Air law 2012

COURSE HANDOUTS
PRIVATE INTERNATIONAL AIR LAW
FACULTY OF LAW - ENGLISH SECTION

Prepared by

Dr. Yassin EL SHAZLY
PhD in Law, Lyon Law School, France
Teacher, Business Law Department,
Faculty of Law, Ain Shams University,
Cairo, Egypt

1

Chapter 1 : Introduction to Warsaw system

3

What are the main aims ?
egulates liability of international air carrier for passengers’ death or
injury, as well as for loss, delay and damage to baggage and cargo

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

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

nified documents of carriage.

nterests of carriers > interests of passengers

Presumed liability with reversed burden of proof: no requirement to
prove fault – negligence 4

WARSAW objectives

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

owever, some of its provisions are outdated. This system
provides an international treaty framework for liability rules
governing commercial international aviation travel, and for
documentation such as tickets and air waybills.
Compensation arrangements are provided for passengers,
baggage and cargo affected by aircraft accidents. 5

WARSAW objectives

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

he purpose was also to protect, at that time, a financially
weak industry and create an incentive for further
development of the emerging aviation industry. Egypt joined
the Warsaw Convention in 1955. 6

WARSAW objectives

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

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

he drafters found such a limit necessary in order to allow air carriers to
raise adequate capital to expand operations, to form a basis for the
7
calculation of insurance rates, to limit exposure of governments that

Conditions of application

rticle 1

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

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

8

Conditions of application

rticle 1

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

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

carriage without such an agreed stopping place between
10

Exceptions of application

Article 34

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

rticle 2

. This Convention applies to carriage performed by the State
or by legally constituted public bodies provided it falls within11
the conditions laid down in Article 1

1. Air Carriage of persons, goods or baggage
• Apply only to air carriage and not to other means of
transportation
• No application in the case of an combined agreement
(sea, land)
• The convention does not give a specific definition to the
aircraft. We should refer to national Law
• According to Egyptian law the following are considered as
aircraft ( ex: helicopters, gliders, and balloons). Hovercraft
is excluded

12

•1. Air Carriage of persons, goods or baggage
• The convention applies to each passenger who is on board on
the aircraft by virtue of a carriage contract
• The convention does not apply to clandestine travelers
• The convention does not apply to the carrier crew members as
they travel on board by virtue of labour contracts, fulfilling their
obligations and duties
• The carriage of passengers includes the carriage of their
baggage.
• NOT dealing with the liability of carriers to:
• –handling agents, caterers, maintenance companies
• –lenders and lessors - financing arrangements
• –airport authorities e.g. clean-up expenses
• –governmental bodies – immigration, customs
• –labour or employment law

13

1. Air Carriage of persons, goods or baggage

• The carriage of goods must be according to a contract of
carriage, otherwise the convention shall not be applied
• The air mail services are not governed by the rules of
Warsaw convention (art.2 para.2)
• The convention does not apply to international carriage
performed by way of experimental trial ( art . 34)
• The convention does not apply to carriage performed in
extraordinary circumstances, outside the scope of
business ( art. 34)

14

Definition of aircraft

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

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

15

Nationality of aircraft

16

Nationality of aircraft
The principle :
 Aircraft holds the nationality of the state of registration
 Aircraft can not be registered in one more state
 Privileges such as the monopoly of internal air transport
could be granted in the state in which the aircraft is
registered
5. Owned by an Individual = Egyptian
6. Owned in co-property = All Egyptians
7. Owned by a company = registered in Egypt +
 Partnership= all partnership are Egyptians
 Partnership by share = joint liable partners are Egyptians
 Joint stock = majority of board members + chairman are
Egyptians
17

2. The carriage must be international

According to article 1.2 of the conventions, the carriage is
deemed international when ;
2. The two points of departure and destination are in two
different states
3. When the two points of departure and destination are
situated in a single state but there is an agreed stopping
place in a different country.
4. The Warsaw Convention only applies to the air carrier and
does not apply to the airplane manufacturer or
component part manufacturer which may bear
responsibility for the loss. The Warsaw Convention applies
only to carrier engaged in "international transportation".

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3. The air carriage is done for a reward

1. All kinds of reward are accepted : (money or any other
form)
2. The convention shall apply regardless the intention to
realize profit ( ex; the reward covers only the cost and
expenses)
3. Free carriage is not included within the scope of Warsaw
convention
4. However, if a free carriage is performed by an air company
, the convention shall apply. ( presumption of a reward)
5. The reward should be in all kind of flights ; scheduled, taxi-
flight, roundtrip, combined trip

19

Evolution

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

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

hese Conventions are known as the Warsaw System and the Montreal
Convention. They represent the liability law in international air
transport, regulating the relationship between an air carrier and its
21
customer, passenger, consignor or cargo shipper.

Evolution

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

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

oday, the question of which law to apply, an issue of great
importance to the resolution of aviation loss and damage
disputes is anything but uniform or simple 22

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

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

he Hague Protocol (1955),

he Guadalajara Convention (1961),

23
he Guatemala City Protocol (1971),

LIABLITY CONVENTION RATIFICATIONS

N Members – 192 States

he Chicago Convention – 190 States

he Warsaw Convention – 152 States

he Hague Protocol – 137 States

he Guadalajara Convention – 86 States

ontreal Protocol No. 4 – 57 States
24

THE WARSAW CONVENTION OF 1929

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

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

25


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

t has evolved into one of the most important instruments of
private international law.
26


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

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

27

Major areas in which Warsaw has achieved uniformity

28

Major areas in which Warsaw has achieved uniformity

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

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

he major objective, sought to establish certainty in air litigation
by limiting the potential liability of a carrier in accidents that
involve personal injury or death to passengers. In exchange for29
this limit of liability, the Warsaw Convention reversed the

Documents of carriage

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

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

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

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

Regime of liability

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

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

31

Reversed burden of proof

he Warsaw Convention conforms with

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

he reversed burden of proof reflects a quid pro quo, in the sense
that the burden of proof was placed on the carrier to
counterbalance the monetary limit of liability in Art. 22. The
carrier is liable according to the limit fixed by the convention.
For passengers the limit set out in the Convention is 125,000
francs.. 32

Limited compensation cellings

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

t also places a liability of 250 francs Poincare per kilogram for
loss or damage to registered baggage and of cargo, and 5,000
francs Poincare per passenger for loss or damage to
unregistered baggage which the passenger takes charge of
himself.
33

Jurisdiction

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

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

he Warsaw Convention provides that a plaintiff can file a
lawsuit, at his discretion, in one of the following venues: (a) the
career's principal place of business; (b) the domicile of the
carrier; (c) the career's place of business through which the 34

Language

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

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

35

From Evolution to Evaluation

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

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

owever, the Warsaw System no longer fulfills the goal of uniformity,
and the aviation industry is no longer a weak and emerging industry
36


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

hen it comes to the rules governing the documents of carriage,
the convention is outdated, making it impossible to use an
electronic record or ticketless travel since the ticket has to be
delivered to the passenger (art. 3).
37


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

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

oreover, some of the terms that are used in the Warsaw
Convention have caused enormous difficulties of interpretation
and application (such as “accident” and “bodily injury” in art. 17
and “willful misconduct” in art. 25).
38

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

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

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

tates met in The Hague to update the Warsaw Convention's
provisions. Protocol to Amend the Warsaw Convention was done
at The Hague on 28 September 1955. It came in into force on 1st
August 1963. The Hague Protocol doubled the liability ceiling for
40
passenger injury or death to about $16, 600 USD / 250,000 francs

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

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

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

41

The Guadalajara Convention of 1961

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

t distinguishes between the actual and contracting carrier,
and provides that both are liable to the passenger, as if they
were the contracting carrier for the purposes of the Warsaw
Convention. The passenger is entitled to claim against either
or both the actual and contracting carrier for bodily injury,
loss or damage to baggage and cargo or for delay, but the
total liability remained subject to the limits.
42

Guatemala City Protocol of 1971

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

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

hat is, carriers were unable to deny responsibility to compensate
passengers where they were without fault. However, as this type of
immunity might be considered contrary to public policy in many 43
States, the Guatemala City Protocol failed to get the required number

Guatemala City Protocol of 1971

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

n interesting feature of the Guatemala City Protocol is that
although it provides for a limit of about 1,500,000 Poincare
francs per passenger, there is also proviso for a domestic
addition if a state that is party to the protocol desires to have
a higher limit. The Protocol prescribed for an unbreakable
liability limit of 1,500,000 francs, imposed absolute or ‘risk’
44
liability on carriers.

The Montreal Protocols (1975)

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

nother major modification concerns the method of calculating the
liability limits by turning from a exclusive gold monetary basis to a dual
system, allowing countries that are members of the IMF to base
passenger, baggage, and cargo liability on Special Drawing Rights,
whereas countries not members of the IMF would declare liability
limits in monetary units based on gold. This was done in order to
eradicate the problems connected with the hardship of valuing the
outdated francs Poincare. 45


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

ontreal Protocol No 4, done at Montreal on 25 September
1975 Montreal Protocol No. 4 amended the cargo provisions
of the Warsaw/Hague regime without touching the
passenger provisions. It raised cargo liability limits to some
degree. Liability is absolute and unbreakable, unless the
consignor makes a ‘special declaration’ informing the carrier
of the particular value of the cargo. 46


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

47

Outcome

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

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

48

Outcome

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

herefore, due to the recognition of the inadequacies of the
Warsaw and the Warsaw-Hague Convention and ICAO's
repeated failed attempts to rectify the situation, many States,
groups of States, and carriers took unilateral actions and
directed their airlines to raise their limits of liability. As such,
due to differences in these unilateral actions, the international
aviation world finds itself in a confused state due to too many
different systems. The unification of law no longer exists. 49

PRIVATE CARRIER AGREEMENTS AND UNILATERAL STATE ACTIONS

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

ccordingly, as none of the following actions replace the
Convention, they merely serve as intermediary agreements,
which do not constitute a strong legal regime that courts can
apply. Confronted with consumer, media, and public opinion, it
became difficult to justify the low limits imposed on international
53

The Rome Convention of 1952

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

owever, a diplomatic conference gathered in 1978 under
ICAO auspices adopted a protocol for the amendment of the
Rome Convention. The fundamental characteristic of the
protocol is a considerable increase in the limits of liability and
the expression of the limits in the Special Drawing Rights of
the IMF.
54

The Montreal Agreement (1966)

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

Thus Montreal Agreement can be characterized as a private
agreement, signed by each airline, relinquishing the Warsaw
Convention's liability restrictions on personal injury up to
$75,000. It retains the requirement that the claimant proves
willful misconduct to recover more than $75,000, and waives the
defenses available under Article 20(1). Though not an
intergovernmental agreement, convention or treaty, the United
States made it legally binding under its regulatory powers over
55
certification of all domestic and foreign carriers serving the

The Montreal Agreement (1966)

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

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

56

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

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

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

57

IATA Intercarrier Agreement (1996)

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

t was described as "the most dramatic development in the
66 year history of the Warsaw Convention," the agreements
soon became a great success and have been signed by a
large number of airlines.
58

THE MONTREAL CONVENTION (1999)

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

he Montreal Convention predominates over any other rules,
which have applied to International Carriage by Air, which have
traditionally been the Warsaw Convention of 1929 and the
amendments there to including the Hague Protocol, Montreal
Protocols Nos. 1, 2, 3 and 4, the Guadalajara Convention and the
IATA Intercarrier Agreements.
61


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

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

o substantive changes has been made regarding the applicability of
the Convention. Only does the Convention incorporate the
Guadalajara Convention in chapter V. 62

Problem of uniformity

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

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

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

his measure would facilitate convincing of States to ratify the
63


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

emoval of Limits of Liability in Death and Bodily Injury Cases The
most important article of the Montreal Agreement is Article 21.1,
which removes the limitations of liability incorporated in Article 22 of
the Warsaw Convention with respect to carrier liability for death or
bodily injury of passengers in international air transportation.
64


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

here damages are requested in excess of that amount, the
carrier is liable for unlimited damages, unless it can prove that
the damages were not due to the negligence of the carrier or its
agents or that the damage was entirely due to the negligence of
another party. 65


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

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

66


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

rt. 49 states the mandatory nature of the Convention and has the

ame substance as the Warsaw Convention Art. 32. Any action for
damages can only be brought subject to the conditions and limits set
out in the Convention as was the case in the Warsaw Convention (Art.
29 in the Montreal Convention). However, to the text of the Warsaw
Convention (Art. 24) a few words have been added in an attempt to
clarify the exclusiveness of the Convention which had been disputed
for years in the US courts 67


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

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

68


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

69


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

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

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

rovides that the States shall require their carriers to maintain
adequate insurance, and that any State Party can require evidence of
70


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

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

he 5th jurisdiction is not an innovation. Already at the Guatemala
City Conference the US insisted on a 5th jurisdiction. In fact, the
Montreal Convention just gives back to the claimant the most
logical jurisdiction deprived of claimants by the Warsaw
Convention. 71


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

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

72


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

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

73


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

he Montreal Convention also makes significant changes, which
had been largely implemented by Montreal Protocol Nos. 3
and 4, with respect to cargo. The carrier’s liability for lost or
damaged of cargo is limited to 17 SDRs per kilo and these
limits, as they are under Montreal Protocol No. 4, are
unbreakable. Article 22 of the Montreal Convention also
provides for proration with respect to loss, damage,74


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

he limitation on liability for damages caused by delay and for
loss, destruction, damage or delay of baggage is not applicable if
it is proven that the damage was sustained resulting from an act
or omission of the carrier or its agents “done with intent to
cause damage or recklessly and with knowledge that the
75
damage would probably result.


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

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

76


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

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

77


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

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

ost importantly it enhances the international rule for air
carrier’s liability by providing a structure of unlimited and
more equitable passenger compensation governing injury or
death. 78


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

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

79

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

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

80

MONTREAL
VERSUS
WARSAW

81

COMPEN$ATION HAS ALWAYS BEEN THE PROBLEM

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

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

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

HE MONTREAL CONVENTION OF 1999

Incorporating most of the liability provisions of the IATA Intercarrier
Agreements, the Convention establishes a two-tier liability system,
with strict liability for death or bodily injury up to 100,000 SDRs, and
presumptive liability in an unlimited amount; 82

THE MONTREAL CONVENTION OF 1999

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

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

No provision was made for recovery of emotional damages;

Carriers must maintain adequate insurance to cover their liability;

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

The claimant may recover court costs and attorney’s fees if the amount of
damages awarded exceeds any written settlement offer made within six
months of the accident but before suit is commenced; 83

Tier 1 : Strict liability

84

Tier 2 : unlimited liability

85

THE MONTREAL CONVENTION OF 1999

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

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

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

rbitration clauses may be included in cargo air waybills.
86

Plaintiff Advantages of M99

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

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

early certain recovery beyond (to the extent of provable
damages)

bility to file suit in home country

ut . . . No recovery if only damages were emotional, and no
recovery of punitive damages.
87

Carrier Defenses

he transportation was not “international carriage”

he event was not an “accident”

he event occurred before embarkation or after disembarkation

he damage did not constitute “bodily injury”

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

bove 100,000 SDRs, the carrier was not negligent, or the
88
damage was “solely” caused by a third party.

The Warsaw Regime, or M99 Apply if:

he place of departure and place of destination are:

oth in "Warsaw System" or M99 States

r

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

nd both States have ratified a common liability Convention or
89

Which Legal Regime Applies?

he original Warsaw Convention of 1929, unamended;

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

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

he Montreal Convention of 1999, or

omestic law, if it is deemed that the transportation falls outside
the conventional international law regime, or if the two relevant
States have failed to ratify the same liability convention. 90

Chubb & Son v. Asiana Airlines

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

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

ecause the US and South Korea were “not in treaty relations
with regard to the international carriage of goods by air”,
federal subject matter jurisdiction was deemed not to exist. The
court concluded that “no precedent in international law allows
the creation of a separate treaty based on separate adherence
by two States to different versions of a treaty, and it is not for
the judiciary to alter, amend, or create an agreement between 91

THE IMPACT OF CHUBB

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

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

hubb also became a major catalyst for U.S. Senate ratification of the
Montreal Convention of 1999, which entered into force on November
92
4, 2003.

CHAPTER 2
The framework of air carrier liability

94

SUBJECT MATTER LIABLITY

95

ACCIDENT, INJURY, CAUSATION & LOCATION

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

The carrier shall be liable for damage sustained in the event
of the death or wounding of a passenger or any other bodily
injury suffered by a passenger, if the accident which caused
the damage so sustained took place on board the aircraft or
in the course of any of the operations of embarking or
disembarking.”

96


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

The carrier shall be liable for damage sustained in the event
of the death or wounding of a passenger or any other bodily
injury suffered by a passenger, if the accident which caused
the damage so sustained took place on board the aircraft or
in the course of any of the operations of embarking or
disembarking.”

97


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

ssues arising under Article 17:

What kind of "accident" must have occurred?

hat types of injuries are considered by the term "damage
sustained in the event of death or bodily injury"?
98

EVENTS THAT CAN BE

100

Inherent Risks of Air Transportation

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

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

raig v. Compagnie Nationale Air France (1994), (9th Circ. 1994).
102


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

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

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

103


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

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

104


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

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

he court held that hijacking was an accident covered by Art. 17. This
line has been followed in the cases since.
105

In-Flight Illnesses

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

rys v. Lufthansa German Airlines (1997).

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

he text thus implies that, however ‘accident’ is defined, it is the cause
106

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

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

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

owever, if the airline does not carry a cardioverter at all, an accident
might not have occurred. This leads to an undesirable result as it does
not promote the providing of help to a passenger in need. One court
has taken a step further and come to the conclusion that failure 107 to

Passenger-to-Passenger Interactions

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

ot all courts are of the opinion that only inherent risks of air travel are
covered by “accident” in Art. 17. In Barratt v. Trinidad & Tobago
Airways Corp.96 the court stated that the definition in the Saks case is
in no way limited to those injuries resulting from dangers exclusive to
aviation, and that neither does Art. 17
108


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

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

109


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

seated adjacent to her had harassed her she complained to a crew member who immediately reassigned her

to a new seat. the court held that no accident had occurred.

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

departure from the normal, expected operation of a flight, and that, moreover, sexual molestation is not a risk

characteristic to air travel.

110

WHAT IS AN ACCIDENT

111

ir France v. Saks

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

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

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

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

Where the evidence is contradictory, the trier of fact must determine
whether an accident, so defined, has occurred. 112

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

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

113

lympic Airways v. Husain

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

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

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

naction can be an accident irrespective of the conclusions of
114
intermediate appellate courts in England and Australia.

The Australian High Court Povey v. Qantas Airways

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

115

The Australian High Court Povey v. Qantas Airways

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

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

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

116

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

117

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

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

he U.K. and Australian Courts ask whether the injury was
caused by an “accident.” While the U.S. Supreme Court
concludes that inaction can constitute an “unexpected event
118


motional Damages

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

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

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

3) emotional damages are difficult to measure; and 120


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

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

121

Eastern Airlines v. Floyd

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

he U.S. Supreme Court held that Article 17 does not allow
recovery for purely mental injuries. This conclusion was
based on the French translation (interpreting "lesion
corporelle" to mean "bodily injury"),and on the primary
purpose of the Warsaw Convention -- limiting liability in order
to foster growth of the infant airline industry. 122

Eastern Airlines v. Floyd

riting for the majority, Justice Marshall concluded:

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

123

Emotional damage
The explicit imprecision and ambivalence of the Supreme
Court’s dictum in Floyd -- “we express no view as to whether
passengers can recover for mental injuries that are
accompanied by physical injuries” -- left the door ajar for all
sorts of litigation.
•For example, to recover under Article 17, need the emotional
injury result from the physical harm, or may the physical harm
result from the emotional injury? In other words, may the
physical injury simply be the physical manifestation of
emotional harm (e.g., what if plaintiff was not physically
touched, but suffered hives, diarrhea, or hair loss because of
her fright), or must there instead be some direct physical
contact which produces a bruise, lesion, or broken bones
causing emotional harm?
124

US Federal District Court in Jack v. Trans World Airlines

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

o recovery allowed for emotional distress;

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

nly emotional distress flowing from the bodily injury is
recoverable.
125
hile agreeing that mental injuries flowing from physical injuries

The House of Lords in Morris v. KLM

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

The issue was whether a 16-year old girl could recover for the
clinical depression she suffered after being fondled by another
passenger aboard a flight from Kuala Lumpur-Amsterdam. Lord
Nicholls wrote, “The expression ‘bodily injury’ or ‘lesion
corporelle’, in article 17 means, simply, injury to the passenger’s
body.” However, he observed that the brain too, is part of the
body, and sometimes subject to injury; the question as to whether
the brain has suffered an injury is a question of medical evidence.
126

The House of Lords in Morris v. KLM
The inference is that when medical science has advanced to
the level that it can point to an injury in the brain causing
clinical depression, then such damages may be recoverable.
•cThough Lord Steyn concluded that Article 17 does not allow
one to recovery for emotional damages absent physical
injury, he would allow recovery under two circumstances: (1)
pain and suffering resulting from physical injury; and (2) in
cases where there is physical manifestation of emotional
harm:
•“if a relevant accident causes mental injury or illness which in
turn causes adverse physical symptoms, such as strokes,
miscarriages or peptic ulcers, the threshold requirement of
bodily injury under the Convention is satisfied.”
127

US Court of Appeals in Ehrlich v. American Airlines

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

128

US Court of Appeals in Ehrlich v. American Airlines

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

he U.S. delegate at the conference erroneously asserted that the
state of Article 17 jurisprudence in U.S. courts at the time allowed
recovery for mental injuries even when such injuries were not
caused by physical injuries, and sought to include legislative history
to the effect that M99 was not intended to disturb that
jurisprudence. The court held that those views were wrong, and that
prevailing American jurisprudence required that, to recover for
emotional damages, those emotional damages must have been
caused by physical injury.
129

Conclusion

No recovery allowed for emotional distress;

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

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

Only emotional distress flowing from the bodily injury is
recoverable. Jack v. Trans World Airlines, embraced the
fourth alternative, and has been widely followed.
130

Conclusion

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

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

his Clash of the Titans does not square well with a
Convention intended for the Unification of Certain
Rules for International Carriage by Air. 131

When the accident should take place?

132

When the accident should take place?

133

When must the Accident Take Place?

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

he exact distinction of the time period is not made
clear in Art. 17, but it is generally accepted that the
liability begins when the passenger is put in the care of
an employee of the carrier and ends when the
passenger enters the arrival hall at the point 134 of

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

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

135

In Herman v. TWA (1972)
n aircraft was hijacked, diverted to the Middle East and forced
to land in the desert near Amman, Jordan. For six days the
passenger and crew members were held captive on or near the
aircraft, whereupon they were taken to a hotel and the
following day released.

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

he court refused the argument and stated that the events
together made one continued accident.
136

In Husserl v. Swiss Air Transport Company
1975

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

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

137

In the Course of Embarking or Disembarking

This three-part
test was first set
down in
Day v. TWA 1975

138

Day v. Trans World Airlines

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

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

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

. What was the imminence of their actual boarding; and

139
. What was the physical proximity of the passengers to the

Day v. TWA 1975
t has been argued that Art. 17 was not meant to cover damages
caused by accidents in the terminal building, and furthermore,
that it was meant to cover only the inherent risks of aviation.

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

t therefore seems reasonable to focus on the control of the
140

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

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

he court further stated that “control remains at least equally 141
as

In Air-Inter v. Sage (1976)

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

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

s the entrance hall is a public place beyond the control
of the carrier, the process of embarkation was not
considered to have commenced. 142

MacDonald v. Air Canada (1971)

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

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

143

Moses v. Air Afrique (2000)
he court referred to the three part test (activity, location and
control) set down in Day v. TWA and stated that passengers are
not in the course of disembarking when they are injured in the
public areas of transport terminals, and similarly that they have
finished disembarking after clearing immigration, on their way
to or already in the baggage claim areas.

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

144


145

Strategies for the cargo Liability

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

.The Transportation Was Not An .The Plaintiff Failed to File a
International Movement Timely Claim or Suit

.The Movement Was Not .The Plaintiff Was
Transportation By Air Contributory Negligent

.There Is No Common Treaty In .The Carrier Took “All
Force Necessary Measures” to
Avoid the Loss, or It Was
.The Air Waybill Was Deficient Impossible to Do So
147
.The Baggage Claim Check Was

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

.The Transportation Was Not An International Movement

.The Movement Was Not Transportation By Air

.There Is No Common Treaty In Force

.The Air Waybill Was Deficient

.The Baggage Claim Check Was Deficient

.The Carrier Engaged in Wilfull Misconduct 148

1- The Transportation Was Not International Carriage

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

r

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

149

2- The Movement Was Not Transportation By Air

arsaw Convention, Art. 18(3):

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

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

All the parties agree that the loss of the . . . shipment at Emery’s
warehouse, located near but nonetheless outside the boundaries of
Kennedy Airport. It would appear, therefore, that the plain language
of Article 18 would exclude the loss from the scope of the Warsaw 150

2- The Movement Was Not Transportation By Air

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

n charge of the carrier

nd either

n board an aircraft

r

t an airport
151

The Montreal Convention of 1999

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

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

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

oreover, under Article 38, in the case of intermodal
transportation (“combined carriage”), a clause can be inserted
into the contract of carriage making the Convention applicable
152

3- There Is No Common Treaty In Force

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

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

153

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

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

Place and date of execution;

Place of departure and destination;

Agreed stopping places;

Name and address of consignor;

Name and address of the first carrier;

Name and address of the consignee; 154

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

.Place of departure and destination;

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

.The Warsaw Convention governs liability.

he Hague Protocol simplified the documentary requirements.

he liability ceiling could only be breached under two circumstances:

.No air waybill had been made out, or

.The waybill failed to give notice that liability could be governed by the
Warsaw Convention.
155

Evolving Jurisprudence

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

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

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

ujitsu Ltd. v. Federal Express (2nd Cir. 2001):
156

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

he mandatory nature of documentation requirements has been
eliminated.

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

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

urther, under MP4 and M99 consignors may use simplified
electronic records to facilitate shipments. 157

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

he contract of carriage,

he number of packages,

he weight of the shipment,

nd the apparent condition of the cargo.

ince under Article 22 liability is determined by the weight of the
shipment (17 SDRs per kilogram), unless a special declaration of
value was made at origin and an additional sum paid, the
158
consignor is motivated to specify the weight.

Montreal 99, Article 10

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

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

ence, misstatements on the air waybill or customs documents
should be avoided.
159

5- The Baggage Claim Check Was Deficient

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

.The number of the passenger ticket;

.Number and weight of the packages; or

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

he Hague Protocol

ague reduced to two, the ways in which the liability ceiling could be
pierced: 160

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

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

rgo: strict and narrow construction of Warsaw’s requirements.

rticle 3(5) of M99:

Non-compliance … shall not affect the existence or the validity
of the contract of carriage, which shall, nonetheless, be subject
to . . . this Convention including those [rules] relating to
limitation of liability.”
161

6-The Carrier Engaged in Wilful Misconduct

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

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

162

Willful Misconduct

he Warsaw Convention:

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

he Hague Protocol:

o limit on liability where the damage resulted from an act or
omission of the carrier with intent to cause damage, or done
recklessly with knowledge that damage would probably result.

99: 163

THE DEFENDANT’S « air carrier »CASE

.The Plaintiff Failed to File a Timely Claim or Suit

.The Plaintiff Was Contributorily Negligent

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

.The Loss or Damage Was Caused by a “Common Law”
164

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

amaged Baggage: 3 days

amaged Goods: 7 days

elayed Baggage or Goods: 14 days

tatute of Limitations: 2 years

IME LIMITS FOR FILING NOTICE ON CARGO

WARSAW HAGUE, MP4 & M99

AMAGE 7 DAYS 14 DAYS

ELAY 14 DAYS 21 DAYS 165

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

similar provision was included under Art. 20 of M99:

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

ence, comparative fault principles apply.

- The Carrier Took “All Necessary Measures” To Avoid the Loss, or It
Was Impossible to Do So 166

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

P4 and Art. 18 of the Montreal 1999 exonerate the carrier from
liability if it proves the destruction, loss or damage of the cargo
resulted from:

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

. defective packing by someone other than the carrier,

. an act of war or armed conflict, or

. an act of the public authority in connection with the
transportation of the cargo.
167


168

THE GENERAL CONCEPT OF DELAY

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

n continental law, an obligation must be possible to fulfill. Delay
appears when the performance of the obligation is due to late
Fulfilment of the obligation. However, non-performance is
normally not included in the definition of delay in those
juridictions.
169

Air law 2012

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