Module 3

MODULE 3: CARRIERS LIABILITY UNDER WARSAW
CONVENTION AND MONTREAL CONVENTION

WARSAW CONVENTION

a) HISTORY AND LEGAL BACKGROUND:

After the World War I first airlines which were capable to carry passengers, mail and freight
were made and hence the unification of private air law of international carriage by air
became a priority as there was no established international machinery for the adoption of
international conventions and hence the French Government in the year 1923 proposed a
diplomatic conference to adopt national laws relating to liability in the carriage by air. While
doing so France also realised the complex foreign elements which were required to unify
the law at an international level so as to prevent the unforeseeable conflicts of law and
conflicts of jurisdiction. Unfortunately the conference had been formally deferred on two
occasions because of the reluctant behaviour of the governments of various nations as they
did not want to act on such a short notice without any knowledge of the proposed
convention.

However, finally between 27th October to 6th November 1925, at the initiative of the French
Government the first International Conference on Air Law was held in Paris to study the
draft convention. In this conference it was decided that an organisation of legal experts
should study the draft prior to its final submission for approval so the International
Technical Committee of Legal Experts on Air Questions (Comité International Technique
d’Experts Juridiques Aériens, CITEJA) was formed in 1925 for this purpose which continued
the work of the Conference.

CITEJA held several sessions to prepare a draft convention which focused on the
development of unification of air law and this was then finally presented for consideration
at the Second International Conference on Private Air Law which was held at the Royal
Castle in Warsaw from 4th to 12th October 1929.

The Warsaw Convention was signed on 12th October 1929.This was formally titled as the
Conventionfor the Unificationof Certain Rules Relating to International Carriage by Air.

This became the very first international treaty which had a comprehensive legal framework
that addressed the claims for damage to persons and property arising from international air
carriage. It unified an important sector of private air law. The main goal of the treaty was to
promote the development of a new commercial airline industry by establishing strict limits
for liability of air carriers.

The Warsaw Convention of 1929 was entered into force on 13 February 1933 and has been
adopted by 151 States till date. Overtime even though there has been several amendments
to this treaty it still constitutes as one of the most important principles for the basis of
modern aviation law.

b) APPLICABILITY OF THE WARSAW CONVENTION:

According to Article 1(1) of the WARSAW CONVENTION this treaty applies to “all
international carriage of persons, luggage or goods performed by aircraft for reward. It
applies equally to gratuitous carriage by aircraft performed by an air transport
undertaking.” 1

With reference to Article 2(1) this convention also applies to carriages performed by the
State or by legally constituted public bodies provided it falls within the conditions laid down
in Article 1 but does not apply to carriages performed under the terms of any international
postal Convention according to Article 2(2) of the treaty.2

However this Convention does not apply to any international air performed for the purpose
of experimental trial by air navigation undertakings with the view to establish a regular line
of air navigation, nor does it apply to carriage performed in extraordinary circumstances
outside the normal scope of an air carrier's business as stated under Article 34 of the
Convention.

c) ISSUES THAT WARSAW CONVENTION AIMS TO ADDRESS:

The Warsaw Convention aims to:

v Regulate the liability of air carriers in case of loss, damage, delay, injury or death due to
an accident (both in regards to passengers and also baggage and cargo) on international
flights. The convention also created a penalty for non-compliance with the particulars to
be included in the documents of carriage, (carrier loses monetary cap limiting his
liability).

v It aimed to achieve uniformity of rules governing claims arising from international air
transportation so as to avoid conflict of law.

v It also set rules whereby the claimant does not need to prove the fault of the carrier, or
his agents, in respect of a loss incurred by him.

v It aimed to fix a monetary cap limiting the liability of the air carrier and also defined the
circumstances in which the carrier would lose the benefit of the monetary cap limiting
its liability.

1 CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR (
WARSAW CONVENTION), SIGNED AT WARSAW ON 12 OCTOBER 1929, CHAPTER 1 ARTICLE 1(1) OF THE
CONVENTION
< http://www.jus.uio.no/lm/air.carriage.warsaw.convention.1929/1.html > (accessed March 3rd 2018)
2 CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR,
SIGNED AT WARSAW ON 12 OCTOBER 1929 (WARSAW CONVENTION) CHAPTER I ARTICLE 2(1) AND ARTICLE
2(2)
< http://www.lawbiz.ch/d/spahni/airlaw/warsaw.warsaw.html > (accessed March 3rd 2018)

2

v Aimed to limit carrier liability so as to foster growth of the nascent commercial airline
industry.

v It laid down the requirements for the format and content of air transport documents,
luggage and passenger tickets and air consignment notes.

v It laid down the procedures for claims and restitution. However the claims must be
initiated within two years starting from the date of arrival of carrier to the destination or
from the date on which the carriage stopped else one may lose their right to damages.
This time period will be determined by the Court Of Law seised of the case according to
Article 29 sub-sections 1 and 2 of the convention.

The convention created a comprehensive liability system to serve as the complete
mechanism for remedying injuries suffered in the course of the international transportation
of persons, baggage, or goods performed by aircraft. The remedial system was designed to
protect air carriers against catastrophic, crippling liability by establishing monetary caps on
awards and restricting the types of claims that may be brought against carriers.3

In case a passenger suffers a personal injury while on board an aircraft or in course of any
operations of embarking or disembarking which does not fall within the scope of the
convention he shall have no alternate remedy and hence he is not liable to compensation.

d) REQUIREMENTS FOR VALIDITY OF DOCUMENTS:

After the Warsaw Convention uniformity was also reached in the presentation and legal
significance of documents of air carriage (as discussed in Chapter II of the Warsaw
Convention).The provisions laid down in the Convention are still followed by the airlines
today. The carrier is supposed to provide two tickets, one for the passenger and the other
for the luggage of the passenger.

The Convention contains detailed rules about the contents of the ticket. The format and the
particulars of these documents have been used by the airlines for several decades.

SECTION I Article 3 Subsection 1 clause (a) to (e) of The Warsaw Convention specified five
items to be included in the passenger ticket to make it valid. They are as follows:

§ The place and date of issue;
§ The place of departure and of destination;
§ The agreed stopping places, provided that the carrier may reserve the right to alter the

stopping places in case of necessity, and that if he exercises that right, the alteration
shall not have the effect of depriving the carriage of its international character;
§ The name and address of the carrier or carriers;
§ A statement that the carriage is subject to the rules relating to liability established by
this Convention.

However in case of absence, irregularity or loss of the passenger ticket it will not affect the
existence or the validity of the contract of carriage, which shall none the less be subject to
the rules of this Convention. But if the carrier accepts a passenger without a passenger

3 WARSAW CONVENTION < https://aviation.uslegal.com/international-aviation-law/warsaw-convention/>
(accessed on 4th March 2018)

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ticket having been delivered he shall not be entitled to avail himself of those provisions of
this Convention which limit his liability vide Article 3 sub section 2.

Section II Article 4 has stated that a luggage ticket must be made duplicate, containing the
following eight specific pieces of information which are:

§ The place and date of issue;
§ The place of departure and of destination;
§ The name and address of the carrier or carriers;
§ The number of the passenger ticket;
§ A statement that delivery of the luggage will be made to the bearer of ¡ the luggage

ticket;
§ The number and weight of the packages;
§ The amount of the value declared in accordance with Article 22(2);
§ A statement that the carriage is subject to the rules relating to liability established by

this Convention.

In case of absence, irregularity or loss of the luggage ticket the existence or the validity of
the contract of carriage shall not be effected and it which still be subjected to the rules of
this Convention.

Regardless, if the carrier accepts luggage without a luggage ticket having been delivered, or
if the luggage ticket does not contain the number of the passenger ticket, the number and
weight of the packages and a statement that the carriage is subject to the rules relating to
liability established by this Convention the carrier shall not be entitled to avail himself of
those provisions of the Convention which exclude or limit his liability.

According to Article 8 clause (a) to (q) of the Convention 17 distinct categories of
information were required to be included in the “air consignment note” (air waybill) so as to
hold it valid. These are:

§ the place and date of its execution;
§ the place of departure and of destination;
§ the agreed stopping places, provided that the carrier may reserve the right to alter the

stopping places in case of necessity, and that if he exercises that right the alteration shall
not have the effect of depriving the carriage of its international character;
§ the name and address of the consignor;
§ the name and address of the first carrier;
§ the name and address of the consignee, if the case so requires;
§ the nature of the goods;
§ the number of the packages, the method of packing and the particular marks or
numbers upon them;
§ the weight, the quantity and the volume or dimensions of the goods;
§ the apparent condition of the goods and of the packing;
§ the freight, if it has been agreed upon, the date and place of payment, and the person
who is to pay it;
§ if the goods are sent for payment on delivery, the price of the goods, and, if the case so
requires, the amount of the expenses incurred;

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§ the amount of the value declared in accordance with Article 22(2);
§ the number of parts of the air consignment note;
§ the documents handed to the carrier to accompany the air consignment note;
§ the time fixed for the completion of the carriage and a brief note of the route to be

followed, if these matters have been agreed upon;
§ a statement that the carriage is subject to the rules relating to liability established by

this Convention.45

The air waybill is by far the most essential document issued in respect of the international
carriage of cargo. It evidences the contract or agreement of international carriage between
the parties and plays a central role in the liability regime.

e) DEFINITION OF THE TERM ACCIDENT:

The Oxford English dictionary defines accident as “An unfortunate incident that happens
unexpectedly and unintentionally, typically resulting in damage or injury”.

According to Article 17 of the Warsaw Convention “The carrier is liable for damage
sustained in the event of the death or wounding of a passenger or any other bodily injury
suffered by a passenger, if the accident which caused the damage so sustained took place
on board the aircraft or in the course of any of the operations of embarking or
disembarking”.6

Hence if any mishap occurs which results to death or wounding of the passenger or any
bodily injury of the passenger while on the air carrier the liability to pay damages lies upon
the aircraft carriersolely.

Thereby Article 17 clearly imposes liability upon the carrier if the plaintiff proves:

(1) An accident (2) caused (3) death or bodily injury, (4) while the passenger was on board
the aircraft or was in the course of embarking or disembarking.

The Warsaw Convention predicates the airlines liability to passengers upon the occurrence
of an "accident." but it clearly does not define the term "accident." Courts, therefore, must
interpret article 17 to determine the meaning of the term as an element of liability. The
term “accident” has been used in the Convention as a trigger for recovery of passenger
death or bodilyinjury.

The term “accident” has spawned much litigation over the years. One of the most
prominent cases in which the meaning of accident was determined was “Olympic Airways v.
Husain” which was United States Supreme Court case related to Olympic Airways Flight

4 DOCUMENTARY REQUIREMENTS IN INTERNATIONAL CARRIAGE
<https://www.mcgill.ca/iasl/files/iasl/aspl636_documentary_requirements_intl_carriage.pdf > (accessed on
6th March 2018)
5 CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR,
SIGNED AT WARSAW ON 12 OCTOBER 1929 ( WARSAW CONVENTION) <
https://www.mcgill.ca/iasl/files/iasl/warsaw1929.pdf > ( accessed on 7th March 2018)
6CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR,
SIGNED AT WARSAW ON 12 OCTOBER 1929 ( WARSAW CONVENTION)
< https://www.mcgill.ca/iasl/files/iasl/warsaw1929.pdf > (accessed on 7th March 2018)

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417. The decision of this case was based upon the judgement of Air France v. Saks (1985)
7where Justice O’Connor, stated that an “accident” under Article 17 of the Warsaw
Convention “arises only if a passenger’s injury is caused by an unexpected or unusual
event or happening that is external to the passenger. This definition should be flexibly
applied after assessment of all circumstances surrounding a passenger’s injuries”.8

In Olympic Airways v Husain, the question before the Court was that can pre-existing
medical condition which became aggravated by airplane conditions, be considered an
"accident" under the Warsaw Convention's Article 17 holding the airline responsible for
damages.

Facts of the Case:

Rubina Husain and her husband Dr.Hanson were sitting in non-smoking seats on Olympic
Airways Flight 417 that was located very close to the smoking section. As Dr.Hanson was
allergic to second-hand smoke the couple requested to be moved but were denied by the
flight crew, and because of the inhalation of smoke during the flight, Dr.Hanson died.
Rubina Husain filed suit in a California federal district court seeking damages under Article
17 of the Warsaw Convention. Upholding the statute from the Warsaw convention, the
district court ruled that Mr.Hanson’s death was an "accident" and awarded Rubina Husain
$1.4 million.9 10

f) MEANING OF EMBARKATION AND DISEMBARKATION:

Usually embarkation means the process of loading an airplane with passengers meanwhile
disembarkationis just the opposite where one removes orunloads passengers from an air
carriage but under the Warsaw Convention defining the proper scope of embarkation and
disembarkationwithinthemeaning ofarticle 17has beenaconstant topic ofcontroversy.

According to Article 17 the liability of the carrier will arise if an accident occurs while on
board on the aircraft or while in course of embarking or disembarking which leads to death
or wounding of a passenger or any other bodily injury to the passenger.

As the phrase "during the operations of embarking and disembarking" is very vague Courts
attempting to determine whether a passenger was in the process of embarkation or
disembarkation have generally developed one of two different tests:

• a location test which focuses on the passenger’s location with regard to the aircraft.
• the other, and more prevalent, the tripartite test, which has gained increased

acceptance with the courts, and focuses on

7 United States Supreme Court AIR FRANCE v. SAKS, (1985) No. 83-1785 Argued: January 15, 1985
Decided: March 4, 1985 < http://caselaw.findlaw.com/us-supreme-court/470/392.html > (accessed on 7th
March 2018)
8 ACCIDENTS & INJURIES IN AIR LAW BY PAUL STEPHEN DEMPSEY
< https://www.mcgill.ca/iasl/files/iasl/Titans.pdf > (accessed on 7th March 2018)
9 JUSTIA US SUPREME COURT , OLYMPIC AIRWAYS V. HUSAIN, 540 U.S. 644 (2004)
< https://supreme.justia.com/cases/federal/us/540/644/ > (accessed on 7th March 2018)
10 OLYMPIC AIRWAYS V. HUSAIN < https://en.wikipedia.org/wiki/Olympic_Airways_v._Husain > (accessed on
8th March 2018)

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(1) the activities of the passengers;
(2) their location at the time of the incident; and
(3) the amount of supervision exercised by the air carrier.

Thus, if passengers were located near their airplane and were engaged in activities under
the direction of the airline, they could be considered as proceeding with embarkation or
disembarkation.

One such prominent case that construed the meaning of “disembarking” as used in Article
17 was MacDonald v. Air Canada 11in which an elderly plaintiff had fallen in the baggage
collection area of the terminal. The First Circuit held alternately that no "accident" had
occurred within the scope of Article 17 as the plaintiff had disembarked. With reference to
the latter ground of its holding, the court apparently interpreted the meaning of Article 17
by looking at the passenger's location at the time of injury, and indicated that liability does
not exist when a passenger "has reached a safe point [within] the terminal”. Thus, courts
defining "disembarking" have consistently refused to extend the coverage of the Warsaw
Convention to encompass injuries occurring within the terminal.

As for the definition of “embarking” in the famous case of Day v. Trans World Airlines, Inc12.
the District Court allowed recovery to the plaintiffs who had suffered injuries from a
terrorist attack while preparing to board a jetliner. The district court concluded that “the
issue as to any plaintiff is not where his feet were planted when the killing began, but
rather, in what activity was he engaged”.

On appeal, the Second Circuit Court of Appeals affirmed the district court's decision, utilizing
the tripartite test. Upon consideration of the injured passengers' activities and location, and
the air carrier's control over them, the Second Circuit concluded that the plaintiffs were
undergoing the process of embarkation. The court held that since the plaintiffs were
directed by airline employees to stand in line, they no longer were "free agents roaming at
will," but were already under the airline's control in the course of embarking.

g) RECOVERABLE DAMAGES:

The first responsibility of an air carrier is to take the utmost care of their passengers while
travelling. Chapter III of the Warsaw Convention states that airplanes can be held financially
responsible (“liable”) for injuries resulting from even its slightest carelessness (“negligence”)

In case of death or any wound or any bodily injury while a passenger is on-board or in
process of embarking or disembarking an air carriage, the airline is held liable to pay for the
damages. As the liability is built on negligence the plaintiff just needs to prove that an
accident occurred and it is assumed that it occurred due to fault of the air carrier.

11 JANICE COUSINS , WARSAW CONVENTION―AIR CARRIER LIABILITY FOR PASSENGER INJURIES SUSTAINED
WITHIN A TERMINAL , FORDHAM LAW REVIEW
<https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=https://www.google.co.in/&httpsredir=1&article
=2241&context=flr > (accessed on 9th March 2018)
12JOHN R. LOM , THE WARSAW CONVENTION - THE DILEMMA OF THE DISEMBARKING PASSENGER UNDER
ARTICLE 17 OF THE WARSAW CONVENTION
<http://dspace.creighton.edu:8080/xmlui/bitstream/handle/10504/39058/75_11CreightonLRev1383%281977
-1978%29.pdf?sequence=1&isAllowed=y > (accessed on 9th March 2018)

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Article 22 of the Convention has created monetary liability limits on damage awards against
an international airline for which the sum was set to 125 000 gold franc. However the
passenger had an opportunity to recover more if he proved wilful misconduct on the part of
the carrier. The carrier also had the opportunity to escape liability if he proved that he and
his employees have taken all necessary measures to prevent the damage.

In case of loss or damage to any registered luggage or goods while under the care of the air
carriage, the liability of the carrier is limited to a sum of 250 francs per kilogram unless the
consignor had quoted a special value at delivery and paid a supplementary sum for it while
handing the package to the carrier. In such a case the carrier will be liable to pay a sum not
exceeding the declared sum, unless he proves that that sum is greater than the actual value
to the consignor at delivery ( Vide Article 18 and 22 of the Convention).

Article 19 has stated that the carrier is liable for damage occasioned by delay in the carriage
by air of passengers, luggage or goods.

h) INTERPRETATION OF THE TERM “BODILY INJURY”:

It is difficult to determine what types of injuries are contemplated by the term bodily injury.
This term has not been clearly explained in the Convention and the job to understand its
meaning lies within the power of the Court. As an accident can cause both physical and
emotional injury and the question that many courts have struggled with is whether
emotional damages are recoverable, according to article 17.

This was explained by the U.S. Supreme Court, in Eastern Airline v. Floyd13, who established
that recovery under Article 17 of the Warsaw Convention requires either death or bodily
injury and that mental distress alone is not sufficient to receive compensation under Article
17.In this case the Eastern Airlines flight departed from Miami, bound for the Bahamas but
unfortunately the flight lost power in all three engines and was preparing to ditch in the
Atlantic ocean; however, miraculously, the engines restarted and the plane landed safely
but as the passengers who had been frightened out of their wits, and many had suffered
severe emotional injury sued the airlines. However the Court concluded that an air carrier
could not be held liable under Article 17 when an accident has not caused a passenger to
suffer death, physical injury, or physical manifestation of injury.

i) DEFINITION OF TERM – “CARRIER” AND ITS AGENT:

The Warsaw Convention does not clearly define the term carrier or its agent but as per
usage the literal meaning derived is that a carrier means any aircraft or air carrier which is
used as means of conveyance by people, and to carry luggage or goods from one place to
another meanwhile the agents of the aircraft are the people associated with the airline
while on board as well as at the time of embarking and disembarking. It also includes the
people serving the passenger with air ticket for travelling. The term "agents" also refers to
independent contractors with whom the carrier has contracted for the performance of a
specified task.

13 Eastern Airlines, Inc. v. Floyd < https://www.oyez.org/cases/1990/89-1598 > (accessed on 10th March 2018)

8

The term Carrier extends to carriages for which the place of departure and the place of
destination are either situated within the territories of two High Contracting Parties, or
within the territory of a single High Contracting Party. In the case of a carriage to be
performed for several successive journey the air carriers is deemed, to be one undivided
carriage.

j) DEFENCE THAT CAN BE EXTENDED BY THE CARRIER:

At the outset an air carrier is liable for any death, accident or bodily injury or damage
caused the by delay in the carriage by air of passengers, luggage or goods while on board an
aircraft or at the time of operations of embarking or disembarking they can be exempted
from any responsibility in the following situations:

§ The carrier is not held liable if he can prove that he along with his agents had taken all
necessary measures to avoid any damage whatsoever.

§ Ifthecarrier proves thatitwas impossibleforhimor hisagents totakesuchmeasures to
avoid damage.

§ Inthecaseofcarriageofgoodsandluggagethecarriercannotbeliableifheprovesthat
the damage was caused due to the negligent pilotage or negligence in the handling of
the aircraft or in navigation yet in all other respects, he and his agents have taken all
necessary measures to avoid such damage.

§ Ifthedamagewascausedduetothenegligenceoftheinjuredpersonhimselfandthisis
proved by the carrier then the Court in accordance with the provisions of its own law,
exonerate the carrier wholly or partly from his liability. However the carrier will not be
exempted from responsibility if it is evident that the damage was caused due to wilful
misconduct of the carrier itself or its authorized agents within the scope of his
employment.

§ If there is damage to goods or luggage then the person who is entitled to get its delivery
must complain to the carrier forthwith about it after the discovery of the damage and, at
the latest, within three days from the date of receipt in the case of luggage and seven
days from the date of receipt in the case of goods or else if the person receiving does
not complain it is prima facie evident that the same have been delivered in good
condition and in accordance with the document of carriage.

§ The person seeking restitution in case of delay must complaint at the latest within
fourteen days from the date on which the luggage or goods have been placed at his
disposal.

§ The right to damages shall be extinguished if an action is not brought within two years,
and this is calculated from the date of arrival at the destination, or from the date on
which the aircraft ought to have arrived, or from the date on which the carriage
stopped. This method to calculate the period of limitation shall be determined by the
law of the Court which deals with the case.

§ Suchcomplaintsmustbemadeinwritinguponthedocumentofcarriageorbyseparate
notice inwriting despatchedwithinthe times aforesaidorelse no action shall lie against
the carrier.

k) JURISDICTION AND PROCEDURAL REQUIREMENTS:

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The jurisdiction and procedural requirements under the Warsaw Convention of 1929 are
as follows:

§ Any action for damages must be brought in the territory of one of the High Contracting
Parties, i.e.
i. either before the Court which has jurisdiction because the carrier is ordinarily its
resident, or has his principal place of business, or has an establishment by which
the contract has been made or
ii. before the Court that has jurisdiction as it is the place of destination. The action
must be brought before the necessary Court at the choice of the plaintiff.

§ The questions of procedure are to be governed by the law of the Court that takes up the
case.

§ In the event of death of an individual the action for damages will lie in accordance with
the terms of this Convention against those legally representing his estate.

§ If there have been various successive carriers and these fall within the definition under
the Convention then each of these carriers who accepts passengers, luggage or goods
are subjected to the rules set out in this Convention, and thereby are deemed to be one
of the contracting parties to the contract of carriage in so far as the contract deals with
that part of the carriage which is performed under his supervision.

§ Hence in case of multiple carriers the passenger or his representative can only take up
action against the carrier who performed the carriage during which the accident or the
delay occurred. (except in the case where, by express agreement, the first carrier has
assumed liability for the whole journey)

§ In case of goods and luggage the right of action for damage can be brought by the
passenger or consignor against the first carrier, and the passenger or consignee who is
entitled to the delivery of the goods and luggage will have a right of action against the
last carrier.

§ Beside the above point each of the passenger or consignormay take action against the
carrier who performed the carriage during which the destruction, loss, damage or delay
took place. Thus these carriers will be jointly and severally liable to the passenger or to
the consignor orconsignee.

§ In the case of combined carriage which has been performed partly by air and partly by
some other mode of carriage, the provisions of this Convention apply only to the
carriage by air, provided that it falls within the purview of the Convention.

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MONTREAL CONVENTION

a) SCOPE OF THE CONVENTION:

The Montreal Convention which is also known as the Convention for the Unification of
Certain Rules for International Carriage by Air is a multilateral treaty adopted in the
diplomatic meeting of ICAO member states in 1999 to amend many important provisions of
the Warsaw Convention's regime concerning compensation for the victims of air disasters.

It also attempted to re-establish the uniformity and predictability of rules relating to the
international carriage of passengers, baggage and cargo in accordance with the Warsaw
Convention of 1929.

This Convention extends to all international carriage of persons, baggage or cargo
performed by aircraft which also includes gratuitous carriage by aircrafts. The term
“international carriage” in this Convention means any carriage, the place of whose
departure and the place of its destination whether or not there be a break in the carriage or
a transhipment is situated either within the territories of two States Parties (the territories
of both parties are decided as per an agreement between both the parties) or within the
territory of a single State Party if there is an agreed stopping place within the territory of
another State, even if that State is not a State Party. The carriage between two points within
the territory of a single State Party without an agreed stopping place within the territory of
another State will not be considered as international carriage in accordance with this
Convention.

In the case of carriage being performed by several successive carriers it is deemed to
be one undivided carriage if it has been regarded by the parties as a single operation.
This could have been agreed upon under a single contract or of a series of contracts,
but because of this it will not lose its international character. This Convention also
applies also to carriage as set out in Chapter V, subject to the terms contained therein.

This Convention also concerns the carriage performed by the State or by legally
constituted public bodies provided it falls within the conditions laid down in Article 1 of
this Convention.

For the carriage of postal items, the carrier shall be liable only to the relevant postal
administration in accordance with the rules applicable to the relationship between the
carriers and the postal administrations.

Except as provided in paragraph 2 of this Article, the provisions of this Convention shall
not apply to the carriage of postal items.14

14 CONVENTION FOR THE UNIFICATION OF CERTAIN RULES FOR INTERNATIONAL CARRIAGE BY AIR
< https://www.iata.org/policy/consumer-pax-rights/Documents/mc99-full-text.pdf > (accessed on 6th April
2018)

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b) MEANING OF DOCUMENTATION:

Article 3 deals with issues related to documentation of Passengers and Baggage which
states that any individual or a collective document of carriage should be delivered
which must contain the places of departure and destination of the individual as well as
if the places of departure and destination were within the territory of a single State
Party along with the stopping places which are agreed upon. Any other means of
preserving the information of documents shall be followed by the carriage. For the
baggage the carrier must give the passenger an identification tag and the passenger
must be made known about the applicability of the convention in written format along
with the liability of carriers in respect of death or injury and for destruction or loss of,
or damage to, baggage, and for delay. The passenger must oblige to its contents
because non-compliance does not render the contract of carriage invalid.

Article 4 states that in respect of the carriage of cargo, an air waybill must be delivered and
in case of other means if so requested by the consignor, a carrier must deliver to the
consignor a cargo receipt permitting the identification of the consignment and access to the
information contained in the record preserved by such other means.

Article 5 deals with contents on a cargo receipt or the airway bill which must contain the
places of departure and destination and if these are within the territory of a single State
Party, an indication of at least one such stopping place for cases of multiple stopping places
must be mentioned as well as the weight of the consignment. The consignor must also meet
all the formalities of customs, police and similar public authorities, and if needed must
deliver the documents stating the nature of the cargo as per Article 6.

In accordance with Article 7 an air waybill must be made out by the consignor in three
original parts with the first part marked for the carrier and signed by the consignor while the
secondpartwillbefortheconsigneewiththesignatureofthecarrierand consignorandthis
sign can be printed or stamped and the third part shall be signed by the carrier who shall
hand it to the consignor after the cargo has been accepted.

As perArticle 8 whenever there is more than one package the carrier ofcargo has the right
to make separate airway bills and also the consignor has a right to deliver separate cargo
receipts as per paragraph 2 of Article 4.

The airway bill is the prima facie evidence of conclusion of a contract and the acceptance of
the cargo of all the necessary conditions mentioned therein. It also includes the weight,
height, dimensions and packing of the cargo.

c) BASIS OF LIABILITY:

The most important liability is one that arises due to death and or bodily injury of the
passenger in which the carrier takes full responsibility in the case of embarking and
disembarking. It is also liable to the damage caused due to destruction and loss of any
baggage while on board or during any period within which the checked baggage was in the
charge of the carrier as per Article 17 of this convention. However, the carrier is not liable if
and to the extent that the damage resulted from the inherent defect, quality or vice of the

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baggage. In the case of unchecked baggage, including personal items, the carrier is liable if
thedamageresultedfromitsfaultorthatofitsservantsoragents. Thepassengerisentitled
to enforce against the carrier the rights of the contract of carriage if the carrier admits to
the loss of the checked baggage, or if the checked baggage has not arrived at the expiration
of twenty-one days after the date on which it should to have arrived

The carrier is liable for damage sustained in the event of the destruction or loss of or
damage to, cargo provided that the event which caused such damage took place during the
carriage by air and not due to the defect or inferior quality of the cargo itself as per Article
18 of theconvention.

Even in case of delay which leads to damage of the passengers, baggage or cargo the carrier
is liable. But if the carrier shall not be liable for damage occasioned by delay if it proves that
it and its servants and agents took all measures that could reasonably be required to avoid
the damage or that it was impossible for it or them to take such measures.

d) MEANING OF THE TERM CARRIER AND AGENT:

The term “Carrier” means the carriage which transports the passengers and cargo via air
while the term “Agent” means all the authorities that are associated with the carriage and
are therefore liable for the activities of the carriage which falls within the purview of their
employment.

e) MEANING OF THE TERM ACCIDENT:

The Montreal Convention of 1999 made inessential changes in the language of Article
17.The carrier is liable for damage sustained in case of death or bodily injury of a passenger
upon condition only that the accident which caused the death or injury took place on board
the aircraft or in the course of any of the operations of embarking or disembarking. The
phrase “or wounding of a passenger” was not carried forward into Montreal Convention of
1999 but the phrase “bodily injury” was retained in Montreal Convention. Hence,
irrespective of whether the Warsaw or Montreal Convention applies, the basic requirements
for recovery are virtually identical, and the past jurisprudence based upon the Warsaw
system remains relevant.

Article 17 imposes liability upon the carrier if the plaintiff proves:
(1) An accident (2) caused (3) death or bodily injury, (4) while the passenger was on board
the aircraft or was in the course of embarking or disembarking
This article addresses two of those issues:
(1) What is contemplated by the term “accident”; and
(2) What is meant by “bodily injury” (i.e., what damages are recoverable under these
Conventions).15
Case Laws: (1) Meliniak v El Al Israeli Airlines (CF 26952-10-14).

(2) El Al v Noam David (CM (Nazareth) 1818/03).

15 ACCIDENTS & INJURIES IN AIR LAW: THE CLASH OF THE TITANS by Paul Stephen Dempsey
< https://www.mcgill.ca/iasl/files/iasl/Titans.pdf >

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f) PROCESS OF EMBARKATION AND DISEMBARKATION:

The act of embarkation or disembarkation forms an important part of the Warsaw as well as
Montreal Convention. This is mainly related to legal issues regarding liability for accidents
which arise inaircrafts.
Embarkation is the process of loading a passenger ship or an airplane with passengers or
military personnel and also involves the stationing of passengers in accommodation (cabins)
by staff and crew members while disembarking is the act of leaving a carriage or airplane
after its journey.
Generally liability for an accident prior to embarkation or boarding, such as during a security
check is considered to not be part of the embarkation process.
An air carrier is responsible of the passengers while they embark or disembark in a flight.
Any accident during this process gives rise to liability of the air carrier itself.

g) DAMAGES THAT CAN BECOMPENSATED:

Compensation is provided by the Air Carrier in the case of death or injury of passengers. The
air carriers are strictly liable for proven damages up to 100,000.00 special drawing
rights (SDR),for each passenger and they cannot escape such liability but if the carrier
provesthattheaccidentwhichcausedtheinjury ordeathwasnotduetotheirnegligence or
their agents negligence but was solely due to the negligence of a third party this defence is
not available.

The Montreal Convention was brought about mainly to amend liabilities to be paid to
families for death or injury whilst on board an aircraft.

In the case of damage caused by delay an air carrier is liable up to 4150 SDR while the
liability of the carrier in the case of destruction, loss, damage or delay of baggage is limited
to1,000SDRforeach passengerbutinthe carriageof cargo,theliabilityofthe carrier inthe
case of destruction, loss, damage or delay is limited to a sum of 17 Special Drawing Rights
per kilogram, unless the consignor has made a special declaration of the total sum of cargo.
In that case the carrier will be liable to pay a sum not exceeding the declared sum while in
the case of destruction, loss, damage or delay of part of the cargo, or of any object
contained therein, the weight to be taken into consideration in determining the amount to
which the carrier's liability is limited shall be only the total weight of the package or
packages concerned.

Unfortunately the Convention refuses to pay any compensation for psychiatric injury or
damage unless inextricably linked to the physical injury.

h) ADVANCE PAYABLE BY AIRLINES TO MEET IMMEDIATE ECONOMIC NEED:

An aircraft must make advance payments without any delay in the case of aircraft accidents
resulting in death or injury of passengers, to a natural person or persons who are entitled to
such claim of compensation in order to meet the immediate economic needs of such
persons. The carrier is to do so if required by its national law. But such advance payments

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shall not constitute a recognition of liability and may be offset against any amounts
subsequently paid as damages by the carrier.

i) CLAIMS AGAINST THIRD PARTIES:
The air carrier shall not be liable in case of any acts that are done by the negligence of the
passenger himself or by any third party. Hence the passenger cannot claim any damages
from them.

j) MEANING OF THE TERM DELAY, BAGGAGE AND CARGO:
Delay means lapse in a stipulated time period. In the case of air crafts delay in flight means
loss of time due to which damage may have occurred to the passenger travelling by the
aforesaid air carrier.
Baggage means both checked baggage and unchecked baggage of an air passenger while
cargo is the goods that are shipped via aircrafts. As per Montreal Convention an aircraft
shall be liable in the case of damage to baggage or cargo as well as any delay.

k) JURISDICTION OF THE MONTREAL CONVENTION:

Article 33 of the Convention deals with Jurisdiction. As per this Article:

a) “Any action for damages must be brought, at the option of the plaintiff, in the
territory of one of the States Parties, either before the court of the domicile of the
carrier or of its principal place of business, or where it has a place of business
through which the contract has been made or before the court at the place of
destination.

b) In respect of damage resulting from the death or injury of a passenger, an action
may be brought before one of the courts mentioned in paragraph 1 of this Article, or
in the territory of a State Party in which at the time of the accident the passenger
has his or her principal and permanent residence and to or from which the carrier
operates services for the carriage of passengers by air, either on its own aircraft or
on another carrier's aircraft pursuant to a commercial agreement, and in which that
carrier conducts its business of carriage of passengers by air from premises leased or
owned by the carrier itself or by another carrier with which it has a commercial
agreement.

c) For the purposes of paragraph 2,
(a) “Commercial agreement” means an agreement, other than an agency agreement,
made between carriers and relating to the provision of their joint services for
carriage of passengers by air;
(b) “Principal and permanent residence” means the one fixed and permanent abode
of the passenger at the time of the accident. The nationality of the passenger shall
not be the determining factor in this regard.

d) Questions of procedure shall be governed by the law of the court seized of the
case.16 “

l) PROCEDURAL REQUIREMENTS:

16 Montreal Convention 1999 < https://www.iata.org/policy/Documents/MC99_en.pdf >

15

A Receipt by the person entitled to delivery of checked baggage or cargo without complaint
is prima facie evidence that the same has been delivered in good condition and in
accordance with the document of carriage but if there is damage, the person entitled to
delivery must complain to the carrier forthwith after the discovery of the damage, and, at
the latest, within seven days from the date of receipt in the case of checked baggage and
fourteen days from the date of receipt in the case of cargo. In the case of delay, the
complaint must be made at the latest within twenty-one days from the date on which the
baggage or cargo have been placed at his or her disposal and every complaint must be made
in writing and given or dispatched within the times aforesaid because if no complaint is
made within the times aforesaid, no action shall lie against the carrier, except in the case of
fraud on its part as per Article 31 of the Convention.
In accordance with the provisions of Article 34, the parties to the contract of carriage for
cargo may stipulate that any dispute relating to the liability of the carrier under this
Convention shall be settled by arbitration and such agreement shall be in writing.
Meanwhilethearbitrationproceedingsshall,attheoptionofthe claimant,takeplacewithin
one of the jurisdictions referred to in Article 33.
The arbitrator or arbitration tribunal must apply to the provisions of this Convention and the
provisions of paragraphs 2 and 3 of this Article shall be deemed to be part of every
arbitration clause or agreement, and any term of such clause or agreement which is
inconsistent therewith shall be null and void.17

m) CODE SHARING, SUCCESSIVE CARRIAGE AND OTHER ARRANGEMENTS BETWEEN
CARRIERS:

Code Sharing means an agreement which is made between two or more airlines to list
certain flights in a reservation system under each other's names. Successive carrier means
when there is passage by air via various aircrafts simultaneously. In such a case the
passenger or any person entitled to compensation in respect of him or her can take action
only against the carrier who performed the carriage during which the respective accident or
the delay occurred, except when by an express agreement, the first carrier has assumed
liability for the whole journey by itself.

In the case of baggage or cargo, the passenger or consignor will have a right of action
against the first carrier, and the passenger or consignee who is entitled to delivery will have
a right of action against the last carrier, and further, each may take action against the carrier
which performed the carriage during which the destruction, loss, damage or delay took
place.Thesecarrierswillbejointlyandseverallyliabletothepassengerortothe consignor
or consignee as per Article 36 of the Montreal Convention.

n) INSURANCE:

Article 50 deals with the concept of Insurance. As per this the State Parties shall require
their carriers to maintain adequate insurance covering their liability under this Convention.

17 Montreal Convention 1999 < https://www.iata.org/policy/Documents/MC99_en.pdf >

16

GUADALAJARA CONVENTION1961:

a) MEANING OF THE TERMCARRIER:

The Guadalajara Convention 1961 was a supplementary to the Warsaw Convention of 1929
and the Protocol to Amend the Convention for the Unification of Certain Rules Relating to
International Carriage which was held in Hague in October 1955.It was noticed that the
previousconventiondid not containthe particularrules relatingtointernational carriageby
air performed by a person who is not a party to the agreement for carriage, the Convention
for CONVENTION SUPPLEMENTARY TO THE WARSAW CONVENTION FOR THE
UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR
PERFORMED BY A PERSON OTHER THAN THE CONTRACTING CARRIER was held in 1961 at
Guadalajara which was entered into force on 1 May 1964 and has been adopted by 84
States.

The Convention aims to cover such arrangements as leasing, chartering, code-sharing and
interlining; commercial practices which has become important since the Warsaw
Convention that was developed in the late 1920s.This Convention also divided the term
carrier into two categories namely “contracting carrier” and “actual carrier”.

A “contracting carrier” is person who as the principal can make agreements for the carriages
which are governed by the Warsaw Convention with a passenger or consignor or with a
person acting on behalf of the passenger or consignor meanwhile an “actual carrier” is
someone other than the contracting carrier, who, by virtue of the authority from the
contracting carrier, performs the whole or part of the carriage but he does not fall within
the meaning of successive carrier. The "actual" carrier, however, is not a party to the
contract of carriage with the consignor.

b) DIFFERENCE BETWEEN CONTRACTING CARRIER AND ACTUAL CARRIER:

One of the most essential features of the Guadalajara Convention of 1961 was that it
distinguishes between the actual and contracting carrier.

A "contracting" carrier is a person who can primarily make an agreement for carriage which
is governed by the international air conventions with a consignor or with a person acting on
his behalf; while an "actual" carrier is another person who "performs the whole or part of
the carriage" contemplated by the agreement between the "contracting" carrier and the
consignor by virtue of authority from the “contracting” carrier. Such authority shall be
presumed in the absence of proof to the contrary. However an actual carrier does not
include “successive carriers” which occurs when carriage is undertaken by two or more
carriers, "regarded by the parties as a single operation" but agreed either in the form of a
single contract or under a series of contracts.

The "actual" carrier is liable only for the part of the carriage which he performs and the
"contracting" carrier is liable for the entire carriage contemplated in the contract.
Therefore, if the damage to the cargo occurred during the part of the carriage performed by
the "actual" carrier, the claimant may sue the "actual" and/or the "contracting" carriers,

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either jointly or separately. Thus, the "contracting" carrier cannot decline liability on the
basis that the damage occurred during the part of the carriage performed by the "actual"
carrier.

c) DISTRIBUTION OF LIABILITY:

In respect of the liability of the "actual" carrier, the Guadalajara Convention of 1961
provides that if the "actual" carrier performs the whole or part of the carriage, both the
"actual" and "contracting" carriers are liable. This means that at the option of the plaintiff
the actual or contracting carrier can be sued jointly as well as separately if the damage to
the cargo occurred during the part of the carriage performed by the "actual" carrier because
an actual carrier is liable for the part of the carriage which he performs and the
"contracting" carrier is liable for the entire carriage.

If the claimant sues only one carrier, that carrier is entitled to require the other carrier to be
joinedintheproceedings,theprocedure andeffects inaccordance withthe lawofthe court
seised of the case. Thus, the "contracting" carrier cannot decline liability on the basis that
the damage occurred during the part of the carriage performed by the "actual" carrier. As
between themselves, the "actual" and "contracting" carriers may agree as to their
respective rights and obligations, including the right of recourse or indemnification.

Further, the limit of liability under the international air conventions applies to each one of
them individually and to their respective servants and agents acting within the scope of
their employment. This means that the acts and omissions of the actual carrier and of his
servants and agents acting within the scope of their employment shall, in relation to the
carriage performed by the actual carrier, be deemed to be also those of the contracting
carrier and the acts and omissions of the contracting carrier and of his servants and agents
acting within the scope of their employment shall, in relation to the carriage performed by
the actual carrier, be deemed to be also those of the actual carrier.18

As per the Warsaw Convention of 1929 no such act or omission shall subject the actual
carrier to liability exceeding the limits specified in its Article 22. Any special agreement
under which the contracting carrier assumes obligations not imposed by the Warsaw
Convention or any waiver of rights conferred by that Convention or any special declaration
of interest in delivery at destination contemplated in Article 22 of the said Convention, shall
not affect the actual carrier unless agreed to by him. 19In case of complaints it shall be given
same effect as it was in Warsaw Convention 1929 whether addressed to the contracting
carrier or to the actual carrier except the orders referred to Article 12 of the Warsaw
Convention which is directed to the contracting carrier specifically.

18 CONVENTION SUPPLEMENTARY TO THE WARSAW CONVENTION FOR THE UNIFICATION OF CERTAIN RULES
RELATING TO INTERNATIONAL CARRIAGE BY AIR PERFORMED BY A PERSON OTHER THAN THE CONTRACTING
CARRIER, SIGNED IN GUADALAJARA, ON 18 SEPTEMBER 1961 (GUADALAJARA CONVENTION 1961)
< https://www.mcgill.ca/iasl/files/iasl/guadalajara1961.pdf > (accessed on 25th March 2018)
19 CONVENTION SUPPLEMENTARY TO THE WARSAW CONVENTION FOR THE UNIFICATION OF CERTAIN RULES
RELATING TO INTERNATIONAL CARRIAGE BY AIR PERFORMED BY A PERSON OTHER THAN THE CONTRACTING
CARRIER, SIGNED IN GUADALAJARA, ON 18 SEPTEMBER 1961 (GUADALAJARA CONVENTION 1961)
< https://www.mcgill.ca/iasl/files/iasl/guadalajara1961.pdf > (accessed on 25th March 2018)

18

Moreover, the aggregate damages awarded against the "actual" carrier, "contracting"
carrier, or their servants and agents must not exceed the highest amount that the claimant
would recover by suing either the "actual" carrier or the "contracting" carrier. Even though
the "actual" and "contracting" carriers are accountable for each other’s acts and omissions
(and that of their respective servants or agents), in respect of the part of the carriage
performed by the "actual" carrier still an "actual" carrier is not accountable for any potential
"wilful misconduct" or "recklessness" on the part of the "contracting" carrier and would
therefore not lose the right to monetary limitation of liability.20

20 CARRIAGE OF GOODS BY AIR: A GUIDE TO THE INTERNATIONAL LEGAL FRAMEWORK
< http://unctad.org/en/Docs/sdtetlb20061_en.pdf > (accessed on 25th March 2018)

19