¹ ICAO Doc. 893a. See 10 International Legal Materials 613–16 (1971).

² The conference was attended by the following states: Argentina, Australia, Barbados, Belgium, Brazil, Bulgaria, Byelorussian S.S.R., Canada, Republic of China, Colombia, People’s Republic of Congo, Costa Rica, Czechoslovakia (Socialist Republic of), Denmark, Dominican Republic, Ecuador, El Salvador, Finland, France, Federal Republic of Germany, Greece, Guatemala, Holy See, Honduras, India, Indonesia, Ireland, Israel, Italy, Jamaica, Japan, the Republic of Korea, Mexico, Kingdom of the Netherlands, New Zealand, Nicaragua, Nigeria, Norway, Peru, Poland, Portugal, Spain, Sweden, Switzerland, United Republic of Tanzania, Thailand, Trinidad and Tobago, Uganda, Ukrainian S.S.R., Union of Soviet Socialist Republics, United Kingdom, United States of America, Venezuela, Yugoslavia and Zambia. International organizations represented at the conference were the International Air Transport Association and the International Institute for the Unification of Private Law (UNIDROIT). The conference did most of its work in a Commission of the Whole which held thirty meetings. There were also twelve plenary meetings of the conference, meetings seven to eleven, the most critical ones, being held from Thursday, March 4 to Saturday, March 6 during which period the final reading of the Protocol, including the difficult Final Clauses, took place. Decisions in the Commission of the Whole required only a simple majority of votes cast, while those in plenary meetings required a two-thirds majority of votes cast. See, in regard to the latter requirement, the Vienna Convention on the Law of Treaties, Article 9 (2) : “The adoption of the text of a treaty at an international conference takes place by the vote of two-thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule.” It is against this background of voting requirements that it is necessary to view the discussions, set forth below, of what transpired in the Commission of the Whole. That body was in reality a testing ground where it could be ascertained whether a proposal could hope to secure the two-thirds majority in the conference meeting in plenary session. The conference was scheduled for the period February 9 - March 8, 1971. In order that the reader may have a feeling for the sometimes dramatic sequence of events, when a meeting is mentioned the date thereof is indicated.

³ A description of these draft articles appears in FitzGerald, Gerald F., “The Revision of the Warsaw Convention,” (1970) 8 Canadian Yearbook of International Law 284–306.Google Scholar

⁴ For the earlier history of the revision of the Warsaw Convention between 1965 and 1967, see notes by the same author on the revision of the Warsaw Convention in (1966) 4 Canadian Yearbook of International Law 194–215 and (1968) 6 Canadian Yearbook of International Law 188–211. See also, in respect of the period 1965–1970, Beaubois, H., “Attitudes Taken with regard to Amendments to the Warsaw Convention,” in Study of Institut du transport aérien, No. 1970/8-E, at 45 Google Scholar, 13 (also published under French title “Les prises de position au regard des amendements à la Convention de Varsovie”). For basic ICAO documentation on the revision of the Warsaw Convention since 1965, see Doc. 8584-LC/154-1-2 Special ICAO Meeting on Limits for Passengers under the Warsaw Convention and the Hague Protocol, Montreal, 1–15 February 1966, Volume I - Minutes xxix, 162, Volume II - Documents iii, 245; Doc. 8839 - LC/158-1 and LC/158-2 Subcommittee of the Legal Committee on the Question of the Revision of the Warsaw Convention as Amended by the Hague Protocol, Volume I - Reports and Documentation 324 and Volume II - Documentation 231. Doc. 8839 - LC/158-2 contains two reports of a Panel of Experts which met prior to the subcommittee; Doc. 8878 - LC/162 Legal Committee, Seventeenth Session, Montreal, 9 February - 11 March 1970, Minutes and Documents Relating to the Question of the Revision of the Warsaw Convention of 1929 as Amended by the Hague Protocol of ¡955 and Other Matters x, 406.

⁵ See supra note 4.

⁶ The Warsaw system has been described in some detail in earlier notes in this Yearbook. Briefly, the original Warsaw Convention of 1929 provides for the presumed liability of the air carrier when, during international carriage by air, a passenger is killed or injured. The carrier may invoke the defences (i) that he and his agents had taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures and (ii) that there was contributory negligence of the victim. The carrier’s liability is limited in respect of a passenger to an amout of 125,000 gold francs ($8,300 US), for checked baggage and cargo 250 gold francs ($16.58 US) per kilogram and for any possessions which the passenger carries with him, 5,000 gold francs ($331.67 US). Under specified circumstances the carrier loses the benefit of the limits. The Hague Protocol of 1955 doubled the passenger limit to 250,000 gold francs ($16,600 US) and modified the circumstances under which the carrier would not enjoy limitation of his liability. For the text of the Warsaw Convention, see Schedule One to The Carriage by Air Act, R.S.C. 1970, c. C-14; 137 L.N.T.S. 11, No. 3145. For the text of the Hague Protocol, see Schedule Three to The Carriage by Air Act, R.S.C. 1970, c. C-14; 478 U.N.T.S. 371, No. 6943. As at July 1, 1971, 94 states were parties to the Warsaw Convention and 68 states were parties to the Hague Protocol. The Warsaw/Hague system is supplemented by 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, signed at Guadalajara on September 18, 1961, (ICAO Doc. 8181), 500 U.N.T.S. 31, No. 7305; on July 1, 1971, 34 states were parties to the Guadalajara Convention. Although Canada is a party to the Warsaw Convention and the Hague Protocol, it was not, on July 1, 1971, a party to the Guadalajara Convention.

⁷ W/H Doc. No. 12.

⁸ Ibid.

⁹ For the text adopted, see Guatemala City Protocol, Article IV (Article 17 (1)). For convenience the Guatemala City Protocol will, in footnotes, be referred to as “GC Protocol.” Articles in Roman numerals are those of the Protocol and those in Arabic numbers are of the Warsaw Convention as amended.

¹⁰ W/H Doc. No. 7.

¹¹ Doc. 8878-LC/162, op. cit. supra note 4, at 36.

¹² GC Protocol, Article IV (Article 17 (2)).

¹³ The Hague Protocol, Article XII (Article 23 (2)).

¹⁴ GC Protocol, Article IV (Article 17 (3)).

¹⁵ As in The Hague Protocol, Article XI (Article 22 (3)) which provides, as does the original Warsaw Convention, for a limit of 5,000 francs ($331.67 US).

¹⁶ Article 21 of the Montreal draft reads as follows:

“If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, the carrier shall be wholly or partly exonerated from his liability to such person. When by reason of the death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from his liability if he proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger.”

¹⁷ W/H Doc. No. 12.

¹⁸ Doc. 8878 - LC/162, op. cit. supra note 4, at 23.

¹⁹ W/H Doc. No. 28.

²⁰ W/H Doc. No. 14.

²¹ ICAO Doc. 7364; 310 U.N.T.S. 181; Schedule to the Foreign Aircraft Third Party Damage Act, R.S.C. 1970, c. F-28.

²² W/H Doc. No. 52.

²³ Doc. 8878 - LC/162, op. cit. supra note 4, at 382–84.

²⁴ W/H Doc. No. 25. The domestic supplement was first mentioned in the general statement of the United States delegation at the second plenary meeting, on 9 February.

²⁵ Artide 22 (I) (a) of the Montreal draft reads as follows:

“(a) In the carriage of persons the liability of the carrier for damage suffered in a case of death or personal injury is limited for each passenger to the sum of one million and five hundred thousand francs [about $100,000]. Where, in accordance with the law of the court seised of the case, damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed one million and five hundred thousand francs.”

²⁶ W/H Doc. No. 33.

²⁷ W/H Doc. No. 60.

²⁸ Artide 22(1) (b) of the Montreal draft reads as follows:

“(b) The sum mentioned in subparagraph (a) of this paragraph shall be increased every first of January starting in the year 197…. and ending in the year 198…. [on the first of January of each of the twelve years following the entry into force of this…] by an additional sum of thirty-eight thousand francs [about $2,500]. The applicable limit shall be that which, in accordance with this paragraph, is in effect on the date of the event which caused the death or injury.”

²⁹ W/H Doc. No. 33.

³⁰ These words were referred to the Drafting Committee.

³¹ These words were deleted by a vote of 27 to o, with 17 abstentions.

³² The text as thus amended was adopted, by a vote of 27 to 10, with 9 abstentions and referred to the Drafting Committee.

³³ “The supplement system will benefit only the nationals and permanent residents of that State and they will be the only ones required to contribute to the system. The benefits may be extended to passengers of other States who (passengers) would voluntarily contribute to the fund.”

³⁴ W/H Doc. No. 45.

³⁵ Ibid.

³⁶ W/H Doc. No. 48.

³⁷ W/H Doc. No. 65.

³⁸ W/H Doc. No. 67.

³⁹ W/H Doc. No. 64.

⁴⁰ This paragraph of the proposal is an adaptation of the first sentence of “Another New Article” found in the Montreal draft. But, as is indicated in paragraphs (b) and (c) of the joint proposal, the purposes for which the conferences are convened under the Montreal text have been changed to the single purpose of increasing the limit. For ease of reference “Another New Article” of the Montreal text is reproduced, thus:

“Without prejudice to the provisions of Article 41 of the Warsaw Convention a conference of the Parties to the present Convention shall be convened by … during the fifth and tenth years of the period established in paragraph 1 (b) of Article 22 of the present Convention. The first of these conferences shall examine whether to amend the arrangement established in the said paragraph in respect of the periodic increase. The second conference shall decide whether to continue the system of periodic increase beyond the period indicated in paragraph 1 (b) of Article 22.”

⁴¹ This provision is based on the second sentence of Article 22, paragraph I (b), of the Montreal draft.

⁴² W/H Doc. No. 59.

⁴³ W/H Doc. No. 30.

⁴⁴ GC Protocol, Article VI (Article 20 (1)).

⁴⁵ As to the hope of the Legal Committee that adequate information on the amount of the limit for delay would become available for the conference, see Doc. 8878-LC/162, op. cit. supra note 4, at 26.

⁴⁶ GC Protocol, Article VIII (Article 22 (1) (b)).

⁴⁷ GC Protocol, Article VIII (Article 22 (1) (c)).

⁴⁸ GC Protocol, Article VIII (Article 22 (1) (a)), first sentence, reads as follows: “In the carriage of persons the liability of the carrier is limited to the sum of one million five hundred thousand francs [$100,000] for the aggregate of claims, however founded, in respect of damage suffered as a result of the death or personal injury of each passenger.” (Emphasis and explanation in square brackets supplied).

⁴⁹ GC Protocol, Article VIII (Article 22 (1) (c)), reads as follows: “(c) In the carriage of baggage the liability of the carrier in the case of destruction, loss, damage, or delay is limited to fifteen thousand francs for each passenger.”

⁵⁰ GC Protocol, Article IX (Article 24 (2)).

⁵¹ The basic text was developed by a working group established by the conference at the fourteenth meeting of the Commission of the Whole (February 18). The report of this group (W/H Doc. No. 38) was considered at the nineteenth session of the Commission (February 23) when the provision put forward by the group was adopted by a vote of 45 in favour, none opposed, with two abstentions.

⁵² GC Protocol, Article II (Article 3)).

⁵³ W/H Doc. No. 53.

⁵⁴ GC Protocol, Article III (Article 4)).

⁵⁵ W/H Doc. No. 31.

⁵⁶ W/H Doc. No. 47.

⁵⁷ Montreal draft, Article 22(4). This was the fifth element of the New Zealand package included in the Montreal draft.

⁵⁸ GC Protocol, Article VIII (Article 22(3)).

⁵⁹ W/H Doc. No. 58.

⁶⁰ GC Protocol, Article XII (Article 28 (2)).

⁶¹ W/H Doc. No. 51.

⁶² W/H Doc. No. 50.

⁶³ GC Protocol, Article XIII (Article 30A). This is the exact wording of Article 10 of the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface (Rome, 1952).

⁶⁴ GC Protocol, Article XVI.

⁶⁵ For the report of the Legal Committee’s working group on this subject, see Doc. 8878 - LC/162, op. cit. supra note 4, at 385–88. For discussion of the report, see Doc. 8878 - LC/162, 231–33.

⁶⁶ W/H Doc. No. 43.

⁶⁷ W/H Doc. No. 37.

⁶⁸ W/H Doc. No. 49.

⁶⁹ W/H Doc. No. 69.

⁷⁰ GC Protocol, Article XVII.

⁷¹ See the Vienna Convention on the Law of Treaties (1969), Article 81.

⁷² GC Protocol, Article XVIII.

⁷³ Ibid., Article XIX (1).

⁷⁴ Ibid., Article XIX (2).

⁷⁵ Ibid., Artide XIX (3).

⁷⁶ Ibid., Artide XX (1).

⁷⁷ Idem.

⁷⁸ GC Protocol, Article XX (1), last sentence.

⁷⁹ Ibid., Article XX (2).

⁸⁰ Ibid., Article XXI.

⁸¹ Ibid., Article XXII (1) and (2).

⁸² Ibid., Article XXIV.

⁸³ Ibid., Artide XXII (3).

⁸⁴ Ibid., Artide XXIII (a).

⁸⁵ Ibid., Artide XXIII (1) (b).

⁸⁶ Ibid., Artide XXIII (2).

⁸⁷ See supra note 6 for more information concerning the Guadalajara Convention.

⁸⁸ Article 1 (b) of the Guadalajara Convention reads as follows: “‘contracting carrier’ means a person who as a principal makes an agreement for carriage governed by the Warsaw Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor.”

⁸⁹ GC Protocol, Article XXV.

⁹⁰ Ibid., Article XXVI.

⁹¹ See last clause.

⁹² The ICAO Legal Committee will have to face similar technological problems in revising the cargo provisions of the Warsaw Convention as Amended by the Hague Protocol. This subject is on the Committee’s work programme. See Doc. 8878 – LC/162, op. cit. supra note 4, at 15. For a useful report on the rules of liability in respect of cargo in the Warsaw Convention prepared by Dr. P. J. Swart (Netherlands), see Doc. 8839 – LG/t58-i Subcommittee of the Legal Committee on the Question of Revision of the Warsaw Convention as Amended by the Hague Protocol. Volume I – Reports and Documentation 229–35.