Contracts of Carriage by Air

Malcolm Clarke, Malcolm A. Clarke

• Publisher: Informa Law from Routledge
• Year: 2013
• Print ISBN: 9781843118879
• eBook ISBN: 9781135115760
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Contracts of Carriage by Air, Second Edition contains annotated analysis of the provisions of the international conventions governing the carriage of goods and passengers by air.

This book provides you with practical advice and brings you:

• An overall view of the two liability regimes, followed by a short history of the Warsaw Convention in its various versions and what led to agreement on a single regime, the Montreal Convention, as well as the threat to uniformity posed by EC Directives.
• A statement of the rules of interpretation applicable to conventions of uniform law, illustrated mainly by decisions of the air conventions.
• Commentary on the text of the 1999 Montreal Convention together with commentary on the text of the 1967 Warsaw Convention.
• Reference to decisions of the courts not only of the UK but also those of other common law countries, notably the USA, and countries of civil law, notably France and Germany.

PART ONE
Introduction to the Conventions on Carriage by Air

CHAPTER ONE
The Scheme of Liability

1.1 The Montreal Convention (MC)

The general structure of the Warsaw Convention (WSC) and many of its provisions were retained in MC, which came into force in the UK on 28 June 2004. A significant feature of MC is that, unlike other transport law regimes, in certain cases the carrier’s liability is absolute. Writing in 1996,¹ a Legal Adviser to the US Department of State said that previously "The tort law concept of unlimited liability was anathema . .. . Today, it is a fixture of international air law that the US Government would be most reluctant to see disappear."

The object of MC, like that of WSC, was to avoid costly litigation, protect the rights of the users of air carriage and to set reasonable limits upon the liabilities of the carrier.² Under MC the carrier is liable for occurrences during the carriage which cause injury or death or damage. It is also liable for damage caused by delay. The amount of damages recoverable is significantly larger than under WSC and the range of defences more limited. Jurisdiction has been extended to the "‘fifth jurisdiction" (where the passenger has his principal residence).

1.1.1 Personal injury and death

The carrier is liable for damage sustained in the event of the death of or personal (physical) injury to a passenger if the accident which caused it occurred during carriage (article 17.1).³

However, to the extent that the damage was caused by or contributed to by the negligence or other wrongful act or omission of the claimant, the carrier is wholly or partly exonerated (article 20).⁴

As to the amount of damage, the carrier is liable in full for the actual loss suffered by the claimant. However, to the extent that that loss exceeds 100,000 SDRs,⁵ the carrier will not be liable if either (a) the damage was not due to the carrier or (b) the damage was solely due to the negligence or other wrongful act of a third party (article 21).⁶

It is a defence to the claim that it is out of time (article 35) or that it has been brought in the wrong forum (article 33). However, as to the latter, the range of possibilities was extended by MC to the "fifth jurisdiction" (where passengers have their principal residence: article 33.2).

1.1.2 Baggage

The carrier is liable for damage sustained in the event of the destruction, loss of, or (physical) damage to any "checked"’ (registered) baggage if it was caused by an occurrence during carriage, unless (and then only to the extent that) it resulted from an ‘‘inherent defect’’ in the baggage (article 17.2).⁷

The carrier is liable for damage sustained in the event of the destruction, loss of, or damage to "unchecked" (cabin) baggage if it was caused by the fault of the carrier or that of its servants or agents (article 17.2 in fine).

However, to the extent that the damage sustained in respect of baggage (checked or unchecked) was caused by or contributed to by the negligence or other wrongful act or omission of the claimant, the carrier is exonerated (article 20).⁸

In the absence of a special declaration of interest, the carrier’s liability for the damage sustained is limited in amount (article 22.2) unless the claimant can establish that the destruction, loss or (physical) damage was caused intentionally or by reckless behaviour on the part of the carrier, its servants or agents (article 22.5).

It is a defence to the claim that it is out of time (article 35) or that it has been brought in the wrong forum (article 33).

1.1.3 Cargo

The carrier is liable for damage sustained in the event of the destruction, loss of, or (physical) damage to cargo, if it was caused by an occurrence during carriage (article 18.1), unless (article 18.2) the carrier proves that it resulted from:

1. inherent defect, quality or vice of that cargo; or
2. defective packing of that cargo, packing performed by a person other than the carrier or its servants or agents; or
3. an act of war or armed conflict; or
4. an act of a public authority carried out in connection with the entry, exit or transit of the cargo.

However, to the extent that the carrier proves that the damage sustained was caused by or contributed to by the negligence or other wrongful act or omission of the claimant, the carrier is exonerated (article 20).

The carrier’s liability is limited in amount (article 22.3).⁹ It is a defence to the claim that it has been brought in the wrong forum (article 33) or that it is out of time (article 35).

1.1.4 Delay

The carrier is liable for damage caused by delay unless it is proved that all necessary measures had been taken to avoid the damage or that it was impossible to do so (article 19).

To the extent that the damage was caused by or contributed to by the negligence or other wrongful act or omission of the claimant, the carrier is exonerated, such to be proved by the carrier (article 20).

The carrier’s liability is limited in amount (article 22.1) unless the claimant can establish that the damage was caused by intentional or reckless behaviour on the part of the carrier, its servants or agents (article 21.5).

It is a defence to the claim that it has been brought in the wrong forum (article 33) or that it is out of time (article 35).

1.2 The Warsaw Convention (WSC)

1.2.1 Personal injury and death

The carrier is liable for damage sustained in the event of the death of, or physical injury to, a passenger if the accident which caused the damage occurred during carriage (article 17), unless the carrier proves that it had taken all necessary measures to avoid the damage or that it was impossible for it to do so (article 20).

However, if the carrier proves that the damage was caused by or contributed to by the negligence of the claimant, the court might exonerate the carrier wholly or partly, in accordance with the relevant provisions of the lex fori (article 21.1). The carrier’s liability is limited in amount (article 22.1) unless the claimant can establish that the damage was caused intentionally or by reckless behaviour on the part of the carrier, its servants or agents (article 25). It is a defence to the claim that it was brought in the wrong forum (article 28) or that it is out of time (article 29).

1.2.2 Registered baggage

The carrier is liable for damage sustained in the event of the destruction, loss of, or damage to, registered baggage, if it was caused by an occurrence during carriage (article 18.1), unless the carrier proves that it had taken all necessary measures to avoid the damage or that it was impossible for it to do so (article 20).

However, if the carrier proves that the damage was caused by or contributed to by the negligence of the claimant, the court might exonerate the carrier wholly or partly, in accordance with the relevant provisions of the lex fori (article 21.1).

The carrier’s liability is limited in amount (article 22.2(a)) unless the claimant can establish that the destruction, loss or damage was caused by intentional or reckless behaviour on the part of the carrier, its servants or agents (article 25). It is a defence to the claim that it was brought in the wrong forum (article 28) or that it is out of time (article 29).

1.2.3 Unregistered baggage

Unregistered (cabin) baggage is outside the scheme of the Convention. The carrier’s liability, if any, depends on national law: in countries of common law the tort of negligence or bailment.

1.2.4 Cargo

The carrier is liable for damage sustained in the event of the destruction, loss of, or damage to cargo, if it was caused by an occurrence during carriage (article 18.2), unless the carrier proves that it was solely caused by excepted causes (article 18.3). These include:

1. inherent defect, quality or vice of that cargo;
2. defective packing of that cargo performed by a person other than the carrier;
3. an act of war or armed conflict; and
4. an act of a public authority carried out in connection with the entry, exit or transit of that cargo.

To the extent that the carrier proves that damage was caused by or contributed to by the negligence or other wrongful act or omission of the claimant, the carrier is wholly or partly exonerated (article 21.2). In any event, the carrier’s liability is limited in amount (article 22.2(b)).

It is a defence to the claim that it was brought in the wrong forum (article 28) or that it is out of time (article 29).

1.2.5 Delay

The carrier is liable for damage caused by delay (article 19) unless it proves that it had taken al...

Table of contents

• Cover Page
• Half Title page
• Series Page
• Title Page
• Copyright Page
• Preface
• Contents
• Table of Abbreviations
• Table of Bibliographical References
• Table of cases
• Table of Conventions and Protocols
• Table of Rules
• Table of United Kingdom Legislation
• Table of International Legislation
• Part One: Introduction to the Conventions on Carriage by Air
• Part Two: The Conventions and Commentary
• Appendix 1: Montreal Convention, 1999 (opened for signature on 28 May 1999)
• Appendix 2: Authentic French Text of The Warsaw Convention, 1929
• Appendix 3: Guadalajara Supplementary Convention, 19611
• Appendix 4: Warsaw Convention as amended at the Hague, 1955 and by the Protocol No 4 of Montreal, 1975
• Index