carry out
this task, the General Assembly created two subsidiary organs: The International Law
Commission (1947) and The Commission on International Trade Law (1966).

Over the years the International Law Commission has prepared drafts of treaties codifying
and modernizing a number of important topics of international law, including the law of the
sea, diplomatic relations, consular relations, law of treaties between nations, succession of
states 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 international
freshwaters.

The Commission on International Trade Law drafts texts on laws concerning international
commerce and economic development. Upon acceptance by the General Assembly, drafts
from the commissions usually are submitted to international conferences called by the UN for
adoption of the respective conventions.

                                                                                              7
In some instances, the UN has organized conferences to discuss major international issues
or to negotiate treaties without prior proposal by the International Law Commission. The most
important example was the third UN Conference on the Law of the Sea, which terminated its
work 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 is
the 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: the
Convention on Biological Diversity, which seeks to preserve the world’s biological diversity
and promote the sustainable use of its components; and the Framework Convention on
Climate Change, which seeks to limit industrial emissions of gases leading to global
warming. Sometimes the UN convenes major conferences to assess progress and problems
concerning a specific topic, without adopting a new agreement. Such conferences have been
held on human rights and on the status of women worldwide.

A landmark in the development of international law occurred in 1998 at a UN diplomatic
conference in Rome, Italy, when 120 countries adopted a treaty to establish the world’s first
permanent international criminal court. Officially established in 2002, the International
Criminal Court (ICC) operates independently of the United Nations and has the power to
initiate investigations and prosecutions of war criminals, including those accused of
genocide, crimes against humanity, and other serious crimes. Unlike previous war crimes
tribunals, such as those created in response to atrocities in the former Yugoslavia and in
Rwanda, 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 law
automatically part of the law of their land. The scope of international law is vast. Nearly every
matter of legal regulation within a nation has some international counterpart. Over the last
century, advances in communications technology, growth in global trade and travel, and
the advent of weapons of mass destruction have led to an enormous expansion in the range
of topics regulated by international law. In addition to the classic matters of diplomacy, war


                                                                                               8
and peace, trade, and territorial boundaries, 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 section discusses several major areas of
international law, including peace and security, human rights, the environment, and the
global 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. law
conforms to international law; such an attitude has been urged consistently by the Supreme
Court of the United States. In some countries, such as the United Kingdom, and India
treaties do not become effective in national law until they are enacted by Parliament. In other
countries, a treaty or customary international law is given constitutional status superior to
national legislation. How a sovereign state adopts and applies international law is generally
left 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 an
excuse to breach an international agreement or violate an international rule. This was made
clear during the war crimes trials held in Nürnberg, Germany, following World War II. The
Nürnberg tribunals rejected the defense that certain acts, such as the killing of prisoners of
war, were permitted under the domestic laws of Nazi Germany. The tribunals held that such
laws were null and void because they contravened the generally valid rules of warfare. It also
held that the individuals responsible for issuing and executing such laws were criminally
responsible for grave breaches of international law. Today, international human rights courts
often declare national laws incompatible with international rules and may award
compensation 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 nation
has some international counterpart. Over the last century, advances in communications
technology, growth in global trade and travel, and the advent of weapons of mass destruction
have led to an enormous expansion in the range of topics regulated by international law. In
addition to the classic matters of diplomacy, war and peace, trade, and territorial boundaries,

                                                                                             9
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 section
discusses several major areas of international law, including peace and security, human
rights, 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 of
the oceans and their resources, Antarctica, Earth’s atmosphere, outer space, and the
Moon and other natural objects in space. These areas are known collectively as the
global commons. The absence of political sovereignty for these areas means that
international regulation is required to avoid conflict over them and to protect them from
overuse, pollution, and other harm. International agreements for these areas are generally
accepted as providing the legal framework for all those who conduct activities in them some
of them are Aviation Law; Maritime Law; Freedom of the Seas.

International Law in Aviation
The importance of modern aviation was recognized during World War II, when a conference
was convened in Chicago in 1944 to discuss regulation of post-war international civil
aviation. 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 such
arrangements. 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 United
States and Britain. Subsequent bilateral agreements are based on the so-called Bermuda
Principles 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) to
foster development and promote cooperation in international civil aviation. The organization
has a legal committee that is responsible for producing treaties, conventions, and protocols
in those areas of aviation in which uniformity is desirable.



                                                                                            10
A basic agreement in international aviation law is the Warsaw Convention of 1929. This
convention provided for presumptive but limited liability of an air carrier for personal injury or
death of a passenger and damage to goods in international air carriage. The Hague Protocol
was adopted in 1965 Constituting a series of amendments to the Warsaw Convention. This
so-called Montréal Agreement was then incorporated 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. The protocol provided for absolute liability The
Guatemala Protocol was later amended to provide that the limit would be 100,000 Special
Drawing Rights (units of international monetary exchange administered by the International
Monetary Fund).

The ICAO's legal committee, in 1963, produced the Tokyo Convention, dealing with offences
committed on aircraft. The many aircraft hijackings since 1968 brought pressure to ratify the
treaty, and in May 1969 the U.S. Senate consented to the convention's ratification. More
stringent security measures for international flights were called for in an amendment to the
Chicago Convention adopted by the ICAO council in 1985.

Air Space and Outer Space in India
All countries have aviation legislation designed to conform to the international rules. In India
various 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 regulations

The air safety in India is regulated by suppression of unlawful acts against the safety of civil
aviation 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 the
Montréal convention, 1971 (convention for the suppression of unlawful acts against the
society of civil aviation, 1971).


                                                                                               11
Beside these regulations and acts, India has also signed various international conventions
related to aviations related to aviation and hence India has to abide by the terms and
conditions 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, 2001

Aviation Liabilities and the Amendments

The Unification of Certain Rules Relating to International Carriage by Air (Warsaw
Convention) which established between member States a uniform liability framework for air
carriers at a time when aviation was a new and burgeoning industry.



                                                                                            12
The Warsaw Convention was subsequently amended seven times, unfortunately without the
uniformity in ratification by States enjoyed by the original Warsaw Convention.                  The
amendments gave rise to what is known as the Warsaw System, whereby the rules for
liability in respect of international carriage depend upon the iteration of the Warsaw
Convention 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 was
signed on October 12, 1929. This convention provided for presumptive but limited liability of
an air carrier for personal injury or death of a passenger and damage to goods in
international 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 to
the Warsaw Convention, the protocol doubles the liability limit. The United States was not a
party to the conference at Warsaw that produced the Warsaw Convention, but adhered to it
in 1934. By 1969 it had not ratified or adhered to The Hague Protocol. In 1965, indeed, the
United States gave notice of its intention to denounce the Warsaw Convention because of its
low limit of liability. The Americans withdrew this notice, however, when air carriers, under
the 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 or
passing through the United States. This so-called Montréal Agreement was then
incorporated 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. It
was signed by the United States in 1970. The protocol provided for absolute liability on the
part of the airline as well as for an unbreakable limitation of damages to $100,000. The
Guatemala Protocol was later amended to provide that the limit would be 100,000 Special
Drawing Rights (units of international monetary exchange administered by the International
Monetary Fund). This new treaty, entitled the Montréal Protocols 3 and 4, was denied
ratification 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 special
contract has been entered into, such a limitation will not apply.

                                                                                                   13
Protocol to Amend the Convention for the Unification of Certain Rules Relating to
International Carriage by Air (The Warsaw Convention, 1929)
The Warsaw convention requires the injured party to bring a lawsuit within two years of the
accident or the action will be dismissed. Also, the air carrier will not be liable if the carrier can
prove that due care was taken. This act applies to injuries sustained on the plane or while
embarking or disembarking from an international flight.

The Warsaw convention defines an accident as unexpected or unusual event that is external
to the passenger. The definition of wilful misconduct depends in some measure which courts
can 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 1952

The convention on damage caused by the foreign aircraft to third parties on the surface
includes the principle of absolute liability of the aircraft operator for damage caused to third
parties on the surface but places a limitation on the amount of compensation
Expressed in poincare gold francs and calculated in relation to the aircraft concerned.

However, a diplomatic conference convened in 1978, under ICAO auspices adopted a
protocol for the amendment of Rome convention. The basic feature of the protocol is a
substantial increase in the limits of liability and expression of the limits in the Special Drawing
Rights of the IMF (International Monetary Fund)




                                                                                                  14
The Hague protocol, 1955

The interest of treating independently from the 1929 Warsaw convention, the 1955 protocol
to amend the convention for the unification of certain rules relating to international carriage
by air, done at the Hague lies in the fact that only about two third of the original member
states adhere to the protocol.

The main difference brought to the 1955convention relating to carriage by air of goods and
passenger 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 two
states which adhere to Hague protocol.

Another application is when both departure and destination points are with in the territory of a
single state, which is a party to the amended convention, if the contract designates any
stopping place outside the territory of the state.

When one state is a member of the amended convention while the other is only a member of
original Warsaw convention, the latter applies.

The Hague protocol excludes the carrier’s defences of neglect pilot-age and negligence in
the handling of the aircraft. Further more, the burden of proof needed to exclude the limited
liability of the carrier is modified from “wilful misconduct” to “intention of case damage or to
cause 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 loss
or of damage to the goods.

The Hague Protocol amends the 1929 Warsaw Convention that the Montreal Convention is
designed to replace. Until the Montreal Convention gains wide adherence, the Warsaw
system will remain in place between many countries. Accordingly, the Committee
recommends 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 some
modern elements of the protocol, especially those relating to the carriage of cargo. At

                                                                                             15
present, there is uncertainty about whether the United States is a party to the Hague
Protocol. This uncertainty arises, in part, from the confusion that results from the patchwork
nature of the Warsaw system. The 1929 Warsaw Convention has been amended by a series
of protocols. Some countries are parties only to the Warsaw Convention; others are parties
only to particular protocols amending the Convention. Recent litigation in federal court has
highlighted this confusion. In 2000, the U.S. Court of Appeals for the Second Circuit held in
Chubb & 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 to
international air carriage rules because the two countries were not parties to common pieces
of this regime.

Ratification of the Hague Protocol will serve to clarify treaty relationships immediately with a
number of countries with which the status of our treaty relationships under the Warsaw
system may be unclear in light of the Chubb case. This includes countries with which we may
have no treaty relationships at present. It also includes countries with which our only current
treaty relationship may be the relatively antiquated 1929 Warsaw Convention, unamended by
any of the subsequent protocols. With respect to this latter group of countries, ratification of
the Hague Protocol is useful because the Protocol streamlines the Warsaw Convention ' s
cumbersome documentation requirements for cargo transportation. In the short- term, having
cargo shipments to and from such countries governed by the Hague Protocol rather than by
the unamended Warsaw Convention will benefit shippers.

The relevance of the Hague Protocol will wane as more countries become parties to the
Montreal Convention, which provides updated rules governing air carriage. Where two
countries are parties both to the Montreal Convention and to prior conventions governing
international air carriage, the Montreal Convention, by its terms, supersedes the earlier
instruments. The Committee hopes that United States ratification of the Montreal Convention
will serve to encourage other countries also to become parties to it. The Committee
encourages the Administration to undertake active diplomatic efforts to promote further
ratifications.




                                                                                             16
The Guadalajara convention 1961

A diplomatic conference was held in Guadalajara, Mexico in September 18, 1961, for the
sole 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 from
one carrier, such as freight forwarder or consolidator but the transportation is provided by
another carrier in accordance with an agreement between the carriers.
The convention rendered to the actual carrier, with respect to the carriage he performs, the
same right and obligation as the carrier under the Warsaw convention or the Warsaw
convention as amended by the Hague protocol.


The Montréal inter carrier agreement 1966

The Montréal inter carrier agreement ensured that accident victims on flight to or from the
signatory states are compensated for up to US $ 75,000 of proven damages, whether or not
the negligence of the carrier was the cause of the accident.

The Guatemala City protocol 1971

The Guatemala City protocol, 1971 was the result of further efforts to advance the cause of
passenger rights that were reflected in the Hague protocol. The Guatemala City protocol held
carriers strictly liable for upto US $ 100,000 of proven damage in the event of passenger
death 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 recognised
the right of states to supplement passenger recoveries through state legislated insurance
plans.

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 more
favourable and more comprehensively revision of the Warsaw convention was made. The

                                                                                              17
1975 additional protocol No 1 and 2 are related solely to the conversion from a gold standard
to the Special Drawing Right (SDR) standard for purpose of calculating all quantitative
limitations on liability under the Warsaw convention and under the Warsaw convention as
amended by The Hague protocol. The SDR is an artificial basket currency developed by the
international monetary fund for internal accounting purpose.

The key provisions of the Guatemala City protocol were incorporated into additional protocol
No 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 currency
conversion formula based on SDR.

In the addition protocol; no 4 the outmoded cargo documentation provisions of the Warsaw
convention were eliminated, there by facilitating the application of electronic commerce to
international air cargo. For example, the additional protocol no 4 eliminated the need for
consignor of cargo to complete detailed air waybills prior to consigning goods to a carrier. In
place of such detailed airway bills, consignor could use simplified electronic records of
facilitate 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
sum, unless he proves that that sum is greater than the consignor's 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
The Montréal protocol 1988
The protocol was signed at Montréal was signed at Montréal on February 24, 1988 came into
force as of august 6, 1989, this protocol adds to the definition of ‘offence’ given in the
Montréal convention of 1971, including actions that are likely to endanger airport safety. It
establishes universal jurisdiction over the offender and applies the Montréal convention’s
rules of custody, extradition, and prosecution.

The Montréal convention 1999
The Montréal convention 1999 eventually replaced the Warsaw convention 1929 and a
number of subsequent conventions and protocols which together from the ‘Warsaw system ‘.
This system provides an international treaty frame work for liability rules governing
commercial international aviation travel, and for documentation such as tickets and airway
bills. Compensation arrangements are provided for passengers, baggage and cargo affected
by aircraft accidents. The convention substantially improves consumer protection in
international carriage by air and modernises the smooth flow of passengers, baggage and
cargo. Most importantly, it improves the international regime for air carriers, liability by
providing a form of unlimited and more equitable passenger compensation governing injury
or 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
•   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 damages


Example: How does the conventions applicable to the recent accidents


Some Flight    1549    passengers      have    reportedly
"lawyered-up." What legal claims do they have?
Putting aside the question of whether pursuing the
claims is the right thing to do -- some say they should
simply count their blessings -- do the passengers have
any 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 by
the airline's negligence. From what is known so far, that seems unlikely. If, however, the
passenger succeeds in proving negligence, he would be entitled to compensation for any
physical injuries he sustained as well as compensation for the emotional distress he
suffered. 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 passenger
could 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? That
would change everything. Even though the flight was domestic, the Montreal Convention, an
international treaty governing airline liability, would trump state law. The passenger would
not need to prove the airline was negligent to recover. It is enough that a passenger's
injuries were the result of an "accident." The airline would be automatically liable. But under
the 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
Overview of the Warsaw Convention and the Montreal Protocol 4

The Warsaw Convention was drafted when the airline industry was in its infancy. It was the
product of two international conferences, the first held in Paris in 1925 and the second in
Warsaw in 1929 and four years of work by the “interim Commite International Technique
d'Experts Juridique Aeriens” (CITEJA) formed at the Paris Conference. The Convention had
two primary goals:


To establish uniformity in the aviation industry with regard to ``the procedure for dealing with
claims arising out of international transportation and the substantive law applicable to such
claims,'' 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 of
accidents. The liability limit was believed necessary to allow airlines to raise the capital
needed to expand operations and to provide a definite basis upon which their insurance rates
could be calculated.


The nations drafting this provision had a direct interest in establishing liability limits, since
nearly all existing airlines were either owned or heavily subsidized by the various contracting
states. 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 the
States whatever they might be, and the Warsaw Convention remains the supreme law of the
land. The current Warsaw Convention requires 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 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 Changes

the Warsaw Convention since 1929. Generally, the Convention applies to air carriage
between the territories of two High Contracting Parties to the Convention. For example, air
carriage between the Untied States and England. The Warsaw Convention governs the

                                                                                                 22
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. Warsaw
requires 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/or
particulars 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 approach
must be taken with respect to Warsaw. Warsaw is a treaty and traditional methods of judicial
interpretation 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 Air
Lines, 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 Changes
The United States has been a party to the Warsaw Convention since 1929. Generally, the
Convention applies Warsaw (NOTE: Montreal Protocol 4 Changes) Major Changes to
Warsaw Convention as Amended by the Hague and Montreal Protocol 4. (MONTREAL
PROTOCOL 4) (Effective March, 1999). On September 28, 1998, the U.S. Senate finally
ratified MONTREAL PROTOCOL 4 to the Warsaw Conventional. This amendment to the
original 1929 Warsaw Convention has been pending since 1975. Some aspects of
MONTREAL PROTOCOL 4 are certain, like the need for forwarders & indirect air carriers to
start looking up the current value of Special Drawing Rights (SDR) to determine their limits
on 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 be
limited by the strict construction and plain language approach utilized by Supreme Court
Justice Scalia in writing his decision for the case of Chan vs. Korean Air Lines, Ltd. There are


                                                                                                          23
exceptions to this approach, such as ambiguity, but at what point does traditional judicial
interpretation end? According to the U.S. Court of Appeal for the 2nd Circuit in "Tai Ping", (a
recent Warsaw Convention case), traditional judicial interpretation ends when "the language
is reasonably susceptible of only one interpretation."


Article 5 replaces language requiring that the consignor "make out" and "hand over" an air
waybill with the requirement that an "air waybill shall be delivered" or that "any other means
which would preserve a record of the carriage to be performed may, with the consent of the
consignor, be substituted for the delivery of an air waybill." It is this change that clears the
way for the use of electronic air waybills. Before MONTREAL PROTOCOL 4 it was clearly
established 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 baggage
claims, the summary set forth below specifically addresses those substantive changes which
relate to claims for loss or damage to cargo.


1.) Limitation of Liability
The Protocol changes the maximum liability limitation from $20 kilogram to 17 Special
Drawing Rights (SDR's) per kilogram. See Article 22. An SDR is a fluctuating unit of currency
defined 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 per
kilogram. The U.S. conversion rate for an SDR can be found on the IMF's web page located
at this hot link: SDR RATE TODAY
The Protocol expressly incorporates the 1955 Hague amendments to Warsaw. See Article I.
Under those amendments, the carrier's maximum liability is based on the weight of the entire
shipment if the damaged cargo affects the value of the other cargo covered by the same air
waybill. See Art. 22(c) and Art. 22(b) of Hague Protocol to Warsaw. In other words, if the
damaged piece is an integral part of the entire shipment, then the carrier cannot limit its
liability to the weight of the damaged piece.



                                                                                             24
2.) Willful Misconduct
Under the Protocol, proof of wilful misconduct does not deprive the carrier of the benefit of
the liability limitation. Prior to this amendment, wilful misconduct provided cargo interests with
the ability to avoid the limitation.


3.) Failure to Issue Waybill or List Particulars on Waybill
Similarly, 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 Convention's liability
limitation. See Article 9.


4.) Carriers Can Trade Electronically
The 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 to
be performed, may, with the consent of the consignor, be substituted for the delivery of an air
waybill." According to the ATA and IATA, this provision will save carriers approximately
US$5-$6 per shipment.


5.) Traditional Carrier Defenses & Contributory Negligence
The Protocol adopts the traditional defenses to carrier liability. The carrier will not be liable
for damages caused by 1) inherent defect or vice of cargo; 2) defective packaging of the
cargo; 3) act of war and 4) an act of a public authority with regard to the entry or exit of the
cargo; i.e. customs. See Article 18.
Under the Convention, contributory negligence may exonerate the carrier wholly or partly
from liability only if the jurisdiction recognizes this defense. The Protocol changes this
provision to provide the Carrier with the defense of contributory negligence regardless of
whether it is recognized in the jurisdiction in which the action is brought.
Other Articles of Importance Modified by MONTREAL PROTOCOL 4
Articles 6 & 7 of MONTREAL PROTOCOL 4 retains the language requiring that the air
waybill be "handed over” and "signed." These formalities will continue to complicate "paper"



                                                                                                  25
shipments and may further complicate the formalities required to "preserve a record of the
carriage" in accordance with New Article 5.
Articles 8 & 9 of MONTREAL PROTOCOL 4 replaces language requiring that "the air waybill
shall 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 flight
be stated. Under MONTREAL PROTOCOL 4, the air waybill needs only to have "an
indication of the places of departure and destination and an indication of the weight of the
consignment" and if the departure and destination are within the territory of a single
contracting party but stopping in another country, then and only then does the stopping place
within 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 of
liability limits. (Compare with Art. 3)


Article 10 is expanded, giving greater protection to the carrier by making the consignor
responsible for the correctness of the particulars relating to the cargo and make the
consignor responsible for any loss or damage which an irregularity, incorrectness or
incompleteness of those particulars causes to the air carrier or to any third party to whom the
carrier is liable. (Dangerous Goods).


Article 11 contains a significant change by making statements in the air waybill relating to
quantity, volume and condition of the cargo void as prima facie evidence against the carrier
except 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 goods
which show up short at destination without any obvious record of tampering will not
automatically be the responsibility of the air carrier and a shipper may be put to his difficult
proof to show the cargo's quantity and condition at origin. An air carrier will still be
responsible for the stated weight and apparent condition of the cargo. Note however that
cargo inside unit load devices or inside crates will not be apparent to the air carrier at time of
receipt.




                                                                                                   26
Article 18 of MONTREAL PROTOCOL 4 expressly adopts the traditional exceptions to carrier
liability:
_ 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 authority
MONTREAL PROTOCOL 4 also expands and clarifies the damage presumption stating that
if "for the purpose of loading, delivery or transhipment, any damage is presumed, subject to
proof to the contrary, to have been the result of an event which took place during the carriage
by air."


Article 22 of MONTREAL PROTOCOL 4 Changes the old damage limit of US$20.00 per kilo
or US$9.07 per lb. to 17 Special Drawing Rights (SDR) a unit of currency determined by the
International Monetary Fund. The new cargo liability limit will fluctuate with currency
valuations and is about US$23.15 per kilo or US$10.50 per lb. (Refer to www.cargolaw.com
for the current SDR exchange rate).


Article 25 of MONTREAL PROTOCOL 4 deletes the vagaries of a "willful misconduct," but
allows a shipper to recover beyond the limits of liability if the claimant can prove that "the
damage resulted from an act or omission of the carrier, his servants or agents, done with
intent 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 to
passengers & baggage only.




                                                                                            27
Summary

At present 86 countries have ratified the Montreal Convention.
The Montreal Convention aims to modernise and consolidate the Warsaw System, to ensure
the protection of the interests of consumers with respect to compensation and promote the
development 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 aviation
manufacturers from lawsuits for defectively designed or manufactured aircraft that are more
than 18 years old. Regardless of how serious the defect, if the aircraft is more than 18 years
old, an injured victim cannot sue its manufacturer.


Amendments, protocols and conventions are prepared to establish uniformity in the aviation
industry with regard to ``the procedure for dealing with claims arising out of international
transportation and the substantive law applicable to such claims,'' as well as with regard to
documentation 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 to
cope up with the growth of the aviation industry especially after globalisation. Most of the text
is vintage old and need to be redrafted in order to support technical growth.




                                                                                              28
References:


www.icao.com
www.iata.com
Monthly economic analysis
Studies in Aerospace Law                     Dr. Nagendra Singh & S.Bhatt
www.aerospacelaw.com
www.aviationlawers.com
The Law Offices of Countryman & McDaniel
International Law;
Private;                                     Encarta Reference Library
League of Nations;
United Nations.
http://www.wilsonelser.com/MontrealConvention_April2006.pdf
http://cargolaw.com/presentations_montreal_con.html
http://www.dlaphillipsfox.com/article/178/Trade-&-Transport-Bulletin---Montreal-
Convention-1999-to-apply-in-Australia
http://www.encyclopedia.com/doc/1G1-55553583.html
http://www.spedlogswiss.com/freedoc/?id=10011982




---------------------------------------------------------------------------------------------------------------------------


                                                     SIREESH P.
                                           FLYING INSTRUCTOR (UAV’S)
                                  AIRCRAFT RESEARCH AND DESIGN CENTER,
                                       HINDUSTAN AERONAUTICS LIMITED
                          Email id: seereesh@gmail.com, Mobile no: +91- 9740287428



                                                                                                                        29

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Laibility in avaiation

  • 1. LIABILITIES IN THE AVIATION INDUSTRY SIREESH P. UAV- Flying instructor ---------------------------------------------------------------------------------------------------------- INTRODUCTION An airline's liability for a passenger's injury or death is most often determined by state law. But if the passenger's trip includes a stop in a foreign country, then the airline's liability is controlled entirely by international treaties. The treaties are known as the Warsaw Convention and the Montreal Convention. The treaties also govern a passenger's claims for injuries occurring on a domestic flight, as long as a foreign destination was on the passenger's itinerary. That means that state law may govern the claims of one victim of an airline disaster, while a treaty may govern the claims of his friend in the very next seat. Because different law applies, one victim (or his family) might be entitled to compensation from the airline and the other not. Making us think Which is more favourable for the victim -- state law or the treaties? It depends on the circumstances of the case. But if a treaty applies, the passenger need not prove the airline was negligent at all. If a treaty applies, the passenger need only prove that his injuries were the result of an "accident." This project deals with the study of some contemporary issues in the aviation law. It highlights the continuing role of jurists and scholars in Aviation law for developing the new amendments. It is developed to maintaining international cooperation, high reliability standards, passengers’ safety and liability. 1
  • 2. Liabilities for international air travel are the integral part of international law these are derived from the protocol to amend the convention. Every contracting state which is a member to these conventions has to comply with its amendments and protocols along with there state law. These protocols are intended for limited liability of an air carrier for personal injury or death of a passenger and damage to goods. Violation of Regulations. Sometimes, it turns out that the manufacturer, mechanic, or other defendant violated a aviation regulation. In some states, one who violates a regulation is automatically considered negligent, or "negligent per se." In other states, one who violates a regulation isn't automatically negligent, but the violation is something the jury is allowed to consider when deciding the question. Details of these conventions and aviation law with some recent examples have been discussed well to the point in the paper. Besides these conventions, international conventions related to aviation, adhered by India have been brought forward. 2
  • 3. International Law International law is the law of the international community. International Law, principles, rules, and standards that govern the nations and other participants, in matters relating to international affairs in their relations with one another. Most international law consists of long-standing customs, provisions agreed to in treaties, and generally accepted principles of law, recognized by nations. Some international law is also created by the 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 the control of any one nation (such as outer space or the high seas), and adoption of common rules for multinational activities (such as air transport or postal service). International law also aims to maintain peaceful international relations when possible and resolve international tensions peacefully when they develop, to prevent needless suffering during 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 international community. 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 international courts. The United Nations Security Council can authorize economic sanctions, diplomatic sanctions, or military force to maintain or restore international peace and security. International law began as a system governing the relations among sovereign states, and states have always been the primary legal entities affected by international law. As the global system has become more complex, however, international law has come to recognize and regulate international organizations, businesses, non-profit entities, and individuals. The emergence of international human rights law and, more recently, international criminal law reflects the fact that individuals today are direct subjects of international law in certain respects. 3
  • 4. Modern international law began to develop with the rise of national states in Europe after the 15th century, when the basic ideas of national territory and jurisdiction were established. In 1625, building on the work of previous legal writers, the Dutch jurist Hugo Grotius published his celebrated treatise De Jure Belli ac Pacis (On the Law of War and Peace). Grotius argued that existing customs governing the relations between nations had the force of law and were binding unless contrary to natural justice or the law of nature (natural law), an immutable higher law governing all human conduct. Grotius’s influence on international affairs and the settlement of wars was great, and he is sometimes called the father of modern international law. His ideas became the cornerstone of the international system as established 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 of international law, among them the Dutch jurist Cornelis van Bynkershoek and the Swiss diplomat Emmerich de Vattel. Vattel’s book, Le droit des gens (1758; Law of Nations), greatly influenced the framers of the Constitution of the United States with its ideas of natural law governing the behaviour of states. Over time scholars gave increasing emphasis to the idea of state sovereignty, so that by the end of the 19th century the theoretical foundation of international law had shifted from natural law to a strictly consensual approach known as positivism. Positivism claims that each nation is bound only by the international rules that it freely accepts to limit its otherwise unlimited freedom of action. The clash between positivists and adherents of natural law continues today. Conflict is most pronounced over the issue of whether there are fundamental “higher norms” of international law, a principle called jus cogens, that sovereign state are obliged to respect. THE MODERN SYSTEM: Modern international law stems from three main sources: Treaties, Customs, and The Generally Accepted Principles of law derived from national legal systems throughout the world. International organizations also play an important role in the formation of international law. 4
  • 5. Treaties: Treaties are written agreements between two or more sovereign states. International organizations may also be given the capacity to make treaties, either with sovereign states or other international organizations. Treaties may be known by many other names—for example, agreement, convention, protocol, pact, and covenant—but the name chosen generally does not affect the legal status of the agreement. As long as the parties intend the text 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 the sovereign state. It is within the discretion of each state to participate in the negotiation of, or to sign or ratify, any international treaty. Likewise, each member state of an international organization 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 over time. To be accepted as law, the custom must be long-standing, widespread, and practiced in a uniform and consistent way among nations. One example of customary international law is 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 only those countries that ratify them, customs may be deduced from the rules and statements contained in treaties. These new customs may be considered binding even on those states that did not sign and ratify the original treaty. Whether or not they are embodied in a written treaty, customs become part of international law because of continued acceptance by the great majority of nations. Some customary international law has been codified in recent years. For example, the Vienna Convention on the Law of Treaties, which was approved in 1969 and took effect in 1980, codified the customary law that treaties between sovereign states are binding on their signatories and must be followed in good faith. 5
  • 6. General Principles: The phrase “general principles of law” appeared in the statute of the Permanent Court of International 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 existing treaty law and customary international law. Some of the diplomats and lawyers drafting the statute of the court feared, however, that disputes might arise over new international issues for which there would be no settled custom or applicable treaty. They decided, and the nations voting for the statute agreed, to add a third source of law—“general principles of law recognized by civilized nations”—to allow the court to draw upon widely recognized legal principles in national law. In this way, the court would not have to refuse to settle a dispute because of the absence of international law. General principles that have been applied by the 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 has also engaged in), the principle that individuals should not be a judge in their own dispute, and the 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 and confirming international legal rules. The most important international courts are the UN International Court of Justice, which mainly handles legal disputes between nations, and the International Criminal Court, which prosecutes individuals for genocide, war crimes, and other serious crimes of international concern. Resolutions and decisions of the UN and other international organizations now also have a great impact on the views and practices of sovereign states, sometimes leading to rapid formation of customary international law. States have given a very few international organizations, such as the European Union and the UN Security Council, the power to enact directly binding measures. The first international organizations emerged in the 19th century. Technological advances such as the telegraph and the telephone, together with a rise in international trade, created a need for permanent international institutions to regulate problems that exceeded national boundaries. The earliest organizations of this type were specialized bodies such as the International Telegraphic Union (1865) and the Universal Postal Union (1874). 6
  • 7. After World War I European countries created the League of Nations, an organization with a general mandate to maintain peace and prevent war. The League’s covenant was part of the Treaty of Versailles signed in 1919 to officially end the war. Pursuant to provisions in the covenant, the Permanent Court of International Justice was established in 1921 as the world’s first international court. Its role was to decide international disputes that were voluntarily submitted to the court by the nations involved, and to issue advisory opinions on disputes 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 of international law. The onset of World War II in 1939 proved the League of Nations ineffective in preventing hostilities. Equally unsuccessful was the Pact of Paris, also called the Kellogg-Briand Pact, a multilateral treaty renouncing the use of war that had been signed in 1928 and ultimately ratified by more than 60 nations, including Germany and Japan. After World War II ended in 1945 the United Nations replaced the League of Nations, and the International Court of Justice succeeded the Permanent Court of International Justice. The United Nations Charter created elaborate machinery for maintaining peace and security and for solving disputes among nations. It also specifically directed the General Assembly to encourage the progressive development and codification of international law. To carry out this task, the General Assembly created two subsidiary organs: The International Law Commission (1947) and The Commission on International Trade Law (1966). Over the years the International Law Commission has prepared drafts of treaties codifying and modernizing a number of important topics of international law, including the law of the sea, diplomatic relations, consular relations, law of treaties between nations, succession of states 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 international freshwaters. The Commission on International Trade Law drafts texts on laws concerning international commerce and economic development. Upon acceptance by the General Assembly, drafts from the commissions usually are submitted to international conferences called by the UN for adoption of the respective conventions. 7
  • 8. In some instances, the UN has organized conferences to discuss major international issues or to negotiate treaties without prior proposal by the International Law Commission. The most important example was the third UN Conference on the Law of the Sea, which terminated its work 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 is the 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: the Convention on Biological Diversity, which seeks to preserve the world’s biological diversity and promote the sustainable use of its components; and the Framework Convention on Climate Change, which seeks to limit industrial emissions of gases leading to global warming. Sometimes the UN convenes major conferences to assess progress and problems concerning a specific topic, without adopting a new agreement. Such conferences have been held on human rights and on the status of women worldwide. A landmark in the development of international law occurred in 1998 at a UN diplomatic conference in Rome, Italy, when 120 countries adopted a treaty to establish the world’s first permanent international criminal court. Officially established in 2002, the International Criminal Court (ICC) operates independently of the United Nations and has the power to initiate investigations and prosecutions of war criminals, including those accused of genocide, crimes against humanity, and other serious crimes. Unlike previous war crimes tribunals, such as those created in response to atrocities in the former Yugoslavia and in Rwanda, 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 law automatically part of the law of their land. The scope of international law is vast. Nearly every matter of legal regulation within a nation has some international counterpart. Over the last century, advances in communications technology, growth in global trade and travel, and the advent of weapons of mass destruction have led to an enormous expansion in the range of topics regulated by international law. In addition to the classic matters of diplomacy, war 8
  • 9. and peace, trade, and territorial boundaries, 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 section discusses several major areas of international law, including peace and security, human rights, the environment, and the global 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. law conforms to international law; such an attitude has been urged consistently by the Supreme Court of the United States. In some countries, such as the United Kingdom, and India treaties do not become effective in national law until they are enacted by Parliament. In other countries, a treaty or customary international law is given constitutional status superior to national legislation. How a sovereign state adopts and applies international law is generally left 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 an excuse to breach an international agreement or violate an international rule. This was made clear during the war crimes trials held in Nürnberg, Germany, following World War II. The Nürnberg tribunals rejected the defense that certain acts, such as the killing of prisoners of war, were permitted under the domestic laws of Nazi Germany. The tribunals held that such laws were null and void because they contravened the generally valid rules of warfare. It also held that the individuals responsible for issuing and executing such laws were criminally responsible for grave breaches of international law. Today, international human rights courts often declare national laws incompatible with international rules and may award compensation 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 nation has some international counterpart. Over the last century, advances in communications technology, growth in global trade and travel, and the advent of weapons of mass destruction have led to an enormous expansion in the range of topics regulated by international law. In addition to the classic matters of diplomacy, war and peace, trade, and territorial boundaries, 9
  • 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 section discusses several major areas of international law, including peace and security, human rights, 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 of the oceans and their resources, Antarctica, Earth’s atmosphere, outer space, and the Moon and other natural objects in space. These areas are known collectively as the global commons. The absence of political sovereignty for these areas means that international regulation is required to avoid conflict over them and to protect them from overuse, pollution, and other harm. International agreements for these areas are generally accepted as providing the legal framework for all those who conduct activities in them some of them are Aviation Law; Maritime Law; Freedom of the Seas. International Law in Aviation The importance of modern aviation was recognized during World War II, when a conference was convened in Chicago in 1944 to discuss regulation of post-war international civil aviation. 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 such arrangements. 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 United States and Britain. Subsequent bilateral agreements are based on the so-called Bermuda Principles 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) to foster development and promote cooperation in international civil aviation. The organization has a legal committee that is responsible for producing treaties, conventions, and protocols in those areas of aviation in which uniformity is desirable. 10
  • 11. A basic agreement in international aviation law is the Warsaw Convention of 1929. This convention provided for presumptive but limited liability of an air carrier for personal injury or death of a passenger and damage to goods in international air carriage. The Hague Protocol was adopted in 1965 Constituting a series of amendments to the Warsaw Convention. This so-called Montréal Agreement was then incorporated 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. The protocol provided for absolute liability The Guatemala Protocol was later amended to provide that the limit would be 100,000 Special Drawing Rights (units of international monetary exchange administered by the International Monetary Fund). The ICAO's legal committee, in 1963, produced the Tokyo Convention, dealing with offences committed on aircraft. The many aircraft hijackings since 1968 brought pressure to ratify the treaty, and in May 1969 the U.S. Senate consented to the convention's ratification. More stringent security measures for international flights were called for in an amendment to the Chicago Convention adopted by the ICAO council in 1985. Air Space and Outer Space in India All countries have aviation legislation designed to conform to the international rules. In India various 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 regulations The air safety in India is regulated by suppression of unlawful acts against the safety of civil aviation 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 the Montréal convention, 1971 (convention for the suppression of unlawful acts against the society of civil aviation, 1971). 11
  • 12. Beside these regulations and acts, India has also signed various international conventions related to aviations related to aviation and hence India has to abide by the terms and conditions 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, 2001 Aviation Liabilities and the Amendments The Unification of Certain Rules Relating to International Carriage by Air (Warsaw Convention) which established between member States a uniform liability framework for air carriers at a time when aviation was a new and burgeoning industry. 12
  • 13. The Warsaw Convention was subsequently amended seven times, unfortunately without the uniformity in ratification by States enjoyed by the original Warsaw Convention. The amendments gave rise to what is known as the Warsaw System, whereby the rules for liability in respect of international carriage depend upon the iteration of the Warsaw Convention 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 was signed on October 12, 1929. This convention provided for presumptive but limited liability of an air carrier for personal injury or death of a passenger and damage to goods in international 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 to the Warsaw Convention, the protocol doubles the liability limit. The United States was not a party to the conference at Warsaw that produced the Warsaw Convention, but adhered to it in 1934. By 1969 it had not ratified or adhered to The Hague Protocol. In 1965, indeed, the United States gave notice of its intention to denounce the Warsaw Convention because of its low limit of liability. The Americans withdrew this notice, however, when air carriers, under the 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 or passing through the United States. This so-called Montréal Agreement was then incorporated 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. It was signed by the United States in 1970. The protocol provided for absolute liability on the part of the airline as well as for an unbreakable limitation of damages to $100,000. The Guatemala Protocol was later amended to provide that the limit would be 100,000 Special Drawing Rights (units of international monetary exchange administered by the International Monetary Fund). This new treaty, entitled the Montréal Protocols 3 and 4, was denied ratification 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 special contract has been entered into, such a limitation will not apply. 13
  • 14. Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air (The Warsaw Convention, 1929) The Warsaw convention requires the injured party to bring a lawsuit within two years of the accident or the action will be dismissed. Also, the air carrier will not be liable if the carrier can prove that due care was taken. This act applies to injuries sustained on the plane or while embarking or disembarking from an international flight. The Warsaw convention defines an accident as unexpected or unusual event that is external to the passenger. The definition of wilful misconduct depends in some measure which courts can 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 1952 The convention on damage caused by the foreign aircraft to third parties on the surface includes the principle of absolute liability of the aircraft operator for damage caused to third parties on the surface but places a limitation on the amount of compensation Expressed in poincare gold francs and calculated in relation to the aircraft concerned. However, a diplomatic conference convened in 1978, under ICAO auspices adopted a protocol for the amendment of Rome convention. The basic feature of the protocol is a substantial increase in the limits of liability and expression of the limits in the Special Drawing Rights of the IMF (International Monetary Fund) 14
  • 15. The Hague protocol, 1955 The interest of treating independently from the 1929 Warsaw convention, the 1955 protocol to amend the convention for the unification of certain rules relating to international carriage by air, done at the Hague lies in the fact that only about two third of the original member states adhere to the protocol. The main difference brought to the 1955convention relating to carriage by air of goods and passenger 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 two states which adhere to Hague protocol. Another application is when both departure and destination points are with in the territory of a single state, which is a party to the amended convention, if the contract designates any stopping place outside the territory of the state. When one state is a member of the amended convention while the other is only a member of original Warsaw convention, the latter applies. The Hague protocol excludes the carrier’s defences of neglect pilot-age and negligence in the handling of the aircraft. Further more, the burden of proof needed to exclude the limited liability of the carrier is modified from “wilful misconduct” to “intention of case damage or to cause 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 loss or of damage to the goods. The Hague Protocol amends the 1929 Warsaw Convention that the Montreal Convention is designed to replace. Until the Montreal Convention gains wide adherence, the Warsaw system will remain in place between many countries. Accordingly, the Committee recommends 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 some modern elements of the protocol, especially those relating to the carriage of cargo. At 15
  • 16. present, there is uncertainty about whether the United States is a party to the Hague Protocol. This uncertainty arises, in part, from the confusion that results from the patchwork nature of the Warsaw system. The 1929 Warsaw Convention has been amended by a series of protocols. Some countries are parties only to the Warsaw Convention; others are parties only to particular protocols amending the Convention. Recent litigation in federal court has highlighted this confusion. In 2000, the U.S. Court of Appeals for the Second Circuit held in Chubb & 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 to international air carriage rules because the two countries were not parties to common pieces of this regime. Ratification of the Hague Protocol will serve to clarify treaty relationships immediately with a number of countries with which the status of our treaty relationships under the Warsaw system may be unclear in light of the Chubb case. This includes countries with which we may have no treaty relationships at present. It also includes countries with which our only current treaty relationship may be the relatively antiquated 1929 Warsaw Convention, unamended by any of the subsequent protocols. With respect to this latter group of countries, ratification of the Hague Protocol is useful because the Protocol streamlines the Warsaw Convention ' s cumbersome documentation requirements for cargo transportation. In the short- term, having cargo shipments to and from such countries governed by the Hague Protocol rather than by the unamended Warsaw Convention will benefit shippers. The relevance of the Hague Protocol will wane as more countries become parties to the Montreal Convention, which provides updated rules governing air carriage. Where two countries are parties both to the Montreal Convention and to prior conventions governing international air carriage, the Montreal Convention, by its terms, supersedes the earlier instruments. The Committee hopes that United States ratification of the Montreal Convention will serve to encourage other countries also to become parties to it. The Committee encourages the Administration to undertake active diplomatic efforts to promote further ratifications. 16
  • 17. The Guadalajara convention 1961 A diplomatic conference was held in Guadalajara, Mexico in September 18, 1961, for the sole 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 from one carrier, such as freight forwarder or consolidator but the transportation is provided by another carrier in accordance with an agreement between the carriers. The convention rendered to the actual carrier, with respect to the carriage he performs, the same right and obligation as the carrier under the Warsaw convention or the Warsaw convention as amended by the Hague protocol. The Montréal inter carrier agreement 1966 The Montréal inter carrier agreement ensured that accident victims on flight to or from the signatory states are compensated for up to US $ 75,000 of proven damages, whether or not the negligence of the carrier was the cause of the accident. The Guatemala City protocol 1971 The Guatemala City protocol, 1971 was the result of further efforts to advance the cause of passenger rights that were reflected in the Hague protocol. The Guatemala City protocol held carriers strictly liable for upto US $ 100,000 of proven damage in the event of passenger death 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 recognised the right of states to supplement passenger recoveries through state legislated insurance plans. 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 more favourable and more comprehensively revision of the Warsaw convention was made. The 17
  • 18. 1975 additional protocol No 1 and 2 are related solely to the conversion from a gold standard to the Special Drawing Right (SDR) standard for purpose of calculating all quantitative limitations on liability under the Warsaw convention and under the Warsaw convention as amended by The Hague protocol. The SDR is an artificial basket currency developed by the international monetary fund for internal accounting purpose. The key provisions of the Guatemala City protocol were incorporated into additional protocol No 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 currency conversion formula based on SDR. In the addition protocol; no 4 the outmoded cargo documentation provisions of the Warsaw convention were eliminated, there by facilitating the application of electronic commerce to international air cargo. For example, the additional protocol no 4 eliminated the need for consignor of cargo to complete detailed air waybills prior to consigning goods to a carrier. In place of such detailed airway bills, consignor could use simplified electronic records of facilitate 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. sum, unless he proves that that sum is greater than the consignor's 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. The Montréal protocol 1988 The protocol was signed at Montréal was signed at Montréal on February 24, 1988 came into force as of august 6, 1989, this protocol adds to the definition of ‘offence’ given in the Montréal convention of 1971, including actions that are likely to endanger airport safety. It establishes universal jurisdiction over the offender and applies the Montréal convention’s rules of custody, extradition, and prosecution. The Montréal convention 1999 The Montréal convention 1999 eventually replaced the Warsaw convention 1929 and a number of subsequent conventions and protocols which together from the ‘Warsaw system ‘. This system provides an international treaty frame work for liability rules governing commercial international aviation travel, and for documentation such as tickets and airway bills. Compensation arrangements are provided for passengers, baggage and cargo affected by aircraft accidents. The convention substantially improves consumer protection in international carriage by air and modernises the smooth flow of passengers, baggage and cargo. Most importantly, it improves the international regime for air carriers, liability by providing a form of unlimited and more equitable passenger compensation governing injury or 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. 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 damages Example: How does the conventions applicable to the recent accidents Some Flight 1549 passengers have reportedly "lawyered-up." What legal claims do they have? Putting aside the question of whether pursuing the claims is the right thing to do -- some say they should simply count their blessings -- do the passengers have any 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 by the airline's negligence. From what is known so far, that seems unlikely. If, however, the passenger succeeds in proving negligence, he would be entitled to compensation for any physical injuries he sustained as well as compensation for the emotional distress he suffered. 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 passenger could 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? That would change everything. Even though the flight was domestic, the Montreal Convention, an international treaty governing airline liability, would trump state law. The passenger would not need to prove the airline was negligent to recover. It is enough that a passenger's injuries were the result of an "accident." The airline would be automatically liable. But under the 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. Overview of the Warsaw Convention and the Montreal Protocol 4 The Warsaw Convention was drafted when the airline industry was in its infancy. It was the product of two international conferences, the first held in Paris in 1925 and the second in Warsaw in 1929 and four years of work by the “interim Commite International Technique d'Experts Juridique Aeriens” (CITEJA) formed at the Paris Conference. The Convention had two primary goals: To establish uniformity in the aviation industry with regard to ``the procedure for dealing with claims arising out of international transportation and the substantive law applicable to such claims,'' 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 of accidents. The liability limit was believed necessary to allow airlines to raise the capital needed to expand operations and to provide a definite basis upon which their insurance rates could be calculated. The nations drafting this provision had a direct interest in establishing liability limits, since nearly all existing airlines were either owned or heavily subsidized by the various contracting states. 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 the States whatever they might be, and the Warsaw Convention remains the supreme law of the land. The current Warsaw Convention requires 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 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 Changes the Warsaw Convention since 1929. Generally, the Convention applies to air carriage between the territories of two High Contracting Parties to the Convention. For example, air carriage between the Untied States and England. The Warsaw Convention governs the 22
  • 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. Warsaw requires 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/or particulars 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 approach must be taken with respect to Warsaw. Warsaw is a treaty and traditional methods of judicial interpretation 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 Air Lines, 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 Changes The United States has been a party to the Warsaw Convention since 1929. Generally, the Convention applies Warsaw (NOTE: Montreal Protocol 4 Changes) Major Changes to Warsaw Convention as Amended by the Hague and Montreal Protocol 4. (MONTREAL PROTOCOL 4) (Effective March, 1999). On September 28, 1998, the U.S. Senate finally ratified MONTREAL PROTOCOL 4 to the Warsaw Conventional. This amendment to the original 1929 Warsaw Convention has been pending since 1975. Some aspects of MONTREAL PROTOCOL 4 are certain, like the need for forwarders & indirect air carriers to start looking up the current value of Special Drawing Rights (SDR) to determine their limits on 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 be limited by the strict construction and plain language approach utilized by Supreme Court Justice Scalia in writing his decision for the case of Chan vs. Korean Air Lines, Ltd. There are 23
  • 24. exceptions to this approach, such as ambiguity, but at what point does traditional judicial interpretation end? According to the U.S. Court of Appeal for the 2nd Circuit in "Tai Ping", (a recent Warsaw Convention case), traditional judicial interpretation ends when "the language is reasonably susceptible of only one interpretation." Article 5 replaces language requiring that the consignor "make out" and "hand over" an air waybill with the requirement that an "air waybill shall be delivered" or that "any other means which would preserve a record of the carriage to be performed may, with the consent of the consignor, be substituted for the delivery of an air waybill." It is this change that clears the way for the use of electronic air waybills. Before MONTREAL PROTOCOL 4 it was clearly established 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 baggage claims, the summary set forth below specifically addresses those substantive changes which relate to claims for loss or damage to cargo. 1.) Limitation of Liability The Protocol changes the maximum liability limitation from $20 kilogram to 17 Special Drawing Rights (SDR's) per kilogram. See Article 22. An SDR is a fluctuating unit of currency defined 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 per kilogram. The U.S. conversion rate for an SDR can be found on the IMF's web page located at this hot link: SDR RATE TODAY The Protocol expressly incorporates the 1955 Hague amendments to Warsaw. See Article I. Under those amendments, the carrier's maximum liability is based on the weight of the entire shipment if the damaged cargo affects the value of the other cargo covered by the same air waybill. See Art. 22(c) and Art. 22(b) of Hague Protocol to Warsaw. In other words, if the damaged piece is an integral part of the entire shipment, then the carrier cannot limit its liability to the weight of the damaged piece. 24
  • 25. 2.) Willful Misconduct Under the Protocol, proof of wilful misconduct does not deprive the carrier of the benefit of the liability limitation. Prior to this amendment, wilful misconduct provided cargo interests with the ability to avoid the limitation. 3.) Failure to Issue Waybill or List Particulars on Waybill Similarly, 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 Convention's liability limitation. See Article 9. 4.) Carriers Can Trade Electronically The 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 to be performed, may, with the consent of the consignor, be substituted for the delivery of an air waybill." According to the ATA and IATA, this provision will save carriers approximately US$5-$6 per shipment. 5.) Traditional Carrier Defenses & Contributory Negligence The Protocol adopts the traditional defenses to carrier liability. The carrier will not be liable for damages caused by 1) inherent defect or vice of cargo; 2) defective packaging of the cargo; 3) act of war and 4) an act of a public authority with regard to the entry or exit of the cargo; i.e. customs. See Article 18. Under the Convention, contributory negligence may exonerate the carrier wholly or partly from liability only if the jurisdiction recognizes this defense. The Protocol changes this provision to provide the Carrier with the defense of contributory negligence regardless of whether it is recognized in the jurisdiction in which the action is brought. Other Articles of Importance Modified by MONTREAL PROTOCOL 4 Articles 6 & 7 of MONTREAL PROTOCOL 4 retains the language requiring that the air waybill be "handed over” and "signed." These formalities will continue to complicate "paper" 25
  • 26. shipments and may further complicate the formalities required to "preserve a record of the carriage" in accordance with New Article 5. Articles 8 & 9 of MONTREAL PROTOCOL 4 replaces language requiring that "the air waybill shall 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 flight be stated. Under MONTREAL PROTOCOL 4, the air waybill needs only to have "an indication of the places of departure and destination and an indication of the weight of the consignment" and if the departure and destination are within the territory of a single contracting party but stopping in another country, then and only then does the stopping place within 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 of liability limits. (Compare with Art. 3) Article 10 is expanded, giving greater protection to the carrier by making the consignor responsible for the correctness of the particulars relating to the cargo and make the consignor responsible for any loss or damage which an irregularity, incorrectness or incompleteness of those particulars causes to the air carrier or to any third party to whom the carrier is liable. (Dangerous Goods). Article 11 contains a significant change by making statements in the air waybill relating to quantity, volume and condition of the cargo void as prima facie evidence against the carrier except 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 goods which show up short at destination without any obvious record of tampering will not automatically be the responsibility of the air carrier and a shipper may be put to his difficult proof to show the cargo's quantity and condition at origin. An air carrier will still be responsible for the stated weight and apparent condition of the cargo. Note however that cargo inside unit load devices or inside crates will not be apparent to the air carrier at time of receipt. 26
  • 27. Article 18 of MONTREAL PROTOCOL 4 expressly adopts the traditional exceptions to carrier liability: _ 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 authority MONTREAL PROTOCOL 4 also expands and clarifies the damage presumption stating that if "for the purpose of loading, delivery or transhipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air." Article 22 of MONTREAL PROTOCOL 4 Changes the old damage limit of US$20.00 per kilo or US$9.07 per lb. to 17 Special Drawing Rights (SDR) a unit of currency determined by the International Monetary Fund. The new cargo liability limit will fluctuate with currency valuations and is about US$23.15 per kilo or US$10.50 per lb. (Refer to www.cargolaw.com for the current SDR exchange rate). Article 25 of MONTREAL PROTOCOL 4 deletes the vagaries of a "willful misconduct," but allows a shipper to recover beyond the limits of liability if the claimant can prove that "the damage resulted from an act or omission of the carrier, his servants or agents, done with intent 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 to passengers & baggage only. 27
  • 28. Summary At present 86 countries have ratified the Montreal Convention. The Montreal Convention aims to modernise and consolidate the Warsaw System, to ensure the protection of the interests of consumers with respect to compensation and promote the development 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 aviation manufacturers from lawsuits for defectively designed or manufactured aircraft that are more than 18 years old. Regardless of how serious the defect, if the aircraft is more than 18 years old, an injured victim cannot sue its manufacturer. Amendments, protocols and conventions are prepared to establish uniformity in the aviation industry with regard to ``the procedure for dealing with claims arising out of international transportation and the substantive law applicable to such claims,'' as well as with regard to documentation 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 to cope up with the growth of the aviation industry especially after globalisation. Most of the text is vintage old and need to be redrafted in order to support technical growth. 28
  • 29. References: www.icao.com www.iata.com Monthly economic analysis Studies in Aerospace Law Dr. Nagendra Singh & S.Bhatt www.aerospacelaw.com www.aviationlawers.com The Law Offices of Countryman & McDaniel International Law; Private; Encarta Reference Library League of Nations; United Nations. http://www.wilsonelser.com/MontrealConvention_April2006.pdf http://cargolaw.com/presentations_montreal_con.html http://www.dlaphillipsfox.com/article/178/Trade-&-Transport-Bulletin---Montreal- Convention-1999-to-apply-in-Australia http://www.encyclopedia.com/doc/1G1-55553583.html http://www.spedlogswiss.com/freedoc/?id=10011982 --------------------------------------------------------------------------------------------------------------------------- SIREESH P. FLYING INSTRUCTOR (UAV’S) AIRCRAFT RESEARCH AND DESIGN CENTER, HINDUSTAN AERONAUTICS LIMITED Email id: seereesh@gmail.com, Mobile no: +91- 9740287428 29