Introduction
Any Carrier be it by air or ocean is responsible for the people and goods it carries. They are held liable for any damage, delay and loss of cargo which they are carrying unless the reason is act of God. The carrier holds a certain amount of liability for these goods he is carrying if they end up damaged and lost. This is known as the Carriers Limit of Liability.
There is an international law in place that provides minimum liability limits for the carriage of cargo and passengers in the event of damage, delay, loss of goods and injury and death of passengers. Warsaw Convention (1929) was the first international law in this direction. Over the years the Warsaw Convention[1] underwent many changes and amendments and also some countries did not ratify it completely but introduced certain laws only. All these amendments together were called the Warsaw system and it was replaced in 1999 by the Montreal Convention titled the Convention for the Unification of Certain Rules for International Carriage by Air. It is the accepted international law and rules relating to the international carriage of passengers, luggage and cargo.
Warsaw Convention
It is an international convention which standardizes the liability for international carriage of persons, luggage and goods performed by aircraft.
Chapter III of the Warsaw Convention deals with the Carrier’s Liability.
Some of the salient features are:
1. Article 17: When a passenger is on board the flight and he dies, suffers a wound or any other bodily injury. If the accident which caused the death/injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking, the carrier is liable.
In the case in Eastern Airline vs. Floyd, the passengers sued the airline for the mental trauma they underwent for recovery from the airline under Article 17 of the Warsaw Convention, when Due to the failure of three engines, Eastern Airlines headed from Miami, was expected to plunge into the Atlantic Ocean. However, the flight and all passengers on board landed safely due to the miraculous revival of the engines. The US Supreme court held in the case that recovery under Article 17 of the Warsaw Convention requires either death or bodily injury and that it is not sufficient to merely establish mental distress, to receive compensation under Article 17.
2. Article 18: In case of damage /destruction/loss or damage to registered luggage or any goods due to some occurrence during the carriage by air, the carrier is liable for the damage. By carriage of air, it means the duration for which the luggage or goods are in charge of the carrier. The period of carriage by air doesn’t include carriage by land, by sea or by river undertaken outside an aerodrome.
3. Article 19: If there is any damage caused by a delay in the carriage of air passengers’ luggage or goods then the carrier is liable but there is no liability if they prove that they had taken all necessary steps to avoid the damage and even in case of negligent pilotage and navigation of the aircraft.
4. Article 21: The carrier by the court will be exonerated either wholly or partly from his liability if he proves that the damage is caused or contributed by the negligence of an injured person.
5. Article 22: Passenger carriage liability per passenger is limited to the sum of 125,000 francs but by special contract, both the carrier and the passenger may agree to a higher limit of liability. The carries liability is limited to a sum of 250 francs per kilogram in the carriage of registered luggage and of goods unless there is a special declaration of the value at delivery and the passenger has paid an additional sum of money. The sum of money. The relive of carrier’s liability of a lower limit shall be null and void, but it is not nullity of the whole contract.
6. Article 25: If the damage is caused by the wilful misconduct of the carrier it is not entitled to avail the provision of the convention which limits or excludes his liability. The same rule is applied to the agent of the carrier who was acting within the scope of his employment.
7. Article 26: If the carrier provides a receipt for the goods or luggage delivered without complaint then that is itself proof that the goods have been delivered in good condition along with the documents of the carriage. If the complaint is not filled within the time period allotted then no action can be taken against the carrier except in the case of fraud on his part.
The Montreal Convention
The Montreal Convention was adopted in a diplomatic meeting of ICAO in 1999 which is a multilateral treaty. It amended the important provisions of the Warsaw Convention. It re-establishes uniformity in rules relating to the international carriage of passengers, baggage and cargo. While keeping the core provisions intact, the new treaty achieves modernization in many key areas. The two-tier system removes the necessity of proving willful neglect by the air carrier to obtain more than US$1,75,000[2] in damages. This reduces long-drawn-out litigation[3] and protects passengers.
It is applicable to all international carriage of persons, baggage or cargo performed by aircraft for reward. It equally applies to gratuitous carriage by aircraft performed by an air transport undertaking. This Convention applies to carriage which is given in Chapter V of the Montreal Convention.
Damages
The air carriers under the Montreal Convention, are strictly liable for damages if proven up to 128,821.00 special drawing rights (SDR), it is a mix of currency values established by the IMF which is roughly US$175,000. Where there are damages of more than 128,821.00 SDR, the airline may avoid liability by proving that the accident causing the injury or death was not due to their negligence but the negligence of a third party[4]. This defense is not available where the damages are less than 128,821.00 SDR. The Convention also made amendments to the jurisdictional provisions of Warsaw which allows the victim or families to sue foreign carriers where they have their principal residence, this in turn requires air carriers to carry liability insurance.
The Montreal Convention mainly amended the liabilities to be paid to families for death or injury while onboard an aircraft.
No compensation purely for psychiatric injury
The Convention did not say anything about compensation for psychiatric injury or damage unless there was any link to it to a physical injury. The term “bodily injury” is defined in Article 17 of the convention which sets out the liability of the carrier for accidents. The compensation is not given to people with Purely psychiatric injury is not eligible for compensation which has been criticized by people injured in plane accidents, legal experts and their families.
Lost baggage
The Montreal Convention has increased the maximum liability of airlines for lost baggage to a fixed amount of 1,131 SDR per passenger. The airlines have to fully compensate for the traveler’s cost of replacement of items purchased until their baggage is delivered.
Disabled passengers and mobility equipment
The limitation of compensation for damage to baggage is 1,131 SDRs. Its value of damaged mobility equipment generally exceeds the available compensation under the Montreal Convention. It is more so with disabled passengers.
While for non-disabled people the major issue is the loss of baggage, but for disabled people, the problem tends to be physical damage to wheelchairs and other durable medical equipment due to inappropriate storage in the hold. Even a basic wheelchair may cost twice the available compensation, with a three-month lead time for a replacement.
Ratifications
As of September 2018, there were 133 parties ratifying the Convention.
Concept of risk
Under Article 18 of Montreal Protocol no. 4 the carrier could only exonerate himself from liability if he could prove that the damage had been caused by one of the four specific causes described in the Convention those are
- inherent defect
- quality or vice of the cargo
- defective packing
- an act of war/armed conflict or an act done by public authority relating to entry and exit of cargo
It resulted in an additional wrongful act being committed on part of the carrier which can be divided uniformly among the parties. This makes the position of the carrier improve extensively from being liable.
Claiming damages
Article 29 of the Montreal Convention determines that all types of damage imaginable fall under this Article. But it does not help any further in determining whether the recovery of consequential damages is possible. Moreover, the convention indicated that this matter was to be decided by the ICAO’s Legal Committee when they drafted the Convention but still dint come to any conclusion regarding this issue.
Conclusion
It has been almost 90 years of efforts on the part of aviation trade associations and various governmental authorities throughout the world which have still not resolved widespread criticism of the Warsaw Convention’s liability limits. The judicial attempts have further compromised the dual goals of uniform liability limits and systematic legal procedures of coping up with the complexities of international aviation.
Although the Montreal Convention was a big success politically, economically and legally. The drafters of the Montreal Convention missed the opportunity to clear up some important issues like the interpretation of the term damage, the question who can sue under the Convention and the issue of exclusivity.
[1] The official name is the International Convention for the Unification of Certain Rules Relating to International Transportation by Air. The Convention itself is the work of the International Technical Committee of Aerial Legal Experts (C. I. T. ti.J. A.) created at the International Conference on Private Air Law held in Paris, October and November 1925. This committee proceeded to draft a convention on the liability of carriers In air transport, which was adopted at the Second International Conference on Private Air Law held at Warsaw in October 1929. The Convention became effective as to the United States on October 29, 1934.
The revised translation of the complete text appears In Dept. of State Treaty Information Bulletin No. 54, pp. 17-33 (March, 1934); 5 JOURNAL OF AIR LAW 486 (1934); 1933 U. S. Av. Reports 302.
[2] https://www.icao.int/secretariat/legal/Pages/2019 Revised Limits of Liability under the Montreal Convention 1999.aspx
[3] A 73-Year Odyssey-The time has come for a new International Air Liability System
[4] IATA- The Montreal Convention 1999(Article 22)
This Article is Authored by Ashutosh Singh, 4th Year, BA.LLB(H) Student at Amity Law College, Amity University, Kolkata.
Also Read – The Warsaw And Montreal Convention: Carrier’s Liability & Passenger’s Protection
