Private International Private International Aviation LawAviation Law

The WarThe Warsaw Convention of 1929saw Convention of 1929The Montreal Convention of 1999The Montreal Convention of 1999

The Cape Town Convention of 2001The Cape Town Convention of 2001

Private International Aviation LawPrivate International Aviation Law

The body of law relating to agreements and treaties between different countries in which the liability of a party in one country to an injured party in another country can be established.

It is an effort to sort out the uncertainties of jurisdiction and liability when persons from various sovereign nations are involved.

The Warsaw Convention is the centerpiece of private international law. It was modified by the Montreal convention of 1999 and the Cape Town Convention of 2001.

The Warsaw ConventionThe Warsaw Convention

INTRODUCTIONINTRODUCTION• The Warsaw Convention of 1929 was signed in

October 12, 1929 in Warsaw, Poland. The convention established and elaborated among other things the principles of the air carrier liability for damage caused to passengers, baggage and goods, and also for damages caused by delay.

• The Warsaw convention of 1929 has since been amended several times, most notably through The Hague Protocol of 1955 and the Montreal Protocol of 1966. In 1999, a conference held in Montreal under the auspices of ICAO created and signed the Montreal Convention which updated and replaced the Warsaw system following its signing by 52 states.

CONT’DCONT’D• The Montreal Convention applies to international

transportation of passengers, baggage and cargo and replaces the various air carrier liability regimes around the world today with a set of new rules. The Warsaw Convention as amended by the Hague Protocol, 1955, was enacted into the Kenya law through the Carriage by air Act of 1993 to enable the rules contained in that Convention to be applied, with or without modifications, in other cases and, in particular, to non-international carriage by air; and for connected purposes.

Cont’dCont’d

• Kenya ratified the Montreal Convention of 1999 in April 2002. The provisions of the Convention, so far as they relate to the rights and liabilities of carriers, carriers servants and agents, passengers, consignors, consignees and other persons, and subject to the provisions of this Act, have the force of law in Kenya in relation to any carriage by air to which the Convention applies, irrespective of the nationality of the aircraft performing that carriage.

Objectives of the Warsaw Objectives of the Warsaw conventionconvention

• The creation of a uniform system of regulation for issues such as ticketing, baggage transport, movement of cargo, and claims by passengers or customers concerning lost or damaged luggage or cargo.

• To cap the amount of damages an air carrier could incur in an accident with the offsetting limitation to the defenses that air carriers could invoke to avoid liability.

The objectives of the Convention can be summarised as follows: -

To standardise national legislation systems in order to avoid unfairness in their application to similar cases;

To ensure that the risks of catastrophes associated with an air accident might not depend solely on performance of aeronautical activities;

To create a basis for insuring against air risk liability, which would not be possible without a limitation of liability;

To make life assurance possible independent of carrier liability;

To shorten dispute procedures and to make solutions easier to achieve;

To restore the balance of the burden of liability on the part of the carrier;

To protect a financially weak industry.

Air carrier liability.Air carrier liability.

• Articles 17,18, and 19 of the Warsaw Convention are of key importance.

• Article 17 states that an international air carrier will be liable for a passenger’s death or injury resulting from an “accident” that takes place when a passenger is:-

1) On an airplane,2) Boarding an airplane, or3) Disembarking an airplane.

• Article 18 imposes liability on an air carrier for the baggage that is checked and goods that are damaged while in the care and custody of the air carrier. Exposure to liability for baggage was expanded in the Montreal Convention of 1999 by defining baggage as both checked and unchecked (carry-on) baggage.

• Article 19 states that an air carrier is liable for any damages resulting from delays of passenger, cargo, or baggage.

• The use of the word accident to trigger liability under Article 17 has sometimes spawned conflicting views. In a 1985 case, the U.S Supreme Court defined the term accident as “an unexpected or unusual event or happening that is external to the passenger”.

Defenses available to airlines.Defenses available to airlines.

• Article 20 permits an airline to completely avoid liability if it took “all necessary measures” to avoid an accident, or if it was impossible for the carrier to avoid the accident.

• Article 21 permits an airline to mitigate its damages if the injuries to a passenger were caused in part or in their entirety by the contributory negligence of the injured passenger.

Pecuniary limits to liability.Pecuniary limits to liability.

• Article 22 limits an airline’s liability to 125,000 francs or approx. $8300.This limitation has engendered controversy- especially in view of the fact that a passenger injured in a domestic accident could recover damages in the millions of dollars.

• This amount was doubled by the Hague protocol of the Warsaw Convention.

• The Montreal Convention of 1966 modified this to $75,000.

• The latest revision came with the Montreal Convention of 1999. It created a two-tiered liability structure and modified Articles 21 and 22 of the Warsaw convention.

• First, an air carrier is held strictly liable up to $140,000 for injuries and/or death of a passenger due to an accident. For claims up to $140,000 the only defense for the carrier is contributory negligence of the passenger.

• In claims that exceed $140,000 the air carrier can now be held liable for unlimited amounts. However, the carrier can defend itself by using the defense that the harm caused to a passenger was not due to the carrier’s negligence or wrongful act. In claims larger than $140,000 the air carrier can also claim that the accident occurred due to circumstances out of the carrier’s control.

Forum for trial.Forum for trial.

• Article 28 provides the four possible places where a plaintiff may bring an action against an air carrier:

The place where the air carrier is domiciledThe primary place of business for the air carrierThe country where the contract of travel was

made (as long as the carrier does business in that country)

The destination country

• Interestingly, the Warsaw Convention did not permit a plaintiff to bring suit in his or her country. This rule tended to act as a bar to plaintiff’s filing suit due to the inconvenience and cost of having to file a lawsuit in a foreign country.

• Ultimately dissatisfaction with the inability of a passenger to bring a lawsuit in his or her home country led to modification of these provisions in the 1999 Montréal Convention.

• Under article 33 of the Montreal Convention, a plaintiff may file a lawsuit in the country of the “principal and permanent residence” of the passenger. However, to make use of this newly available forum the carrier must lease or own property in the passenger’s home country and fly to and from that country.

Statute of limitations.Statute of limitations.

• Article 29 of the Warsaw Convention provides for a 2-year statute of limitations for bringing to an action against a air carrier. Some courts have calculated the 2-year limitation strictly, and others have allowed for suspended periods to the time limits.

THE WARSAW SYSTEMTHE WARSAW SYSTEM

• At the international level the carrier's liability is governed by the so-called Warsaw System, considered to be one of the two pillars on which international regulations in the aeronautical sector are based. However, the System has now become fragmented into different agreements and laws which apply at regional level and sometimes only to specific routes. Despite this, the System is still of considerable importance.

• Its basis is the Convention for the unification of certain regulations relating to international air transport of 1929, which concluded negotiations at the two conferences in Paris (1925) and in the Polish capital (1929). The purpose of the conferences and of the Convention was that of harmonising the different national regulations and imposing a limit on airline companies' exposure to claims for damages, thereby containing insurance premiums. The contracting parties had to face the fundamental problem of avoiding conflicts with the applicable law which was developing in the absence of a treaty, conflicts which could seriously jeopardise the development of international air transport.

WARSAW CONVENTION AND SUBSEQUENT WARSAW CONVENTION AND SUBSEQUENT PROTOCOLSPROTOCOLS

• The majority of international air transport today is governed by the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air adopted on 12 December 1929. The convention is currently in force in 146 states and represents the most widely accepted unification of private law.  

• The Warsaw Convention was followed by a series of further international agreements which amended and added to the Convention, bringing about the Warsaw System. These agreements are as follows:-

THE HAGUE PROTOCOL OF 1955

• This amended the Convention in terms of travel documents; these regulations represented a substantial rewording in a simpler, more up-to-date form, the doubling of the limits and the concept of wilful misconduct or equivalent negligence which is defined more precisely. Under the said amendment the liability of carriers was given a ceiling of 250,000francs.

THE GUADALAJARA CONVENTION OF 1962

• This supplemented the Warsaw Convention in terms of the contracting company's liability in cases where the transport is provided by another carrier: essentially it relates to charter flights in the context of an association.

• This Convention distinguishes the carrier who concludes the agreement and the carrier who actually carrys it out either wholly or partly.

THE CITY OF GUATEMALA PROTOCOL OF 1971

• The protocol has not yet come into effect because the necessary ratification has not taken place; in addition to introducing further simplification to the travel documents, this protocol objectively intensifies the carrier's liability, further increasing its limits, and introducing two important new factors: the settlement inducement clause and the domestic supplement.

THE FOUR MONTREAL PROTOCOLS OF 1975• These protocols amended the earlier acts in terms

of the limits of liability, and the fourth in particular which specified that the Warsaw System did not apply to postal transport; of these protocols the first two only came into effect on 5 February 1996, while the third and fourth have not yet been ratified by a sufficient number of States. The United States has signed only the last two and has ratified none of them.

THE MONTREAL AGREEMENT OF 1966THE MONTREAL AGREEMENT OF 1966

• A Further amendment was the Montreal Agreement of 1966, which aimed at changing the fault liability of the carrier into a risk liability.

• The Montreal Agreement 1966 was not a protocol attached to the Warsaw Convention but a private agreement between air carriers and US Civil Aeronautics Board. It is also part of the Warsaw System.

• These progressive amendments may be explained as the consequence of a difficult balance between the body of international law and that of the USA regarding the protection of passenger rights, especially in terms of the limits on carrier liability.

The scope of the Warsaw The scope of the Warsaw conventionconvention

• The Warsaw convention applies to the international carriage of persons but excludes international carriage governed by any international postal convention (Article 2), the carriage of post and postal packages, test flights for the establishment of regular routes and flights operated under exceptional circumstances and outside the normal activities of an airline company e.g the case of Vanderburg vs. French sardine company,

Cont’dCont’d

• where an accident occurred to an aircraft bringing a new engine to a ship that had developed engine problem while fishing foe sardine. The California superior court held that the Warsaw Convention on the liability of carrier was not applicable.

Who is a passenger?Who is a passenger?

• It is a person who is carried by aircraft by virtue of a contract of carriage.

• In Sulweski vs Federal Express Corporation, the mainteinance representative who was in the aircraft at the time of the accident was held not to be a passenger.

The carrier's liability in the Warsaw SystemThe carrier's liability in the Warsaw System

• The main new features introduced by the Convention, and reinforced by the subsequent acts, are the presumption of the carrier's guilt when one of the facts contemplated in the Convention itself is found to apply: -

• The death of the traveller, or injuries as a result of damage suffered on board the aircraft, during boarding and disembarking operations;

• The destruction or loss of baggage, or damage thereto, during air transport, understood as the period during which the baggage " is in the charge of the carrier in the aerodrome or in any location in the event of landing outside an aerodrome"; though non-air transport outside an aerodrome is generally excluded, transport provided " in execution of the air transport contract in connection with loading, delivery or transhipment" is regarded as coming under the cover of the aircraft;

• Delay.

Current problems with the Warsaw SystemCurrent problems with the Warsaw System

• As discussed above the System remains one of the two pillars on which international air transport law is based, but it is now seen as somewhat outdated because of the changes that have occurred in civil aviation and in the world economy since it first saw light in 1929, and in particular because of the difficulties encountered in bringing it up to date.

• Air transport has grown tremendously and is no longer the weak industry it was in 1929. The insurance sector has also developed and it is widely thought that the limitation on liability is no longer necessary for the survival of these two sectors of the economy.

• Other changes that have occurred include; the disparity of the standard of living in different countries, the increasing diversity of their legal provisions and the complexity of these, the inadequacy of the limits contemplated in the Convention in industrially developed countries, and inflation which has served to highlight this inadequacy, the increase in litigation due to the consumer mentality, the greater complexity of legal cases and that of the transport system.

• There is the difficulty of reforming the System, which is also evidenced by the fact that many countries, including the main players, have failed to ratify the acts that have amended or supplemented the basic Convention.

• At the substantive level, the central economic focus is the provision of liability limits for cases of death and injury and the limits thereon. This focus of attention presents two aspects, one of an internal nature regarding the public policies on passenger protection, the other of an international nature relating to the aeronautical interests of the industrially developed and developing countries.

APPLICABILITY OF THE APPLICABILITY OF THE WARSAW SYSTEMWARSAW SYSTEM

• To understand and interpret the provisions of the Warsaw Convention, it is important to keep in mind the historical background of the convention. As stated above the Convention was made when the aviation industry was still in its infancy. Today, more than 70 years after its birth, the Convention is still of major importance. However, some of its provisions are outdated.

• The purpose of the Convention was to create a certain degree of uniformity in the rules governing the carrier’s liability in a field where conflict of law would otherwise constitute a major problem. By creating uniformity both the carrier and the passenger are able to foresee the risk and can make arrangements to insure themselves against possible losses. The purpose was also to protect, at that time, a financially weak industry and create an incentive for further development of the emerging aviation industry.

• The Warsaw Convention applies to international carriage of persons, baggage or goods for reward. There are many aspects of carriage by air that are not covered by the Warsaw Convention. However, to be sure that the scope of the convention does not become even narrower, Article 32 makes the Convention mandatory.

• Where the convention applies according to Article 1 it cannot be contracted out of before the damage occurs. Neither can the carrier, in the contract or in a special agreement, infringe upon the rules laid down in the Convention. Furthermore, uniformity of law is made effective by providing that any action for damages can only be brought subject to the conditions and limits set out in the Convention.

WARSAW SYSTEM CASES IN WARSAW SYSTEM CASES IN KENYAKENYA

• The preamble of the Carriage by Air Act No. 2 of 1993 makes the Warsaw Convention as amended by The Hague Protocol of 1955 a part Kenya law. This allows the rules contained in Convention to be applied, with or without modifications, in other cases and in particular to non-international carriage by air; and for connected purposes.

• The following are two examples of cases which have been concluded in Kenyan courts and touches on the Warsaw Convention.

Ngunjiri v. British airways cargo Ngunjiri v. British airways cargo (civil case 60 of 2000)(civil case 60 of 2000)

• The plaintiff trading as “African Hut”, in partnership with her daughter (the Consignee), entered into a contract for the carriage of handicrafts, with the defendant to the USA for sale therein. It was a contractual term that the defendant would be liable to the plaintiff in damages for damage to the goods or delay in the delivery of the same. The packed goods had been marked as fragile. The goods arrived in the USA 29 days late and damaged.

• The plaintiff sought special damages amounting to Kshs 9,396,187.20. The plaintiff claimed damages for loss of expected profits, expected business for Christmas from no less than three wholesalers.

• High court judge Justice Ondeyo found the defendant liable and ordered to pay damages.

KIHUNGI & ANOTHER V. IBERIA AIRLINES OF KIHUNGI & ANOTHER V. IBERIA AIRLINES OF SPAIN SPAIN (CIVIL APPEAL NO 6 OF 1989)(CIVIL APPEAL NO 6 OF 1989)

• The appellants sued the respondent airline in the superior court seeking damages for fatal injuries sustained by their deceased son who was a passenger for reward in the respondent’s airline.

• The appellate judge held that:

• The deceased’s death took place after he had come under the control and direction of the airline and was engaged actively in operations of embarking.

• The requirements of article17 of the Warsaw Convention having thus been satisfied, the carrier was liable for damages sustained by the appellants on account of the death of the deceased unless the carrier could show that at the time the deceased met his death he was engaged in operations other than those of embarking.

• The carrier had failed to discharge its onus of proof.

The Montreal ConventionThe Montreal Convention

THE MONTREAL CONVENTION, 1999THE MONTREAL CONVENTION, 1999

• The Warsaw convention became law during the infancy of inter-continental aviation, and it soon proved itself incapable of adequately regulating liability issues in the burgeoning jet age. Additional instruments were therefore put in place to try and address the inadequacies of the convention. However not all states executed all of these extra instruments resulting in the confused state of the Warsaw “System”.

• As the court of appeals in the USA second circuit describes in Chubb & Son, Inc v. Asiana Airlines:

• The Warsaw Convention “system” includes the various laws, treaties and individual contracts governing the international transportation of persons, baggage, and goods by air. No one treaty or contract governs the relationships of one state with other States. A single state might be bound to one version of the Warsaw system convention with one state, and another version of the same with another state, a separate bilateral treaty with another state, and a separate contract with a private party.

• This state of affairs led to the Montréal convention of 1999. The convention “is not an amendment to the Warsaw Convention. Rather, the Montréal Convention is an entirely new treaty that unifies and replaces the system of liability that derives from the Warsaw Convention.”

• The Montréal Convention supersedes the Warsaw Convention as and between states that are party to both the Montréal and Warsaw Conventions. However the Warsaw scheme remains, and governs in cases where a controversy involves states that are signatories to the Warsaw Convention.

• The Montréal Convention differs from the Warsaw Convention in several aspects. For example the English text of the Montréal Convention is equally authoritative to the French text. Under the Warsaw system the French text took control over the English text.

• Similarly, the Montréal Convention finally and authoritatively terminates the Warsaw Convention reliance on the antiquated gold franc as a method of compensating injured passengers. The new system utilizes the system of Special Drawing Rights (SDRs), the value of which is determined by the International Monetary Fund (IMF).

The Cape Town The Cape Town ConventionConvention

The Problem It SolvedThe Problem It Solved Because aircraft are easily moved from one country to another,

there are inherent difficulties in financing arrangements and securing the interests of the lenders.

A lender in France may wish to use a newly purchased aircraft as security for a loan on that aircraft. However, the value of that aircraft as collateral for the loan is diminished by the fact that the aircraft can be easily moved to another country where the lender’s interests may not be protected.

It is because of this type of issue that several nations participated in the UN International Institute for the Unification of Private Law (the “Cape Town Convention”.)

The participants sought to draft an agreement that would create a more stable and enforceable legal rubric for aircraft title, security interests in aircraft, and aircraft leasing.

Features of The Cape town ConventionFeatures of The Cape town Convention

• 53 nations adopted the Cape Town Convention in 2001.• The Cape Town Convention addresses airframes, aircraft

engines, and helicopters that exceed certain thresholds.• Significant features of the Convention include:- The right of creditors to repossess or sell aircraft in case

of default on a loan A high-tech international aircraft registry that gives first-

in-time priority to creditors who file security interests in an aircraft

Features of The Cape town ConventionFeatures of The Cape town Convention

Creation of a system of protections for creditors and debtors

Permitting of creditors to deregister an aircraft when a debtor defaults and to procure the export of the aircraft

Giving to creditors the ability to take possession or control of an aircraft upon a default

• The hope is that the Cape town Convention will result in lower financing charges and provide easier funding of aircraft transactions.

• The Convention became effective on April 1, 2004.

QuizQuiz• Classify the major conventions ever drawn relating to

international aviation law as either public or private. (3marks)• Specify the provisions of Articles 17,18 and 19 of the Warsaw

Convention. (6marks)• What expansions were made to which of the articles above by

the 1999 Montreal Convention? (2marks)• Enumerate modifications made by the Montreal Convention of

1999 to Pecuniary limits to liability and Fora for trial. (4marks)• True/False: An ordinary passenger onboard a commercial

airbus is bound by the provisions of the Warsaw Convention. (1mark)

• Discuss one Kenyan case that touches on the Warsaw Convention. (5 marks)

• What problems did the Cape Town Convention seek to solve? (3marks)

QuoteQuote

• "There is only one thing more painful than learning from experience and that is: not learning from experience."

Archibald McLeish