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Published online by Cambridge University Press: 09 March 2016
The decision of the ICAO Council on April 1, 1968, to convene a meeting of an ICAO legal subcommittee on the revision of the Warsaw Convention is the latest in a series of moves to shore up this 40-year-old Convention which has been tottering on its foundation since late 1965-early 1966 when the United States of America threatened to denounce it. The purpose of this note is to examine briefly the main problems discussed in relation to the revision of the Warsaw Convention since the unsuccessful Special ICAO Meeting held in February 1966 to consider the Warsaw passenger limits, and to indicate the lines along which further exploration of these problems has been made.
1 This is the Convention for the Unification of Certain Rules relating to International Carriage by Air, opened for signature at Warsaw on October 12, 1929. For the text of the Convention, see Schedule One to The Carriage by Air Act, R.S.C. 1952, c. 45; 137 L.N.T.S. 11, No. 3145. Canada became a party to it with effect from September 8, 1947. The Convention provides for a rebuttable presumption of liability of the air carrier. The carrier’s liability is limited to an amount equivalent to approximately $8,300 U.S. in the case of death of, or injury to, a passenger in international carriage. The limit in respect of checked baggage is approximately $16.58 U.S. per kilogram and for any possessions which the passenger carries with him, approximately $331.67 U.S. Under certain circumstances the carrier loses the benefit of these limits. In 1955, a Protocol drawn up at the Hague amended the Convention so as, inter alia, to increase the limit per passenger to approximately $16,600 U.S. For the text of the Protocol, see Schedule to an Act to Amend the Carriage by Air Act, 12 Eliz. 2, c. 33 (Can. 1963) ; 478 U.N.T.S. 371, No. 6943. The Act entered into force on July 17, 1964.
2 For the story of events in late 1965 and early 1966, see FitzGerald, Gerald F., “Liability Rules in the International Carriage of Passengers by Air and the Notice of Denunciation of the Warsaw Convention by the United States of America,” (1966) 4 The Canadian Yearbook of International Law (Annuaire Canadien de Droit International) 194–215.Google Scholar
3 See Agreement CAB No. 18900 approved by the United States Civil Aeronautics Board, May 13, 1966. By early April 1968, 45 American carriers and 56 foreign carriers were parties to the Agreement.
4 Doc. 8610 C/966 Action of the Council, 56th Session (1966), 12–14, 31–32. Unless otherwise indicated, all references to documents are to ICAO documents.
5 PE-Warsaw Report-1 and PE-Warsaw Report-2. The latter report is found in (1967) 33 J. Air Law & Com. 689–95.
6 “Compensation for airline passenger death and injury. The future of the Warsaw Convention,” (1967) 71 J. Royal Aeronautical Soc. 501–10.
7 See (1967) 33 J. Air Law & Com. 519–688.
8 Some of the decisions of United States courts are discussed below.
9 See supra note 3.
10 For example, a flight from Denmark to Japan with a non-traffic stop in Alaska would come under the Agreement.
11 Throughout this note the expression “absolute liability” is used instead of “strict liability” even though, by its terms, the expression “absolute liability” would preclude defences. For an interesting discussion of these terms, see Goldie, L.F.E., “Liability for Damage and the Progessive Development of International Law,” (1965) 14 Int’l & Comp L.Q. 1189, 1200–18.CrossRefGoogle Scholar
12 This marks a change in United States government policy in regard to the inclusion of the rule of absolute liability in the Warsaw Convention. See IMCO (Inter-governmental Maritime Consultative Organization) Doc. LEG III/W.P. 1 Annex, 5–6, April 17, 1968, for United States views on this matter and also in regard to including the rule of absolute liability in the proposed IMCO pollution convention. See Lowenfeld, Andreas F. and Mendelsohn, Allan I., “The United States and the Warsaw Convention,” (1967) 80 Harv. L. Rev. 497, 558–61.CrossRefGoogle Scholar
13 PE-Warsaw Report-2, at 5–6.
14 Ibid., 6.
15 Idem. See also PE-Warsaw WP/7.
16 The rule of absolute liability is not yet widely accepted in transportation conventions except in those relating to nuclear damage: Convention on Civil Liability for Nuclear Damage (Vienna, 1963), Convention on Third Party Liability in the Field of Nuclear Energy (Paris, 1960), and Convention on Third Party Liability in the Field of Nuclear Ships (Brussels, 1962). (For texts of these Conventions, see IAEA Legal Series No. 4 (1966). In particular, in the aviation field, the rule of absolute liability has hitherto been found only in the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface (Rome, 1952). (For further details, see PE-Warsaw WP/7, paras. 3-7). The rule of absolute liability is found in a few national aviation laws on the carriage of persons by air and there it applies to cases not governed by the Warsaw Convention (Australia, Costa Rica, El Salvador, Honduras, India, Mexico, Nicaragua, Peru, Romania, Spain, USSR and Venezuela) (For further details, see PE-Warsaw WP/7, para. 8–8.1).
17 2 Montreal Proceedings, 58–59. In this note references to “ 1 Montreal Proceedings” and “2 Montreal Proceedings” are to ICAO Doc. 8584 LC/154–1 and 2 Special ICAO Meeting on Limits for Passengers under the Warsaw Convention and the Hague Protocol, Montreal, February 1–15, 1966, Vol. I – Minutes and Vol. II – Documents.
18 1 Montreal Proceedings, (xxi) – (xxv).
19 2 Montreal Proceedings, 228.
20 1 Montreal Proceedings, 90; Lowenfeld, Andreas F., and Mendelsohn, Allan I., “The United States and the Warsaw Convention,” (1967) 80 Harv. L. Rev. 497, 557.CrossRefGoogle Scholar
21 Ibid., 559. See also Lowenfeld, Andreas F., “The Warsaw Convention and the Washington Compromise. A View from America,” (1966) 70 J. Royal Aeronautical Soc. 1061, 1062.CrossRefGoogle Scholar
22 PE-Warsaw Report-1, at 2.
23 PE-Warsaw Report-2, at 6.
24 Ibid., 5.
25 Sand, Peter H., “Risk in the Air and the Myth of Fault,” (1967) 33 J. Air L. & Com. 594–602.Google Scholar
26 See comments of Swedish Representative in 1 Montreal Proceedings 90–91.
27 Onek, Joseph N., “The Montreal Agreement and Enterprise Liability,” (1967) 33 J. Air L. & Com. 603, 603 and 604Google Scholar; see also Swart, Peter J., “Prospects of Amendment of the Warsaw Convention,” ibid., 616, 621–22.Google Scholar
28 See remarks of Mr.Kreindler, Lee S. in “Compensation for airline passenger death and injury. The future of the Warsaw Convention,” (1967) 71 J. Royal Aeronautical Soc. 501, 507.Google Scholar Mr.Kreindler, develops his thesis against absolute liability in “A Plaintiff’s View of Montreal,” (1967) 35 J. Air L. & Co. 528–32.Google Scholar
29 See Kreindler, , (1967) 71 J. Royal Aeronautical Soc. 501, 507.Google Scholar For a contrary view on sabotage, see Lowenfeld, op. cit. supra note 21, at 1063.
30 Martin, John J., (1967) 33 J. Air L. & Com. 538, 540Google Scholar; see a similar comment made by the Working Group on the Interim Agreement in PE-Warsaw Report-1, at 9.
31 C-WP/4648.
32 1 Montreal Proceedings, (xxi) – (xxv).
33 2 Montreal Proceedings 228.
34 C-WP/4648.
35 2 Montreal Proceedings, 56–57.
36 Ibid., 228.
37 PE-Warsaw Report-1, at 3.
38 PE-Warsaw Report-2, at 4.
39 Idem.
40 An example of a “circular journey” would be : Montreal - London - Cairo - Bangkok - Tokyo - Vancouver - Montreal. For definition of expression “circular journey,” see IATA Glossary in (1953) IATA Bull., No. 17.
41 An example of an “open-jaw trip” would be: New York - Paris - Washington. For definition of expression “open-jaw trip,” see IATA Glossary in (1953) IATA Bull., No. 17.
42 PE-Warsaw Report-1, at 4.
43 Idem.
44 This currency unit is used in the International Convention for the Unification of Certain Rules relating to the Carriage of Passengers by Sea (Brussels, 1961 ), Article 6(1), and the Convention on the Liability of Operators of Nuclear Ships (Brussels, 1962), Article 111(4). Other liability conventions use various currencies. The International Convention Concerning the Carriage of Passengers and Luggage by Rail (Berne, 1961) provides in Article 56 that: “The amounts stated in francs in this Convention or the Annexes thereto shall be deemed to relate to the gold franc weighing 10/31 of a gramme and being of millesimal fineness 900.” The Convention on Third Party Liability in the Field of Nuclear Energy (Paris, 1960), Article 7, provides for payments in the units of account of the European Monetary Agreement of August 5, 1955, it being stipulated that the units of account referred to should be as valued at the date of the Convention. The Convention on Civil Liability for Nuclear Damage (Vienna, 1963) expresses the limitation of liability for the operator of the nuclear installation in United States dollars, having a gold value of $35 per one troy ounce of fine gold.
45 Drion, H., Limitation of Liabilities in International Air Law 183 (The Hague: 1954).CrossRefGoogle Scholar
46 For details concerning recent international currency problems, see “International Liquidity,” Bank of Montreal, Business Review, April 30, 1968, at 2.
47 PE-Warsaw Report-2, at 7.
48 Idem.
49 Warsaw Convention, Article 3(2).
50 Article 3(1) (c) of the Warsaw Convention as amended by the Hague Protocol.
51 Idem.
52 9 Avi. 18, 374, 370 F. 2d 508 cert, granted 36 USLW 3189.
53 10 Avi. 17, 651, 21 NY 2d 160 (NY Ct App).
54 See also Mertens v. The Flying Tiger Line, Inc., 9 Avi. 17, 475, 341 F. 2d 851 (2d Cir.) where it was held that delivery of a ticket to a military courier after he had boarded the aircraft and after the material he was accompanying had been loaded and, at the time of delivery, the aircraft was parked on the ramp almost ready to take off was not adequate delivery as required by Article 3(2) of the Warsaw Convention. The court noted that “the statement concerning the limitation of liability was printed in such a manner as to virtually be both unnoticeable and unreadable, especially in an aircraft about to take off” (9 Avi. 17, 479). See also Warren v. The Flying Tiger Line, Inc., 9 Avi. 17, 848, 352 F. 2d 494 (9th Cir.) where the handing of boarding passes to military personnel at the foot of the ramp before they entered the aircraft was held to be inadequate delivery. The court held that the print of the notice conditions was too small to constitute adequate notice to the passenger that the liability of the air carrier was governed by the Convention.
55 PE-Warsaw Report-1, at 4.
56 PE-Warsaw Report-2, at 3. In Annex 1 to this report the Panel included detailed views concerning notice (ibid., 9–10).
57 C-WP/4648.
58 For a Belgian decision, see Collet v. Sabena, (1958) 12 Revue française de droit aérien 41. For a French decision, see Emery v. Sabena, (1960) 23 Revue générale de l’air 379.
59 Horabin v. British Overseas Airways Corp., (1952) 2 All E.R. 1016 (Q.B.) ; (1952) U.S. Av. R. 549.
60 American Airlines, Inc. v. Ulen, 186 F. 2d 529, 533 (D.C. Cir. 1949); (1949) U.S. Av. R. 338.
61 Ritts v. American Overseas Airlines, (1949) U.S. Av. R. 65 (S.D.N.Y.).
62 Pekelis v. Transcontinental & Western Air Inc., 187 F. 2d 122 (2d Cir. 1951); (195O U.S. Av. R. 3–4.
63 Koninklijke Luchvaart Maatschappij N.V. KLM Royal Dutch Airlines Holland v. Tuller, 292 F. 2d 775 (D.C. Cir. 1961); (1961) U.S. Av. R. 181.
64 Goepp v. American Overseas Airlines, (1951) U.S. Av. R. 527 (N.Y. Sup. Ct. 1951), judgment modified but court’s charge approved, 281 App. Div. 105, 117 N.Y.S. 2d 276 (1952); (1951) U.S. Av. R. 527.
65 Froman v. Pan Am. Airways, Inc., (1953) U.S. & Can. Av. R. 1, 6 (N.Y. Sup. Ct. 1953).
66 Rashap v. American Airlines, (1955) U.S. & Can. Av. R. 593 (S.D.N.Y. 1955).
67 Grey v. American Airlines, 227 F. 2d 282 (2d Cir. 1955) ; (1955) U.S. Av. R. 626; (1956) U.S. Av. R. 140.
68 Berner v. British Commonwealth Pac. Airlines, Ltd., 346 F. 2d 532 (2d Cir. 1965); 9 Av. 17, 681. The foregoing is based largely on an excellent summary found in Strock, William, C., “Warsaw Convention – Article 25 – ‘Wilful Misconduct’,” (1966) 32 J. Air L. & Com. 291–96.Google Scholar However, another author includes Pekelis (supra note 62) among those cases in which courts gave a restrictive interpretation to Article 25. See Lacey, Frederick B., “Recent Developments in the Warsaw Convention,” (1967) 33 J. Air Law & Com. 385, 390–91.Google Scholar
69 ICAO Doc. 7364; (1958) 310 U.N.T.S. 181; Schedule to the Foreign Aircraft Third Party Damage Act, 3 & 4 Eliz. 2 (Can., 1955), c. 15; and (1952) J- Air L- & Com. 447.
70 PE-Warsaw Report-2, at 3.
71 C-WP/4648.
72 PE-Warsaw Report-2, at 5. See remarks of Alan Goodfellow in (1967) 71 J. Royal Aeronautical Soc. 503 : “The carrier should have rights of subrogation as in Article 10 of the 1952 Rome Convention. The original drafters of the Warsaw Convention could not foresee that the causes of accidents might often lie less with airlines than with Air Traffic Control, for example. Yet there were no express rights of subrogation.”
73 Warsaw Convention, Article 2 and the Hague Protocol, Article II.
74 See report of the IATA Legal Committee to the 23rd Annual General Meeting of IATA, ( 1967) 35 IATA Bull. No. 35, at 83.
75 UPU Doc. CE/C 6/GT 1-Doc. 24. A recent United Kingdom Order brings the international carriage of air mail within the Warsaw Convention (see Article 4(c) of the Carriage by Air Act (Application of Provisions) Order, 1967). See also Moukatafi v. BOAC, (1967) 1 Lloyd’s Rep. 396.
76 “New Frontiers of Air Law,” (1967) 19 External Affairs 521, 525.
77 (1967) IATA Bull., No. 35, at 82.
78 ICAO asked states to supply data on the economic aspects of the Warsaw Convention prior to the Special ICAO Meeting (1966), as well as prior to and after each of the two sessions of the Panel of Experts.
79 See Kreindler, L.S., “A Plaintiff’s View of Montreal,” (1967) 33 L. Air Law & Com. 528, 532.Google Scholar
80 For a discussion of some of the traffic documentation problems faced in the 1970’s, see Schneiderman, I., in IATA in the 1970s, at 50–51.Google Scholar
