Warsaw of damages and jurisdiction. The importance

Warsaw Convention, 1929Publicinternational air transportation on a commercial basis was started in 1920. Tillthen, differing limits of liability for injury and wrongful death and differinglegal bases for such limit have existed in many countries. How these divergentlimits and legal theories would be applied in the event of an accident wasuncertain. There was variation in compensation to be received by the victims indifferent jurisdictions further complicated the situation.

1 A search for a universallyapplicable solution in the international arena during late 1920’s. In 1925, theFrench Government took the initiative and attempted to organise the firstPrivate International Air Law Conference by circulating a draft convention.French draft was accompanied by a note stating it was of prime importance andurgent necessity for both travellers and shippers to know the extent of theirrights in case of accident, loss or damage to cargo and for the carriers to beable to determine the extent of exposure to its liability so as to insure therisk.2 Major outcome of thisconference was the establishment of an International Committee of Aerial LegalExperts (CITEJA). The sustained efforts of the CITEJA led to the preparation ofa draft which became the Convention for the Unification of Certain RulesRelating to the International Carriage by Air, signed at Warsaw on October 12,1929.The WarsawConvention was a unique attempt in the international arena mainly to deal withthe liability of the air carrier, notification of damages and jurisdiction. Theimportance of the convention lies in its effort to promote a common approachamong the air carriers to achieve universality of the conditions of carriageand to ensure uniformity in the limits of liability irrespective of the socio –legal conditions prevailing in the countries.

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The Warsaw Convention governs theair-carrier’s liability towards passengers and cargo in all air transportation amongmember states.The very purpose of the Warsaw Convention hasbeen an attempt to establish uniform liability rules in the internationalaviation sphere. The nature and extent of liability in aviation incidentsdepends upon the passenger – carrier relationship that is, contractual basis.

As a general rule, the issuing of a passenger ticket by the air carrier is apromise of transportation by air – a contract between the air carrier and thepassenger. The delivery of a ticket is mandatory on the part of the carrier. Inany case, if the ticket is not delivered, the carrier is not entitled to availitself of those provisions of the convention which exclude or limit itsliability towards the passenger.3Article 3(2) of the Warsaw Convention provides for unlimited liability of theair carrier only if he accepts a passenger without a passenger ticket. Drawbacks-The WarsawConvention itself provides certain exceptions to the term international carriage. It does not apply to gratuitous carriageperformed by an air transport undertaking, unless contracted otherwise. Theexpression international carriage hasbeen defined in this convention as any carriage which, as indicated by theagreement made by the parties, the place of departure and the place ofdestination, regardless of whether there be a break in the carriage or atranshipment, are situated either within the territories of any two parties orwithin the territory of a single party, if there is a concurred stopping pointinside a territory subject to the sovereignty, suzerainty, mandate or authorityof State, even though that State is not a party to the Convention.

A carriagewithout such an agreed stopping place between territories subject to the sovereignty,suzerainty, mandate or authority of same State is not deemed to beinternational for the purposes of this Convention.4″The Warsaw system of liability does not cover allaspects of the air carrier’s liability. Generally speaking, it appliesexclusively to certain damages occurring or caused during transportation.

Astrict performance of the Warsaw Convention suggests that it is applicable onlybetween the parties such as air carrier and the passenger. It does not applywhere the damaging act was committed by a third person who is neither acarrier’s servant nor agent. The liability of the latter is governed by theapplicable civil law or common law as the case may be.5Moreover, according to Article 17 of the WarsawConvention, the carrier is liable for damages sustained in the event of thedeath or wounding of a passenger or any bodily injury suffered by a passenger,if the accident which led to damage so sustained took place on board onaircraft.

Damage suits under thisarticle are unlikely to succeed because, as the application of the doctrine of res ipsa loquitor to air accidents isdoubtful, the passenger is seldom in a position or technically capable ofproving the negligence of the air carrier.6Despite this, the air carrier’s liability under the convention covers accidentswhich occur only in the course of the operations of embarking and disembarking.This clear expression has been construed differently, not only indifferentcountries, but by different courts in the same country. This judicial diversitycan be best illustrated by the following case laws:Marche v. Air FranceIn Marche v. Air France,7the French court of Cassation held that Article 17 covered only operationswhich exposed the passengers to the risksof air and therefore, the operations began with the passenger climbing onboard the aircraft and ended when he had finished descending from the aircraft.Air France v. NicoliIn AirFrance v.

Nicoli,8the French Court held that the application of Article 17 was not limited toaccidents arising from the risks of aerial navigation but also covered theaccidents on the airport apron, an area of the airport where an aircraft isparked, loaded or unloaded, both before embarkation and after disembarkation. Hence, in accordance with this interpretation, itwas obvious that the carrier was not liable for accidents which occurred at theairport terminal, as they were not covered under the operations of embarkingand disembarking. Thus a conclusion can be fairly drawn that the courts acrossthe nations were unclear as to what constituted the point when the carrier wasno longer responsible for the custody and the control of passengers.The convention had been unclear in explanation ofthe term in the air carrier exculpatory provisions of the article 20(1) whichstated:”The carrier is not liable if he provesthat he and his agents have taken all necessary measures to avoid the damage orthat it was impossible for him or them to take such measures.” In Manufactures Hanover Trust Co v. Alitalia Airlines,9 the court held that allnecessary measures should be construed as requiring not merely reasonablemeasure.

It clarified that all necessarymeasures means all measures that a prudent carrier would have taken inorder to avoid the particular accident.The defence ofcontributory negligence under Article 21 is permitted under the law of the courttrying the case and is a general defence in all the suits against the concernedair carrier under the Warsaw system. Hence, when Article 21 refers to thenational law of the court where the damage suit is being proceeded, theconsequences of contributory negligence may differ according to the applicablenational laws. The convention states, “Ifthe carrier proves that the damage was caused by or contributed to by thenegligence of the injured person the Court may, in accordance with theprovisions of its own law, exonerate the carrier wholly or partly from hisliability.

“10Though in United States and the United Kingdom, contributory negligence is acomplete bar to any damage suit, the position is quite different in Germany andFrance, where the stipulations of the parties which exonerate the carrier fromits liability in the case of contributory negligence are null and void. InIndia, the extent of damages claimed are reduced to the extent of negligencecontributed by it.The Warsaw Convention effectively prevents itsliability rules from being circumvented by an action in tort by providing inArticle 24 that any action for damages under Article 17, however founded, can be only brought subject to the conditions andlimits set out in this convention.11However founded as held in Solmon v.

KLM,12means that there is no liability of the air carrier outside the scope of theconvention.The carrier mayalso seek exemption from liability in respect of passenger deaths or injuriesfollowing an accident or incident on the basis of the somewhat fortuitousfailure of the claimant to commence an action within two years limit stipulatedunder Article 29(1) of the Warsaw Convention which explicitly states, “The right to damages shall be extinguishedif an action is not brought within two years, reckoned from the date of arrivalat the destination, or from the date on which the aircraft ought to havearrived, or from the date on which the carriage stopped.” In recent past there have been instances where passengers failedto receive correct information of total number of stoppages and time durationof each stoppage. According to Article 3(1) of the Warsaw Convention, for thecarriage of passenger, the carrier must deliver the passenger a ticket whichshall contain the following particulars –·      The place and date of issue·      The place of departure and destination·      The agreed stopping places·      The name and address of the carrier or carriers·      A statement that the carriage is subject to the rulesrelating to the liability established by the convention.In R v. Olympic Airways,13Greek High Court held that mere delivery of a ticket without proper noticeworded in explicit and unequivocal language does not avail the carrier to availitself of the benefit of liability limitations.

Similarly, in Lisi v. Alitalia – Linee Aeree Italiane,14US District Court of New York clearly held that delivery of a ticket in aminute size disallowed the air carrier to claim benefit of liabilitylimitations. In view of theabove, there hardly existed any uniformity of the rules regarding the liabilityof the air carrier. This is mainly due to the different interpretations ofvarious provisions of the Warsaw Convention from the original French text tothe equivalent English translation. Because of this, the fundamental purpose ofthe Warsaw Convention, to achieve uniformity of law in relation to liability,is yet to be achieved. In view of this uncertainty in the law, it was decidedto amend the Warsaw Convention. After prolonged discussions for over ten years,a diplomatic conference was convened in The Hague in September, 1955 whichadopted certain amendments to the original convention.

 Hague Convention,1955 The Hague Protocol was adopted by adiplomatic conference on September 28, 1955 which was held under the auspicesof the International Civil Aviation Organization and it brought about importantchanges in the Warsaw Convention of 1929 which has been discussed before in thepaper. The objective of this section is not todiscuss the merits or the demerits nor to examine questions of interpretationsthat may arise but to undertake an analytical study of the substance and ideabehind these additional provisions and also explain when essential, reasonsthat might have led to their adoption. As it is an established matter of knowledge that the Warsaw Conventionprovided for a limited compensation approximately $8,300 for the death of apassenger but also when read Art. 25 provided for unlimited liability if thedamage was caused by wilful misconduct on the part of thecarrier/servants/agents within the scope of employment. According to Article22(1) of the Convention: “Inthe carriage of persons the liability of the carrier for each passenger islimited to the sum of two hundred and fifty thousand francs. Where, inaccordance with the law of court seised of the case, damages may be awarded inthe form of periodical payments, the equivalent capital value of the saidpayment shall not exceed two hundred and fifty thousand francs. Nevertheless,by special contract, the carrier and the passenger may agree to a higher limitof liability.

“15 Asa matter of fact we see that the liability under this Convention is, like theWarsaw Convention, was measured in francs. As any currency this too, wasvulnerable to market fluctuations. This meant the victims could get differentvalue of compensation in real terms at different points of time.  In the years after the WarsawConvention there was a general feeling of discontentment as well as disillusionmentwith these limits in the event of death or injury as they were felt to beinadequate especially since courts in various countries notably in the UnitedStates of America allowed for a higher compensation than general practice fordeaths that occurred in accidents on domestic routes through a highly liberalconnotation of the term wilful misconduct. Another conference later took placein Montreal, Canada in 1999 to take steps to rectify some of the problems ofthis protocol.

  Montreal Convention, 1999An internationalconference was convened by the International Civil Aviation Organisation (ICAO)with the goal of drafting and approving a new convention to replace the WarsawConvention of 1929 and modifying inter carrier private agreements. On May 28,1999 a new Convention for the Unification of Certain Rules for InternationalCarriage by Air, hereinafter the Montreal Convention, was approved. Article 55of the convention states that it supersedes the Warsaw Convention. However,only 116 of the 191 ICAO member states, or just 60% are parties to it.

Theresult is unnecessary complication and confusion in determining which rulesgovern a particular international itinerary. Article 17 (1) ofthe Montreal Convention provides:”Thecarrier is liable for damage sustained in case of death or bodily injury of apassenger upon condition only that the accident which caused the death orinjury took place on board the aircraft or in the course of any of theoperations of embarking or disembarking.”16 The question thatany psychic injuries that accompany a bodily injury are compensable and whetherstress – disorder resulting from trauma undergone can be considered a bodilyinjury remain unanswered.

According to MC99, carrier liability is limited to113,100 SDR for death or injury of passengers. To defend claims in excess ofthis amount, the carrier must show that the damage caused is not due to itsnegligence and 19 SDR per kilogram for destruction, damage or loss of cargounless a separate declaration regarding the items of package by the consignee.17 SDR is a mix of currencyvalues established by the International Monetary Fund (IMF). The reason forreplacing Poincare franc, which had been defined in terms of specific goldcontent, with SDR as unit for compensation was that the SDR had one to oneratio with the United States dollar and it fluctuates within a very narrowrange, it is more stable than gold.  The following chart showscompensation under Montreal Convention:   From here on the researchers have lookedinto provisions of consumer safety in various parts of the world:European UnionEuropean Union hasa separate agency for general formulation and implementation of aviationpolicies in accordance to the international conventions. The agency, EuropeanAviation Safety Agency, is responsible for strategy and safety management, thecertification of aviation products in which it has exclusive competence likeairworthiness and the oversight of approved organisations.

It works incoordination with aviation agencies of respective member states of the EuropeanUnion. Established in 2002, it has its headquarters in Cologne (Germany) withan office in Brussels and three international permanent representations inWashington (USA), Montreal (Canada) and Beijing (China).  DeniedBoarding-In the event ofdenied boarding, the passengers have the right to get the cost of the ticketreimbursed within seven days or a return flight and to receive care whichincludes refreshments, meals, accommodation, transport between the airport andthe place of accommodation, limited number of free calls or emails.

They shall also beentitled to compensation totalling-·       EUR250 for all flights which cover 1500 kilometres or less.·       EUR400 for all flights which cover more than 1500 kilometres and less than 3500kilometres.·       EUR600 for all other flights.18 Cancellation-In case ofcancellation of flight, financial compensation is paid to passengers if theflight was cancelled and they were not informed no less than two weekspreceding travel. The compensation shall be the same as that for denial ofboarding. Travellers who are informed within the two weeks, are not entitled tocompensation if the airline offers a rerouting to the destination which is likethe cancelled flight.

In the event that the flight is cancelled because ofextraordinary circumstances, the airline may not pay compensation.19CaseLaws:Air Berlin v. Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V.

 The issue involved in Air Berlin v. Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband e.V.

(Federation of Consumer Organizations and consumer associations – Consumer Federation),20 was that the website of Air Berlin was designed in such a way so as to pre-select the least expensive flight between the route selected by the customer. It displayed air fare for the selected air service along with arrival and departure times in a table together and, separately, taxes and charges, the fuel surcharge and the total amount of those separately indicated items. A box below showed the price calculated on the basis of those figures, the service charge and below that, the final price. It also mentioned the price for other flights that appeared in the page without adding service charge. It could only be seen if the customer selected the flight. This was held to be against second sentence of Article 23(1) of Regulation No.

1008/2008 which provides that the final price to be paid should at all times be indicated.21 It was ruled that the in context of a computerised booking system, final price to be paid must be indicated whenever the prices of air services are shown, including when they are shown for the first time and the final price to be paid must be indicated not only for the air service specifically selected by the customer, but also for each air service in respect of which the fare is shown.  Corina van der Lans v. Koninklijke Luchtvaart Maatschappij NVIn Corinavan der Lans v. Koninklijke Luchtvaart Maatschappij NV,22complainant had a ticket reservation on a flight operated by KLM.However, the flight arrived with a delay of 29 hours.

According to KLM, theaircraft had developed a technical defect at Guayaquil Airport (Equador), inwhich the engine fuel pump and the hydro mechanical unit were defective. Due tonon-availability of the components there they had to be flown from Amsterdamand this was the cause of delay. KLM opposed the suit and claimed that in caseof extraordinary circumstances which could not have been avoided even if allreasonable measures had been taken, the airlines could escape liability.

It washeld that the carrier should hold stocks of spare components across the placesin the world and it should have rebooked the passengers. It was further ruledthat a technical problem which is not attributable to poor maintenance does notfall within the definition of extraordinary circumstances under article 5(3)Regulation (EC) No. 261/2004.

23 1 D. Cohen, Recent Attempts To Modify The Warsaw Convention, 8(3) Journal ofAir Law and Commerce 468, 148 (1983).2 Id, at 146.3 Art. 3(2), Warsaw Convention forthe Unification of Certain Rules for International Carriage by Air, 2242U.N.T.

S. 309 (Adopted on October 10, 1929).4 Art. 1(2), Warsaw Convention forthe Unification of Certain Rules for International Carriage by Air, 2242U.N.T.

S. 309 (Adopted on October 10, 1929).5 S. Bhatt et al, Air Law and Policy in India, 242, (1997).

6 R.H. Mankiewicz, Air law conventions and the new states,29, Journal of Air Law and Commerce 33, 34 (1963).7 Marche v. Air France, (1966) RFDA22, (Paris Chamber of Appeals).8 Air France v. Nicoli, (1971) RFDA173, (Paris Chamber of Appeals).9 Manufactures Hanover Trust Co.

v.Alitalia Airlines, 429 F. Supp. 964 (S.D.N.Y.

1977), (U.S. District Court forthe Southern District of New York).10 Art. 21, Warsaw Convention for theUnification of Certain Rules for International Carriage by Air, 2242 U.N.

T.S.309 (Adopted on October 10, 1929).11 Art 24, Warsaw Convention for theUnification of Certain Rules for International Carriage by Air, 2242 U.N.T.S.309 (Adopted on October 10, 1929).

12 Solmon v. KLM, (1951) U.S. Avi.

R378 (State Supreme Court, New York).13 R. v. Olympic Airways, as cited in 1(3) Schooner Case LawDigest, 256, 259 (1961).14 Lisi v.

Alitalia – Linee Aeree Italiane, 370 F.2d 508(United States Court of Appeals Second Circuit).15 Art. 22(1), Protocol to Amend the Convention for theUnification of Certain Rules Relating to International Carriage by Air,Hague (Adopted on September 28, 1955). 16 Art.

17(1), Montreal Conventionfor the Unification of Certain Rules for International Carriage by Air,(Adopted on May 28, 2009).17 B.J. Rodriguez, Recent Developments In Aviation LiabilityLaw, 21(1) Journal Of Air Law And Commerce 64, 66 (2000).18 Art. 7, Regulation (EC) No.261/2004 of the European Parliament and of the Council, 2004.19 Art.

5, Regulation (EC) No.261/2004 of the European Parliament and of the Council, 2004.20 Air Berlin v. Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.

V., C-573/13 (General Court (European Union) Fifth Chamber). Air Berlin21 Air Berlin, C-573/13, 574.22 Corina van der Lans v.

Koninklijke Luchtvaart Maatschappij NV,C-257/14 (General Court (European Union) Ninth Chamber). KLM case23 Article 5(3),Regulation (EC) No 261/2004 of the European Parliament and of the Council,2004: “An operating air carrier shall notbe obliged to pay compensation in accordance with Article 7, if it can provethat the cancellation is caused by extraordinary circumstances which could nothave been avoided even if all reasonable measures had been taken.”