Module 9

MODULE 9

CARRIERS LIABILITY UNDER WARSAW CONVENTION AND
MONTREAL CONVENTION

I. WARSAW CONVENTION

a) HISTORY AND LEGAL BACKGROUND:

After 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
Convention for the Unification of 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 came 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

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)

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:

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).

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

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.

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.

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

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

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;

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

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 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); and

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;

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; and

a statement that the carriage is subject to the rules relating to liability established by this
Convention. 4 5

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
carrier solely.

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)
6 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)

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 bodily injury.

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.

417. The decision of this case was based upon the judgement of Air France v. Saks7 (1985)
where 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

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)

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
disembarkation is just the opposite where one removes or unloads passengers from an air
carriage but under the Warsaw Convention defining the proper scope of embarkation and
disembarkation within the meaning of Article 17 has been a constant topic of controversy.

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

(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.

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)

One such prominent case that construed the meaning of “disembarking” as used in Article 17
was MacDonald v. Air Canada11 in 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, Inc.12
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.

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)
12 JOHN 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)

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.

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.

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.

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

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.

If the carrier proves that it was impossible for him or his agents to take such measures to
avoid damage.

In the case of carriage of goods and luggage the carrier cannot be liable if he proves that
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.

If the damage was caused due to the negligence of the injured person himself and this is
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.

Such complaints must be made in writing upon the document of carriage or by separate
notice in writing dispatched within the times aforesaid or else no action shall lie against the
carrier.

k) JURISDICTION AND PROCEDURAL REQUIREMENTS:

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 consignor may 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
or consignee.

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.

II. 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 trans-shipment is situated either within the
territories of two State 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)

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 second part
will be for the consignee with the signature of the carrier and consignor and this 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 per Article 8 whenever there is more than one package the carrier of cargo 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 baggage. In the case of unchecked baggage,
including personal items, the carrier is liable if the damage resulted from its fault or that of its
servants or agents. The passenger is entitled 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 the
Convention.

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 >

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 in aircrafts.

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 BE COMPENSATED:

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 proves that the accident
which caused the injury or death was not due to their negligence 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 to 1,000 SDR
for each passenger but in the carriage of cargo, the liability of the carrier in the 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 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

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

l) PROCEDURAL REQUIREMENTS:

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.

Meanwhile the arbitration proceedings shall, at the option of the claimant, take place within 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

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

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. These carriers will be
jointly and severally liable to the passenger or to the 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.

III. GUADALAJARA CONVENTION

a) MEANING OF THE TERM CARRIER:

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 previous
convention did not contain the particular rules relating to international carriage by air performed
by a person who is not a party to the agreement for carriage, the 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, 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
joined in the proceedings, the procedure and effects in accordance with the law of the 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

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)

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.19 In 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
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

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)
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)