LIABILITIES IN THE AVIATION INDUSTRY

SIREESH P.

UAV- Flying instructor

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INTRODUCTION

An airline's liability for a passenger's injury or death is most often determined by state law.

But if the passenger's trip includes a stop in a foreign country, then the airline's liability is

controlled entirely by international treaties. The treaties are known as the Warsaw

Convention and the Montreal Convention.

The treaties also govern a passenger's claims for injuries occurring on a domestic flight, as

long as a foreign destination was on the passenger's itinerary. That means that state law

may govern the claims of one victim of an airline disaster, while a treaty may govern the

claims of his friend in the very next seat. Because different law applies, one victim (or his

family) might be entitled to compensation from the airline and the other not. Making us think

Which is more favourable for the victim -- state law or the treaties? It depends on the

circumstances of the case. But if a treaty applies, the passenger need not prove the airline

was negligent at all. If a treaty applies, the passenger need only prove that his injuries were

the result of an "accident."

This project deals with the study of some contemporary issues in the aviation law. It

highlights the continuing role of jurists and scholars in Aviation law for developing the new

amendments. It is developed to maintaining international cooperation, high reliability

standards, passengers’ safety and liability.

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Liabilities for international air travel are the integral part of international law these are derived

from the protocol to amend the convention. Every contracting state which is a member to

these conventions has to comply with its amendments and protocols along with there state

law. These protocols are intended for limited liability of an air carrier for personal injury or

death of a passenger and damage to goods.

Violation of Regulations. Sometimes, it turns out that the manufacturer, mechanic, or other

defendant violated a aviation regulation. In some states, one who violates a regulation is

automatically considered negligent, or "negligent per se." In other states, one who violates a

regulation isn't automatically negligent, but the violation is something the jury is allowed to

consider when deciding the question.

Details of these conventions and aviation law with some recent examples have been

discussed well to the point in the paper. Besides these conventions, international

conventions related to aviation, adhered by India have been brought forward.

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International Law

International law is the law of the international community. International

Law, principles, rules, and standards that govern the nations and other participants, in

matters relating to international affairs in their relations with one another. Most international

law consists of long-standing customs, provisions agreed to in treaties, and generally

accepted principles of law, recognized by nations. Some international law is also created by

the rulings of international courts and organizations.

The purposes of international law include resolution of problems of a regional or global scope

(such as environmental pollution or global warming), Regulation of areas outside the

control of any one nation (such as outer space or the high seas), and adoption of

common rules for multinational activities (such as air transport or postal service).

International law also aims to maintain peaceful international relations when possible and

resolve international tensions peacefully when they develop, to prevent needless suffering

during wars, and to improve the human condition during peacetime.

Enforcement of international law is often difficult because nations are sovereign

(independent) powers that may put their own interests ahead of those of the international

community. In addition, the mechanisms of enforcement are young and not well developed.

Enforcement may be effectively achieved, however, through the actions of individual nations,

agencies of international organizations such as the United Nations (UN), and international

courts. The United Nations Security Council can authorize economic sanctions, diplomatic

sanctions, or military force to maintain or restore international peace and security.

International law began as a system governing the relations among sovereign states, and

states have always been the primary legal entities affected by international law. As the global

system has become more complex, however, international law has come to recognize and

regulate international organizations, businesses, non-profit entities, and individuals. The

emergence of international human rights law and, more recently, international criminal law

reflects the fact that individuals today are direct subjects of international law in certain

respects.

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Modern international law began to develop with the rise of national states in Europe after the

15th century, when the basic ideas of national territory and jurisdiction were established. In

1625, building on the work of previous legal writers, the Dutch jurist Hugo Grotius published

his celebrated treatise De Jure Belli ac Pacis (On the Law of War and Peace). Grotius

argued that existing customs governing the relations between nations had the force of law

and were binding unless contrary to natural justice or the law of nature (natural law), an

immutable higher law governing all human conduct. Grotius’s influence on international

affairs and the settlement of wars was great, and he is sometimes called the father of

modern international law. His ideas became the cornerstone of the international system as

established by the Peace of Westphalia (1648), a treaty that ended the Thirty Years’ War.

Other scholars and statesmen further described and developed the basic rules of

international law, among them the Dutch jurist Cornelis van Bynkershoek and the Swiss

diplomat Emmerich de Vattel. Vattel’s book, Le droit des gens (1758; Law of Nations), greatly

influenced the framers of the Constitution of the United States with its ideas of natural law

governing the behaviour of states. Over time scholars gave increasing emphasis to the idea

of state sovereignty, so that by the end of the 19th century the theoretical foundation of

international law had shifted from natural law to a strictly consensual approach known as

positivism. Positivism claims that each nation is bound only by the international rules that it

freely accepts to limit its otherwise unlimited freedom of action. The clash between positivists

and adherents of natural law continues today. Conflict is most pronounced over the issue of

whether there are fundamental “higher norms” of international law, a principle called jus

cogens, that sovereign state are obliged to respect.

THE MODERN SYSTEM:

Modern international law stems from three main sources: Treaties, Customs, and The

Generally Accepted Principles of law derived from national legal systems throughout the

world. International organizations also play an important role in the formation of international

law.

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Treaties:

Treaties are written agreements between two or more sovereign states. International

organizations may also be given the capacity to make treaties, either with sovereign states or

other international organizations. Treaties may be known by many other names—for

example, agreement, convention, protocol, pact, and covenant—but the name chosen

generally does not affect the legal status of the agreement. As long as the parties intend the

text to be binding, it is a treaty. Treaties may incorporate rules of custom or develop new law.

The present system of international law remains largely consensual and centered on the

sovereign state. It is within the discretion of each state to participate in the negotiation of, or

to sign or ratify, any international treaty. Likewise, each member state of an international

organization such as the UN is free to ratify any convention adopted by that organization.

Treaty law thus is created by the express will of states.

Customary Law:

Customary international law is unwritten and derives from the actual practices of nations over

time. To be accepted as law, the custom must be long-standing, widespread, and practiced

in a uniform and consistent way among nations. One example of customary international law

is a nation’s right to use the high seas for fishing, navigation, over flight, and submarines.

Treaties represent another source of customary law. Although treaties generally bind only

those countries that ratify them, customs may be deduced from the rules and statements

contained in treaties. These new customs may be considered binding even on those states

that did not sign and ratify the original treaty. Whether or not they are embodied in a written

treaty, customs become part of international law because of continued acceptance by the

great majority of nations.

Some customary international law has been codified in recent years. For example, the

Vienna Convention on the Law of Treaties, which was approved in 1969 and took effect in

1980, codified the customary law that treaties between sovereign states are binding on their

signatories and must be followed in good faith.

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General Principles:

The phrase “general principles of law” appeared in the statute of the Permanent Court of

International Justice, established in 1921, three years after the end of World War I (1914-

1918). The court was directed to decide disputes brought before it on the basis of existing

treaty law and customary international law. Some of the diplomats and lawyers drafting the

statute of the court feared, however, that disputes might arise over new international issues

for which there would be no settled custom or applicable treaty. They decided, and the

nations voting for the statute agreed, to add a third source of law—“general principles of law

recognized by civilized nations”—to allow the court to draw upon widely recognized legal

principles in national law. In this way, the court would not have to refuse to settle a dispute

because of the absence of international law. General principles that have been applied by

the court and its successor, the United Nations International Court of Justice, include the

“clean hands” doctrine (it is improper to accuse someone of misconduct that the accuser has

also engaged in), the principle that individuals should not be a judge in their own dispute, and

the principle of res judicata (a case that is decided cannot be tried again).

International Courts and Organizations:

Judicial decisions rendered by international courts are important elements in identifying and

confirming international legal rules. The most important international courts are the UN

International Court of Justice, which mainly handles legal disputes between nations, and the

International Criminal Court, which prosecutes individuals for genocide, war crimes, and

other serious crimes of international concern. Resolutions and decisions of the UN and other

international organizations now also have a great impact on the views and practices of

sovereign states, sometimes leading to rapid formation of customary international law. States

have given a very few international organizations, such as the European Union and the UN

Security Council, the power to enact directly binding measures.

The first international organizations emerged in the 19th century. Technological advances

such as the telegraph and the telephone, together with a rise in international trade, created a

need for permanent international institutions to regulate problems that exceeded national

boundaries. The earliest organizations of this type were specialized bodies such as the

International Telegraphic Union (1865) and the Universal Postal Union (1874).

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After World War I European countries created the League of Nations, an organization with a

general mandate to maintain peace and prevent war. The League’s covenant was part of the

Treaty of Versailles signed in 1919 to officially end the war. Pursuant to provisions in the

covenant, the Permanent Court of International Justice was established in 1921 as the

world’s first international court. Its role was to decide international disputes that were

voluntarily submitted to the court by the nations involved, and to issue advisory opinions on

disputes referred to it by the League. Although the court helped to develop international law,

its judges were hampered by the lack of universal agreement on many aspects of

international law.

The onset of World War II in 1939 proved the League of Nations ineffective in preventing

hostilities. Equally unsuccessful was the Pact of Paris, also called the Kellogg-Briand Pact, a

multilateral treaty renouncing the use of war that had been signed in 1928 and ultimately

ratified by more than 60 nations, including Germany and Japan. After World War II ended in

1945 the United Nations replaced the League of Nations, and the International Court of

Justice succeeded the Permanent Court of International Justice.

The United Nations Charter created elaborate machinery for maintaining peace and security

and for solving disputes among nations. It also specifically directed the General Assembly to

encourage the progressive development and codification of international law. To carry out

this task, the General Assembly created two subsidiary organs: The International Law

Commission (1947) and The Commission on International Trade Law (1966) .

Over the years the International Law Commission has prepared drafts of treaties codifying

and modernizing a number of important topics of international law, including the law of the

sea, diplomatic relations, consular relations, law of treaties between nations, succession of

states in respect to treaties, law of treaties between nations and international organizations,

immunity of states from the jurisdiction of other states, and the law of international

freshwaters.

The Commission on International Trade Law drafts texts on laws concerning international

commerce and economic development. Upon acceptance by the General Assembly, drafts

from the commissions usually are submitted to international conferences called by the UN for

adoption of the respective conventions.

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In some instances, the UN has organized conferences to discuss major international issues

or to negotiate treaties without prior proposal by the International Law Commission. The most

important example was the third UN Conference on the Law of the Sea, which terminated its

work in 1982. The conference adopted a convention (which came into force in 1994)

governing all aspects of the peaceful use of the oceans, including territorial boundaries,

navigational rights, and economic jurisdiction (see Freedom of the Seas). Another example is

the 1992 UN Conference on Environment and Development, held in Rio de Janeiro, Brazil,

and informally known as the Earth Summit. The conference produced two major treaties: the

Convention on Biological Diversity, which seeks to preserve the world’s biological diversity

and promote the sustainable use of its components; and the Framework Convention on

Climate Change, which seeks to limit industrial emissions of gases leading to global

warming. Sometimes the UN convenes major conferences to assess progress and problems

concerning a specific topic, without adopting a new agreement. Such conferences have been

held on human rights and on the status of women worldwide.

A landmark in the development of international law occurred in 1998 at a UN diplomatic

conference in Rome, Italy, when 120 countries adopted a treaty to establish the world’s first

permanent international criminal court. Officially established in 2002, the International

Criminal Court (ICC) operates independently of the United Nations and has the power to

initiate investigations and prosecutions of war criminals, including those accused of

genocide, crimes against humanity, and other serious crimes. Unlike previous war crimes

tribunals, such as those created in response to atrocities in the former Yugoslavia and in

Rwanda, the ICC’s jurisdiction is not limited to specific conflicts.

INTERNATIONAL LAW AND NATIONAL LAW:

Every nation is expected to obey international law. Some nations make international law

automatically part of the law of their land. The scope of international law is vast. Nearly every

matter of legal regulation within a nation has some international counterpart. Over the last

century, advances in communications technology, growth in global trade and travel , and

the advent of weapons of mass destruction have led to an enormous expansion in the range

of topics regulated by international law. In addition to the classic matters of diplomacy, war

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and peace, trade, and territorial boundaries, international law now covers matters as diverse

as environmental protection, human rights, nuclear testing, war crimes, outer space, child

custody, recognition of wills and testaments, exchange of prisoners, and protection of

archaeological sites and art treasures. This section discusses several major areas of

international law, including peace and security, human rights, the environment, and the

global commons.

Some nations make international law automatically part of the law of their land.

In cases involving international law, U.S. state and federal courts presume that U.S. law

conforms to international law; such an attitude has been urged consistently by the Supreme

Court of the United States. In some countries, such as the United Kingdom, and India

treaties do not become effective in national law until they are enacted by Parliament. In other

countries, a treaty or customary international law is given constitutional status superior to

national legislation. How a sovereign state adopts and applies international law is generally

left to its discretion, so long as it conforms to the law in the end.

Whatever the constitution or legal system of a nation, it cannot use its domestic law as an

excuse to breach an international agreement or violate an international rule. This was made

clear during the war crimes trials held in Nürnberg, Germany, following World War II. The

Nürnberg tribunals rejected the defense that certain acts, such as the killing of prisoners of

war, were permitted under the domestic laws of Nazi Germany. The tribunals held that such

laws were null and void because they contravened the generally valid rules of warfare. It also

held that the individuals responsible for issuing and executing such laws were criminally

responsible for grave breaches of international law. Today, international human rights courts

often declare national laws incompatible with international rules and may award

compensation to those whose rights have been violated.

MATTERS OF INTERNATIONAL CONCERN:

The scope of international law is vast. Nearly every matter of legal regulation within a nation

has some international counterpart. Over the last century, advances in communications

technology, growth in global trade and travel, and the advent of weapons of mass destruction

have led to an enormous expansion in the range of topics regulated by international law. In

addition to the classic matters of diplomacy, war and peace, trade, and territorial boundaries,

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international law now covers matters as diverse as environmental protection, human rights,

nuclear testing, war crimes, outer space, child custody, recognition of wills and testaments,

exchange of prisoners, and protection of archaeological sites and art treasures. This section

discusses several major areas of international law, including peace and security, human

rights, the environment, and the global commons.

The Global Commons:

Large areas of the globe and beyond do not and legally cannot belong to any nation: most of

the oceans and their resources, Antarctica, Earth’s atmosphere, outer space, and the

Moon and other natural objects in space. These areas are known collectively as the

global commons. The absence of political sovereignty for these areas means that

international regulation is required to avoid conflict over them and to protect them from

overuse, pollution, and other harm. International agreements for these areas are generally

accepted as providing the legal framework for all those who conduct activities in them some

of them are Aviation Law ; Maritime Law; Freedom of the Seas.

International Law in Aviation

The importance of modern aviation was recognized during World War II, when a conference

was convened in Chicago in 1944 to discuss regulation of post-war international civil

aviation. The resulting Chicago Convention of 1944 codified public international aviation law.

A similar arrangement in traffic rights (to pick up and set down passengers, cargo, and mail)

was not adopted, and bilateral negotiations had to be carried out to effect such

arrangements. The American principle of “freedom of the air” and the British principle of

“order in the air” were reconciled in 1946 in Bermuda at a meeting between the United

States and Britain. Subsequent bilateral agreements are based on the so-called Bermuda

Principles covering the regulation of routes, capacity, and tariff.

Another outcome of the Chicago conference was the International Civil Aviation Organization

(ICAO), which was formally established in 1947 as an agency of the United Nations (UN) to

foster development and promote cooperation in international civil aviation. The organization

has a legal committee that is responsible for producing treaties, conventions, and protocols

in those areas of aviation in which uniformity is desirable.

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A basic agreement in international aviation law is the Warsaw Convention of 1929. This

convention provided for presumptive but limited liability of an air carrier for personal injury or

death of a passenger and damage to goods in international air carriage. The Hague Protocol

was adopted in 1965 Constituting a series of amendments to the Warsaw Convention. This

so-called Montréal Agreement was then incorporated in airline tariffs, which were accepted

by the national Civil Aeronautics Board (CAB). A new treaty, the Guatemala Protocol to the

Warsaw Convention, was enacted. The protocol provided for absolute liability The

Guatemala Protocol was later amended to provide that the limit would be 100,000 Special

Drawing Rights (units of international monetary exchange administered by the International

Monetary Fund).

The ICAO's legal committee, in 1963, produced the Tokyo Convention, dealing with offences

committed on aircraft. The many aircraft hijackings since 1968 brought pressure to ratify the

treaty, and in May 1969 the U.S. Senate consented to the convention's ratification. More

stringent security measures for international flights were called for in an amendment to the

Chicago Convention adopted by the ICAO council in 1985.

Air Space and Outer Space in India

All countries have aviation legislation designed to conform to the international rules. In India

various laws and acts have been framed by union government to regulate the aviation sector.

Following are the five laws and acts which govern the aviation security in India.

• The air craft act, 1934

• Aircraft rules 1937

• Anti hijacking act 1982

• Anti- hijacking (amendment) act, 1994

• Air safety regulations

The air safety in India is regulated by suppression of unlawful acts against the safety of civil

aviation act 1982 and the suppression of unlawful acts against the safety of civil aviation

(amendment) act, 1994. These acts were made by the government to comply with the

Montréal convention, 1971 (convention for the suppression of unlawful acts against the

society of civil aviation, 1971).

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Beside these regulations and acts, India has also signed various international conventions

related to aviations related to aviation and hence India has to abide by the terms and

conditions of them.

1. Protocol to amend the convention for the unification of certain rules

relating to international carriage by air (the Warsaw convention, 1929)

2. The international air services transit agreement, 1944

3. Protocol on the authentic trilingual text of the convention on international

civil aviation, 1944

4. Protocol on the authentic Quadra lingual text of the convention on

international civil aviation, 1944

5. The Rome convention, 1948

6. The Rome convention, 1952

7. The Hague protocol, 1995

8. The Guadalajara convention, 1961

9. The Tokyo convention, 1963

10. The Montréal inter-carrier agreement , 1966

11. The Hague convention, 1970

12. The Montréal convention, 1971

13. The Guatemala city protocol, 1971

14. The additional protocol no 1, 2, 3 and 4 (1975) or Montréal protocol

No.1,2,and 3(1975)

15. The Montréal protocol ,1988

16. The Montréal convention,1991

17. The Montréal convention, 1999

18. The cape town convention, 2001

Aviation Liabilities and the Amendments

The Unification of Certain Rules Relating to International Carriage by Air (Warsaw

Convention) which established between member States a uniform liability framework for air

carriers at a time when aviation was a new and burgeoning industry.

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The Warsaw Convention was subsequently amended seven times, unfortunately without the

uniformity in ratification by States enjoyed by the original Warsaw Convention. The

amendments gave rise to what is known as the Warsaw System, whereby the rules for

liability in respect of international carriage depend upon the iteration of the Warsaw

Convention adopted by States of destination and departure for the carriage concerned.

A basic agreement in international aviation law is the Warsaw Convention of 1929 which was

signed on October 12, 1929. This convention provided for presumptive but limited liability of

an air carrier for personal injury or death of a passenger and damage to goods in

international air carriage. Liability for death or personal injury to a passenger was limited to

$8,300. The Hague Protocol was adopted in 1965. Constituting a series of amendments to

the Warsaw Convention, the protocol doubles the liability limit. The United States was not a

party to the conference at Warsaw that produced the Warsaw Convention, but adhered to it

in 1934. By 1969 it had not ratified or adhered to The Hague Protocol. In 1965, indeed, the

United States gave notice of its intention to denounce the Warsaw Convention because of its

low limit of liability. The Americans withdrew this notice, however, when air carriers, under

the auspices of the International Air Transport Association (IATA), a trade association,

agreed to raise this limit to $75,000 with respect to passengers travelling to or from or

passing through the United States. This so-called Montréal Agreement was then

incorporated in airline tariffs, which were accepted by the national Civil Aeronautics Board

(CAB). A new treaty, the Guatemala Protocol to the Warsaw Convention, was enacted. It

was signed by the United States in 1970. The protocol provided for absolute liability on the

part of the airline as well as for an unbreakable limitation of damages to $100,000. The

Guatemala Protocol was later amended to provide that the limit would be 100,000 Special

Drawing Rights (units of international monetary exchange administered by the International

Monetary Fund). This new treaty, entitled the Montréal Protocols 3 and 4, was denied

ratification by the U.S. Senate in 1983.

The protocol, in case of international transportation, specifies that an air carrier’s liability for a

‘negligent act’ causing personal injury to one of its passengers is limited to approximately US

$ 8,300 for each passenger. If the air carrier is guilty of ‘wilful misconduct’ or if a special

contract has been entered into, such a limitation will not apply.

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Protocol to Amend the Convention for the Unification of Certain Rules Relating to

International Carriage by Air (The Warsaw Convention, 1929)

The Warsaw convention requires the injured party to bring a lawsuit within two years of the

accident or the action will be dismissed. Also, the air carrier will not be liable if the carrier can

prove that due care was taken. This act applies to injuries sustained on the plane or while

embarking or disembarking from an international flight.

The Warsaw convention defines an accident as unexpected or unusual event that is external

to the passenger. The definition of wilful misconduct depends in some measure which courts

can decide upon. However, some common factors that court will consider are

1. knowledge that an action will probably result in injury or damage

2. reckless disregard of the consequences of an action or

3. Deliberately failing to discharge a duty related safety.

Under Warsaw convention, lawsuits can be filed in one of four possible places

1. The country where the passenger purchased the ticket

2. The country of the passenger final destination

3. The country where the airline is incorporated or

4. The country where the airline maintains its principle place of business.

The Rome convention of 1952

The convention on damage caused by the foreign aircraft to third parties on the surface

includes the principle of absolute liability of the aircraft operator for damage caused to third

parties on the surface but places a limitation on the amount of compensation

Expressed in poincare gold francs and calculated in relation to the aircraft concerned.

However, a diplomatic conference convened in 1978, under ICAO auspices adopted a

protocol for the amendment of Rome convention. The basic feature of the protocol is a

substantial increase in the limits of liability and expression of the limits in the Special Drawing

Rights of the IMF (International Monetary Fund)

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The Hague protocol, 1955

The interest of treating independently from the 1929 Warsaw convention, the 1955 protocol

to amend the convention for the unification of certain rules relating to international carriage

by air, done at the Hague lies in the fact that only about two third of the original member

states adhere to the protocol.

The main difference brought to the 1955convention relating to carriage by air of goods and

passenger is the increase of the carriers revised liability from US $ 8,300 to 16,600.

The amended convention applies whenever a carriage occurs within the territories of two

states which adhere to Hague protocol.

Another application is when both departure and destination points are with in the territory of a

single state, which is a party to the amended convention, if the contract designates any

stopping place outside the territory of the state.

When one state is a member of the amended convention while the other is only a member of

original Warsaw convention, the latter applies.

The Hague protocol excludes the carrier’s defences of neglect pilot-age and negligence in

the handling of the aircraft. Further more, the burden of proof needed to exclude the limited

liability of the carrier is modified from “wilful misconduct” to “intention of case damage or to

cause damage recklessly and with knowledge that damage would probably result.

Some more technical changes set out in the protocol include the contents of the air waybill,

which now requires fewer particular and the 14day written notice by the consignee of the loss

or of damage to the goods.

The Hague Protocol amends the 1929 Warsaw Convention that the Montreal Convention is

designed to replace. Until the Montreal Convention gains wide adherence, the Warsaw

system will remain in place between many countries. Accordingly, the Committee

recommends that the Senate advise and consent to the Hague Protocol so that U.S.

passengers, shippers, and air carriers, in this interim period, may take advantage of some

modern elements of the protocol, especially those relating to the carriage of cargo. At

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present, there is uncertainty about whether the United States is a party to the Hague

Protocol. This uncertainty arises, in part, from the confusion that results from the patchwork

nature of the Warsaw system. The 1929 Warsaw Convention has been amended by a series

of protocols. Some countries are parties only to the Warsaw Convention; others are parties

only to particular protocols amending the Convention. Recent litigation in federal court has

highlighted this confusion. In 2000, the U.S. Court of Appeals for the Second Circuit held in

Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301 (2d Cir. 2000), cert. denied, 533 U.S. 928

(2001), that the United States and South Korea did not have treaty relations with respect to

international air carriage rules because the two countries were not parties to common pieces

of this regime.

Ratification of the Hague Protocol will serve to clarify treaty relationships immediately with a

number of countries with which the status of our treaty relationships under the Warsaw

system may be unclear in light of the Chubb case. This includes countries with which we may

have no treaty relationships at present. It also includes countries with which our only current

treaty relationship may be the relatively antiquated 1929 Warsaw Convention, unamended by

any of the subsequent protocols. With respect to this latter group of countries, ratification of

the Hague Protocol is useful because the Protocol streamlines the Warsaw Convention ' s

cumbersome documentation requirements for cargo transportation. In the short- term, having

cargo shipments to and from such countries governed by the Hague Protocol rather than by

the unamended Warsaw Convention will benefit shippers.

The relevance of the Hague Protocol will wane as more countries become parties to the

Montreal Convention, which provides updated rules governing air carriage. Where two

countries are parties both to the Montreal Convention and to prior conventions governing

international air carriage, the Montreal Convention, by its terms, supersedes the earlier

instruments. The Committee hopes that United States ratification of the Montreal Convention

will serve to encourage other countries also to become parties to it. The Committee

encourages the Administration to undertake active diplomatic efforts to promote further

ratifications.

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The Guadalajara convention 1961

A diplomatic conference was held in Guadalajara, Mexico in September 18, 1961, for the

sole purpose of supplementing the Warsaw convention to address indirect carriage of cargo.

It extends the Warsaw convention beyond the carrier identified in the contract of carriage.

In operations involving indirect carriage of cargo, consignor purchases transportation from

one carrier, such as freight forwarder or consolidator but the transportation is provided by

another carrier in accordance with an agreement between the carriers.

The convention rendered to the actual carrier, with respect to the carriage he performs, the

same right and obligation as the carrier under the Warsaw convention or the Warsaw

convention as amended by the Hague protocol.

The Montréal inter carrier agreement 1966

The Montréal inter carrier agreement ensured that accident victims on flight to or from the

signatory states are compensated for up to US $ 75,000 of proven damages, whether or not

the negligence of the carrier was the cause of the accident.

The Guatemala City protocol 1971

The Guatemala City protocol, 1971 was the result of further efforts to advance the cause of

passenger rights that were reflected in the Hague protocol. The Guatemala City protocol held

carriers strictly liable for upto US $ 100,000 of proven damage in the event of passenger

death or injury, but that amount constituted an unbreakable limit on liability per passenger,

even if the carrier engaged in wilful misconduct. However this protocol expressly recognised

the right of states to supplement passenger recoveries through state legislated insurance

plans.

The additional protocol no 1, 2, 3, and 4 (1975) or Montréal protocol no. 1, 2 and 3

(1975).

The diplomatic conference on Air Law was held in 1975 in Montréal, during which more

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

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1975 additional protocol No 1 and 2 are related solely to the conversion from a gold standard

to the Special Drawing Right (SDR) standard for purpose of calculating all quantitative

limitations on liability under the Warsaw convention and under the Warsaw convention as

amended by The Hague protocol. The SDR is an artificial basket currency developed by the

international monetary fund for internal accounting purpose.

The key provisions of the Guatemala City protocol were incorporated into additional protocol

No 3. in translating the Guatemala city protocol provisions into the additional protocol NO 3,

the only change in content was the replacement of the gold standard with currency

conversion formula based on SDR.

In the addition protocol; no 4 the outmoded cargo documentation provisions of the Warsaw

convention were eliminated, there by facilitating the application of electronic commerce to

international air cargo. For example, the additional protocol no 4 eliminated the need for

consignor of cargo to complete detailed air waybills prior to consigning goods to a carrier. In

place of such detailed airway bills, consignor could use simplified electronic records of

facilitate shipments.

Article 22 of the Convention shall be deleted and replaced by the following:-

"Article 22

1. In the carriage of passengers the liability of the carrier for each passenger is limited to

the sum of 8300 Special Drawing Rights. Where, in accordance with the law of the

court seized of the case, damages may be awarded in the form of periodic payments,

the equivalent capital value of the said payments shall not exceed this limit.

Nevertheless, by special contract, the carrier and the passenger may agree to a

higher limit of liability.

2. In the carriage of registered baggage and of cargo, the liability of the carrier is limited

to a sum of 17 Special Drawing Rights per kilogram, unless the consignor has made,

at the time when the package was handed over to the carrier, a special declaration of

interest in delivery at destination and has paid a supplementary sum if the case so

requires. In that case the carrier will be liable to pay a sum not exceeding the declared

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sum, unless he proves that that sum is greater than the consignor's actual interest in

delivery at destination.

3. As regards objects of which the passenger takes charge himself the liability of the

carrier is limited to 332 Special Drawing Rights per passenger.

4. The sums mentioned in terms of the Special Drawing Right in this Article shall be

deemed to refer to the Special Drawing Right as defined by the International Monetary

Fund. Conversion of the sums into national currencies shall, in case of judicial

proceedings, be made according to the value of such currencies in terms of the

Special Drawing Right at the date of the judgment. The value of a national currency, in

terms of the Special Drawing Right, of a High Contracting Party which is a Member of

the International Monetary Fund, shall be calculated in accordance with the method of

valuation applied by the International Monetary Fund, in effect at the date of the

judgment, for its operations and transactions. The value of a national currency, in

terms of the Special Drawing Right, of a High Contracting Party which is not a

Member of the International Monetary Fund, shall be calculated in a manner

determined by that High Contracting Party.

Nevertheless, those States which are not Members of the International Monetary Fund

and whose law does not permit the application of the provisions of paragraphs 1, 2

and 3 of Article 22 may, at the time of ratification or accession or at any time

thereafter, declare that the limit of liability of the carrier in judicial proceedings in their

territories is fixed at a sum of 125 000 monetary units per passenger with respect to

paragraph 1 of Article 22; 250 monetary units per kilogram with respect to paragraph 2

of Article 22; and 5 000 monetary units per passenger with respect to paragraph 3 of

Article 22. This monetary unit corresponds to sixty-five and a half milligram’s of gold of

millesimal fineness nine hundred. These sums may be converted into the national

currency concerned in round figures. The conversion of these sums into national

currency shall be made according to the law of the State concerned."

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The Montréal protocol 1988

The protocol was signed at Montréal was signed at Montréal on February 24, 1988 came into

force as of august 6, 1989, this protocol adds to the definition of ‘offence’ given in the

Montréal convention of 1971, including actions that are likely to endanger airport safety. It

establishes universal jurisdiction over the offender and applies the Montréal convention’s

rules of custody, extradition, and prosecution.

The Montréal convention 1999

The Montréal convention 1999 eventually replaced the Warsaw convention 1929 and a

number of subsequent conventions and protocols which together from the ‘Warsaw system ‘.

This system provides an international treaty frame work for liability rules governing

commercial international aviation travel, and for documentation such as tickets and airway

bills. Compensation arrangements are provided for passengers, baggage and cargo affected

by aircraft accidents. The convention substantially improves consumer protection in

international carriage by air and modernises the smooth flow of passengers, baggage and

cargo. Most importantly, it improves the international regime for air carriers, liability by

providing a form of unlimited and more equitable passenger compensation governing injury

or death: some of the silent features of the convention include:

• The convention incorporates many of the provisions of MP4 relating to cargo,

• Incorporation most of the liability provisions of the IATA intercarrier agreements

the convention establishes a two-tire liability system, with strict liability upto

100,000 SDRs and presumptive liability in an unlimited amount.

• Unless special value is declared, loss and damage and delay of baggage results

in maximum liability of 1000 SDRs; destruction, loss, damage or delay of cargo

results in liability capped at 17 SDRs per kilogram.

• Carrier must maintain adequate insurance to cover their liability

• The conventions liability limits shall be reviewed every five years

• The claimant may recover court costs and attorney fee, if the amount of damage

award exceeds any written settlement offer made within six months of the

accident, but before suit is commenced.

• The convention establishes a ‘fifth jurisdiction’ for personal injury or death (oddly,

not cargo and baggage) actions.

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• There is no carrier penalty for non compliance with the new documentation

requirements.

• Arbitration clauses may be included in cargo air way bills.

• Punitive, exemplary or other non-compensatory damage ‘ are not recoverable;

and

• There is no provision for recovery of emotional damages

Example: How does the conventions applicable to the recent accidents

Some Flight 1549 passengers have reportedly

"lawyered-up." What legal claims do they have?

Putting aside the question of whether pursuing the

claims is the right thing to do -- some say they should

simply count their blessings -- do the passengers have

any claims to begin with?

Well, it depends on the law that applies. For example,

under California law, a passenger would first have to show that the accident was caused by

the airline's negligence. From what is known so far, that seems unlikely. If, however, the

passenger succeeds in proving negligence, he would be entitled to compensation for any

physical injuries he sustained as well as compensation for the emotional distress he

suffered. What if the passenger suffered just emotional distress and no physical injuries?

Again using state law as an example, if the airline was negligent, the passenger

could recover for the emotional distress, as long as that the emotional distress was

"serious." (Not much question about that.)

What if the passenger had a foreign destination listed someplace on his itinerary? That

would change everything. Even though the flight was domestic, the Montreal Convention, an

international treaty governing airline liability, would trump state law. The passenger would

not need to prove the airline was negligent to recover. It is enough that a passenger's

injuries were the result of an "accident." The airline would be automatically liable. But under

the Convention, the passenger would not be entitled to compensation for mental injuries,

regardless of how "serious", unless he also suffered at least some physical injury.

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Overview of the Warsaw Convention and the Montreal Protocol 4

The Warsaw Convention was drafted when the airline industry was in its infancy. It was the

product of two international conferences, the first held in Paris in 1925 and the second in

Warsaw in 1929 and four years of work by the “interim Commite International Technique

d'Experts Juridique Aeriens” (CITEJA) formed at the Paris Conference. The Convention had

two primary goals:

To establish uniformity in the aviation industry with regard to ``the procedure for dealing with

claims arising out of international transportation and the substantive law applicable to such

claims,'' as well as with regard to documentation such as tickets and waybills;

The clearly the overriding purpose was to limit air carriers’ potential liability in the event of

accidents. The liability limit was believed necessary to allow airlines to raise the capital

needed to expand operations and to provide a definite basis upon which their insurance rates

could be calculated.

The nations drafting this provision had a direct interest in establishing liability limits, since

nearly all existing airlines were either owned or heavily subsidized by the various contracting

states. The drafters also believed that a liability limit would lessen litigation.

According to the once state Constitution, it is the duty of the court to enforce treaties of the

States whatever they might be, and the Warsaw Convention remains the supreme law of the

land. The current Warsaw Convention requires that an air waybill must be made out by the

consignor and must be signed and handed over, in triplicate, with the freight. Art. 6 (1).

Failure to comply with Art. 6 and or particulars of Art. 8 will result in a loss of liability limits

(US$9.07 per lb.)

The Warsaw Convention NOTE: Montreal Protocol 4 Changes

the Warsaw Convention since 1929. Generally, the Convention applies to air carriage

between the territories of two High Contracting Parties to the Convention. For example, air

carriage between the Untied States and England. The Warsaw Convention governs the

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relationships between the shipper/beneficial cargo owner and the airline or indirect air carrier.

Warsaw governs shipments from airport to airport, not beyond the airport area. Warsaw

requires that an air waybill must be made out by the consignor and must be "signed" and

"handed over," in triplicate, with the freight. Art. 6 (1). Failure to comply with Art. 6 and/or

particulars of Art. 8 will result in a loss of liability limits ($9.07 per lb.) for the airline or ICA.

The pre-MONTREAL PROTOCOL 4. Case Law suggests that a hyper-technical approach

must be taken with respect to Warsaw. Warsaw is a treaty and traditional methods of judicial

interpretation can only be used when the text of the treaty is unclear.

[ref: Indus. v. Pan Am. World Airways, 754 F.2d 106, 108 (2d Cir. 1985); Chan v. Korean Air

Lines, Ltd., 490 U.S. 122, 134 (1989); Tai Ping Vs. Northwest Air, (1997)].

Key Case Issues Under The Former Law Were:

_ was an air waybill issued for the subject cargo?

_ Does the air waybill receipt a declared value or insurance value?

_ Does the air waybill include all of the required particulars?

_ Are the Warsaw limits on liability enforceable?

Montreal Protocol 4 Changes

The United States has been a party to the Warsaw Convention since 1929. Generally, the

Convention applies Warsaw (NOTE: Montreal Protocol 4 Changes) Major Changes to

Warsaw Convention as Amended by the Hague and Montreal Protocol 4. (MONTREAL

PROTOCOL 4) (Effective March, 1999). On September 28, 1998, the U.S. Senate finally

ratified MONTREAL PROTOCOL 4 to the Warsaw Conventional. This amendment to the

original 1929 Warsaw Convention has been pending since 1975. Some aspects of

MONTREAL PROTOCOL 4 are certain, like the need for forwarders & indirect air carriers to

start looking up the current value of Special Drawing Rights (SDR) to determine their limits

on liability for cargo loss, delay or damage. Other issues are not so clear. While lawyers &

courts will attempt to "interpret" MONTREAL PROTOCOL 4, their ability to do so will be

limited by the strict construction and plain language approach utilized by Supreme Court

Justice Scalia in writing his decision for the case of Chan vs. Korean Air Lines, Ltd. There are

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exceptions to this approach, such as ambiguity, but at what point does traditional judicial

interpretation end? According to the U.S. Court of Appeal for the 2nd Circuit in "Tai Ping", (a

recent Warsaw Convention case), traditional judicial interpretation ends when "the language

is reasonably susceptible of only one interpretation."

Article 5 replaces language requiring that the consignor "make out" and "hand over" an air

waybill with the requirement that an "air waybill shall be delivered" or that "any other means

which would preserve a record of the carriage to be performed may, with the consent of the

consignor, be substituted for the delivery of an air waybill." It is this change that clears the

way for the use of electronic air waybills. Before MONTREAL PROTOCOL 4 it was clearly

established that air carriers were required to issue a "paper" air waybill.

In Detail:

The Montreal Protocol No. 4, which became effective in the United States on March 4, 1999,

amends the Warsaw Convention. Although the Protocol impacts personal injury and baggage

claims, the summary set forth below specifically addresses those substantive changes which

relate to claims for loss or damage to cargo.

1.) Limitation of Liability

The Protocol changes the maximum liability limitation from $20 kilogram to 17 Special

Drawing Rights (SDR's) per kilogram. See Article 22. An SDR is a fluctuating unit of currency

defined by the International Monetary Fund. As of September 13, 1999, one SDR equaled

$1.37070 U.S. Dollars, thus, providing for a maximum liability limitation of $23.30 per

kilogram. The U.S. conversion rate for an SDR can be found on the IMF's web page located

at this hot link: SDR RATE TODAY

The Protocol expressly incorporates the 1955 Hague amendments to Warsaw. See Article I.

Under those amendments, the carrier's maximum liability is based on the weight of the entire

shipment if the damaged cargo affects the value of the other cargo covered by the same air

waybill. See Art. 22(c) and Art. 22(b) of Hague Protocol to Warsaw. In other words, if the

damaged piece is an integral part of the entire shipment, then the carrier cannot limit its

liability to the weight of the damaged piece.

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2.) Willful Misconduct

Under the Protocol, proof of wilful misconduct does not deprive the carrier of the benefit of

the liability limitation. Prior to this amendment, wilful misconduct provided cargo interests with

the ability to avoid the limitation.

3.) Failure to Issue Waybill or List Particulars on Waybill

Similarly, failure to issue a waybill or list certain particulars on the waybill (place of departure,

destination, etc.) does not prevent the carrier from benefiting from the Convention's liability

limitation. See Article 9.

4.) Carriers Can Trade Electronically

The Protocol expressly provides that carriers can go paperless and trade electronically.

Article 5 provides that "[a]ny other means which would preserve a record of the carriage to

be performed, may, with the consent of the consignor, be substituted for the delivery of an air

waybill." According to the ATA and IATA, this provision will save carriers approximately

US$5-$6 per shipment.

5.) Traditional Carrier Defenses & Contributory Negligence

The Protocol adopts the traditional defenses to carrier liability. The carrier will not be liable

for damages caused by 1) inherent defect or vice of cargo; 2) defective packaging of the

cargo; 3) act of war and 4) an act of a public authority with regard to the entry or exit of the

cargo; i.e. customs. See Article 18.

Under the Convention, contributory negligence may exonerate the carrier wholly or partly

from liability only if the jurisdiction recognizes this defense. The Protocol changes this

provision to provide the Carrier with the defense of contributory negligence regardless of

whether it is recognized in the jurisdiction in which the action is brought.

Other Articles of Importance Modified by MONTREAL PROTOCOL 4

Articles 6 & 7 of MONTREAL PROTOCOL 4 retains the language requiring that the air

waybill be "handed over” and "signed." These formalities will continue to complicate "paper"

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shipments and may further complicate the formalities required to "preserve a record of the

carriage" in accordance with New Article 5.

Articles 8 & 9 of MONTREAL PROTOCOL 4 replaces language requiring that "the air waybill

shall contain the following particulars”. or the carrier loses the ability to limit his/her liability.

Prior to MONTREAL PROTOCOL 4, Article 8 & 9 required that stopping places for the flight

be stated. Under MONTREAL PROTOCOL 4, the air waybill needs only to have "an

indication of the places of departure and destination and an indication of the weight of the

consignment" and if the departure and destination are within the territory of a single

contracting party but stopping in another country, then and only then does the stopping place

within the territory of another state need to be included. Under MONTREAL PROTOCOL 4,

noncompliance with the provisions of Articles 5 to 8 does not appear to result in a loss of

liability limits. (Compare with Art. 3)

Article 10 is expanded, giving greater protection to the carrier by making the consignor

responsible for the correctness of the particulars relating to the cargo and make the

consignor responsible for any loss or damage which an irregularity, incorrectness or

incompleteness of those particulars causes to the air carrier or to any third party to whom the

carrier is liable. (Dangerous Goods).

Article 11 contains a significant change by making statements in the air waybill relating to

quantity, volume and condition of the cargo void as prima facie evidence against the carrier

except in so far as they have been and are stated in the air waybill to have been checked by

[the carrier] in the presence of the consignor or relate to the apparent condition of the cargo.

This will mean that air carriers that receive unit load devices said to contain certain goods

which show up short at destination without any obvious record of tampering will not

automatically be the responsibility of the air carrier and a shipper may be put to his difficult

proof to show the cargo's quantity and condition at origin. An air carrier will still be

responsible for the stated weight and apparent condition of the cargo. Note however that

cargo inside unit load devices or inside crates will not be apparent to the air carrier at time of

receipt.

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Article 18 of MONTREAL PROTOCOL 4 expressly adopts the traditional exceptions to carrier

liability:

_ Inherent defect, quality or vice of that cargo

_ Defective packing of that cargo

_ An act of war or an armed conflict

_ An act of public authority

MONTREAL PROTOCOL 4 also expands and clarifies the damage presumption stating that

if "for the purpose of loading, delivery or transhipment, any damage is presumed, subject to

proof to the contrary, to have been the result of an event which took place during the carriage

by air."

Article 22 of MONTREAL PROTOCOL 4 Changes the old damage limit of US$20.00 per kilo

or US$9.07 per lb. to 17 Special Drawing Rights (SDR) a unit of currency determined by the

International Monetary Fund. The new cargo liability limit will fluctuate with currency

valuations and is about US$23.15 per kilo or US$10.50 per lb. (Refer to www.cargolaw.com

for the current SDR exchange rate).

Article 25 of MONTREAL PROTOCOL 4 deletes the vagaries of a "willful misconduct," but

allows a shipper to recover beyond the limits of liability if the claimant can prove that "the

damage resulted from an act or omission of the carrier, his servants or agents, done with

intent to cause damage or recklessly and with knowledge that damage would probably result;

provided that the servant or agent was acting within the scope of his employment", but as to

passengers & baggage only.

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Summary

At present 86 countries have ratified the Montreal Convention.

The Montreal Convention aims to modernise and consolidate the Warsaw System, to ensure

the protection of the interests of consumers with respect to compensation and promote the

development of international air transport operations and the smooth flow of passengers,

baggage and cargo.

To this end it:

• Implements a two-tier liability system in respect of passenger injury and death.

• Updates liability caps for loss arising from lost or damaged baggage and cargo.

• Makes provision for electronic ticketing and cargo documentation.

• Extends the jurisdictional grounds on which claims for personal injury and death may be

brought.

• Makes provision for liability limits to be reviewed at five year intervals.

The General Aviation Revitalization Act, known as “GARA,” immunizes general aviation

manufacturers from lawsuits for defectively designed or manufactured aircraft that are more

than 18 years old. Regardless of how serious the defect, if the aircraft is more than 18 years

old, an injured victim cannot sue its manufacturer.

Amendments, protocols and conventions are prepared to establish uniformity in the aviation

industry with regard to ``the procedure for dealing with claims arising out of international

transportation and the substantive law applicable to such claims,'' as well as with regard to

documentation such as tickets and waybills.

The common civil aviation law is imperative, as today the air lines, passengers,

manufacturers and airports are global. The existing common civil laws need amendments to

cope up with the growth of the aviation industry especially after globalisation. Most of the text

is vintage old and need to be redrafted in order to support technical growth.

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References:

www.icao.com

www.iata.com

Monthly economic analysis

Studies in Aerospace Law Dr. Nagendra Singh & S.Bhatt

www.aerospacelaw.com

www.aviation lawers.com

The Law Offices of Countryman & McDaniel

International Law;

Private; Encarta Reference Library

League of Nations;

United Nations.

http://www.wilsonelser.com/MontrealConvention_April2006.pdf

http://cargolaw.com/presentations_montreal_con.html

http://www.dlaphillipsfox.com/article/178/Trade-&-Transport-Bulletin---Montreal-

Convention-1999-to-apply-in-Australia

http://www.encyclopedia.com/doc/1G1-55553583.html

http://www.spedlogswiss.com/freedoc/?id=10011982

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

SIREESH P.

FLYING INSTRUCTOR (UAV’S)

AIRCRAFT RESEARCH AND DESIGN CENTER,

HINDUSTAN AERONAUTICS LIMITED

Email id: seereesh@gmail.com, Mobile no: +91- 9740287428

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