Accidents have been common to air travel since flight began. As with any new mode of transport, aviation necessitated the development of rules concerning the responsibilities of carriers and the rights of passengers. The inclusion of rules with respect to carrier liability for passengers, as well as baggage and cargo, was inevitable.
International air carrier liability today is governed by a complex web of treaties and international agreements. These agreements are supplemented by a range of national and regional arrangements.
Against this background we examine the development of air carrier liability regimes from the 1929 Warsaw Convention to the 1999 Montreal Convention and the future of such regimes. We set out the key provisions of the relevant treaties and instruments, and we address the often-hard questions regarding their operation. In so doing it becomes clear that the establishment of an international framework for air carrier liability has been difficult. As a result, in addition to state-based agreements, liability regimes have, from time to time, been governed by agreements made between carriers.
DEVELOPMENT OF WARSAW TO MONTREAL
Air carrier liability for international carriage of passengers, baggage and cargo is governed by a series of international conventions (or treaties) and various instruments, which amend those conventions. The first such convention was the 1929 Warsaw Convention and the most recent is the Montreal Convention of 1999. Each successive convention offers â in general â more generous compensation for passenger injury or death and for loss, damage or delay in terms of baggage or cargo.
The following passages provide the rationale and some background to the formation of the first set of legal rules governing international air carrier liability.
Origins of the Warsaw Convention of 1929
Legal rules of carrier liability in international air transport owe their origin to the efforts of a number of international aeronautical organizations in the 1920s, during the infancy of commercial aviation, to create a uniform legal regime, and shield carriers from potentially devastating aviation disaster damage awards. The absence of uniform law governing international commercial aviation and the consequent plethora of conflicting national laws on the subject led thee organizations to pass resolutions calling upon governments to formulate a uniform system of private air law on the foundation of the Paris Convention of 1919.1
A Search for a Universal Cap on Liability
At two international conferences held between 1925 and 1929, States debated the merits of constructing a system of harmonized rules governing liability for international carriage by air. Although cross-border air travel was still in its infancy, States and their air carriers realized that uniform standards of liability could not exist in a legal environment where national courts applied inconsistent conflict of laws (choice of law) rules to select a governing law in a particular dispute. More important, from the airlinesâ perspective, was the need to create a universal cap on their liability for damages arising out of international air transportation. According to the airlines, their fledgling status, combined with uncertainty surrounding the causes of many airline accidents, made the uniquely vulnerable to lawsuits. Unlimited liability would deter investors and limit the scope of services that air carriers would be able to provide. Other options besides a universal liability cap were available to narrow the industryâs exposure. Airlines concerned about risky cross-border transit could have negotiated liability limits or other protections into their contracts of carriage, perhaps foregoing some profit through reduced fares in exchange for the consent of passengers or shippers to a fixed level of damages in the event of an accident.2
It was at these 1925 and 1929 conferences that the original legal framework for air carrier liability principles were established. A draft text of the Warsaw Convention, formally titled the Convention for the Unification of Certain Rules Relating to International Carriage by Air, was considered at this second conference and signed by 23 countries on 12 October 1929. The influence of the Warsaw Convention can be seen throughout the 20th century; it provided the foundation and sets out the underpinnings of modern air carrier liability law.
The Convention came into effect on 13 February 1933, that date being ninety days after the deposit of the fifth instrument of ratification with the Polish Government.
Principles of the Warsaw Convention
By providing a set of uniform rules, the Convention eliminated many of the troublesome conflict of laws questions which would otherwise arise. It resolved jurisdictional questions, prescribed a limitation period, and by an elaborate set of provisions created a uniform system of documentation. By establishing a uniform law as to the carrierâs liability, the Convention side-stepped most choice-of-law problems. It must be admitted, however, that there is not complete agreement among courts and commentators as to the precise effect of the Convention on choice-of-law questions.
In the liability area, the main feature of the Convention was a reversal of the burden of proof. A carrierâs liability under common law rules is based on negligence, with the burden of proof on the plaintiff. Under the Convention it remained a fault-based liability, but fault would be assumed on proof of damage, and did not have to be established by the plaintiff. The carrier could escape liability by proving that he, and his servants and agents, had taken all necessary measures to avoid the damage, but the burden of establishing this defence was on him.
To balance this reversal of the burden of proof, the liability of the carrier, in terms of the amount of damages to be awarded, was limited. The Convention fixed maximum sums, 125,000 gold francs in the case of injury to a passenger; the plaintiff could only recover more that this figure if he discharged the burden of proving âwilful misconductâ on the part of the carrier, his servants or agents.â
Kirby J of the High Court of Australia made this comment on the nature of the Convention:
A study of the minutes of the Second International Conference on Private Aeronautical Law that preceded the adoption of the Warsaw Convention in its original form in 1929 bares out the conclusion that the text ultimately endorsed was not so much the product of considerations of principle, justice and equity as of international and domestic politics, business pressures, a consideration of the technical advances in aviation, as well as changing policy judgments and the differing approaches of municipal judges to such claims. These considerations have continued to effect the later revisions of the text [of the Convention].3
Central to the Warsaw Convention (and the ensuing Warsaw regime) is the provision of air carrier compensation for passenger injury or death. Notwithstanding that this provision is fundamental to that regime, key terms in relation to air carrier liability are not defined in the regimeâs instruments.
Article 17 of the 1929 Warsaw Convention, for example, provides that:
[t]he carrier is 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.
Among other words and terms, none of either âbodily injuryâ, âaccidentâ, âembarkingâ or âdisembarkingâ are defined in the Convention.
This definitional lacuna has understandably caused both uncertainty and ambiguity as to the meaning and scope of relevant words and terms. Courts in jurisdictions around the world have filled this void through thousands of decisions regarding the interpretation of such words and terms, the most important of which is arguably âaccidentâ.
The Term âAccidentâ
Definition
For the carrier to be liable, there must have been an âaccidentâ under Article 17 of the Warsaw Convention, a...
