1. Convention for the Unification of Certain Rules Relating to International Carriage by Air, Warsaw, 1929 (U.K.T.S. 11 (1933) Cmd 4284).Google Scholar The Convention was drawn up solely in French. English translations used here are from the Carriage by Air Acts 1932 and 1961, unless otherwise indicated. “The Warsaw Convention” is used to describe the whole system wherever the context makes this appropriate. “The unamended Convention” refers to the original version. “The Warsaw–Hague Convention” refers to the amended text resulting from “the Hague Protocol” (Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Warsaw 1929, The Hague, 1955 (U.K.T.S. 62 (1967) Cmnd 3356)).Google Scholar The Hague Protocol entered into force on 1 Aug. 1963.

2. See e.g. Part. 1 of The Aviation Quarterly (“T.A.Q.”) 1996–1997Google Scholar and the entire Vol.I of 1997 Annals of Air & Space Law (“A.A.S.L.”)Google Scholar, which are devoted to articles on the Warsaw Convention. The journal Air & Space Law (formerly Air Law) regularly publishes articles on this and related topics.

3. These matters are, however, considered by Caplan, H., “Modernisation of the Warsaw system: a Protocol or a new Convention?” [1996–1997] T.A.Q. 132–138.Google Scholar Arguing for a new protocol, Caplan considers that the present system is basically sound, as well as widely accepted; that a protocol introducing amendments which may be effective for some States only does not present real problems; and that desired changes can be fully accommodated within the existing framework with appropriate amendments. For contrary arguments, see below passim.

4. 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, Guadalajara, 1961 (U.K.T.S. 23 (1964) Cmnd 2354).Google Scholar

5. See infra Part. III.

6. The five Protocols after that of The Hague (see supra n.1) are the Guatemala City Protocol 1971, and the four Protocols of Montreal, 1975. Additional Protocols 1 and 2 of 1975 entered into force in 1996. Their texts are set out in English in Shawcross, and Beaumont, , Air Law (loose-leaf) (Ed. Martin, P.), Vol.2, App.A. A composite version of the substantive provisions of Montreal Protocols 3 and 4 is included in Sched.1 to the Carriage by Air and Road Act 1979, but these provisions have not been brought into force.Google Scholar

7. Decisions of courts are considered in the text below. The views of publicists are indicated infra n.24.

8. On the significance of treaty relations and final clauses in a similar context, see also Gardiner, R. K., “Air Law's Fog: The Application of International and English Law” (1990) 43 C.L.P. 159, 162–175.Google Scholar

9. Art.1(2). Amendments to this provision introduced by the Hague Protocol are not material to the issues considered here; but the scope of application of the amended treaty is defined by Art.XVIII of the Protocol; see infra text to n.20.

10. Ibid.

11. Art.XIX of the Hague Protocol states: “As between the Parties to this Protocol, the Convention and the Protocol shall be read and interpreted together as one single instrument and shall be known as the Warsaw Convention as amended at The Hague, 1955.”

12. Arts.XXI(2) and XXIII(2) of the Hague Protocol.

13. The clearest analysis of these conflicts, with the relevant obligations shown in an explicit table, was made by Bin, Cheng, “The Law of ‘International’ and ‘Non-International’ Carriage by Air (Part. II)” (1963) L.S.Gaz. 444, 450–453.Google Scholar

14. Art.28 of the Warsaw Convention requires the plaintiff to choose whether to bring an action in a court having jurisdiction where the carrier is domiciled, has its principal place of business or has an establishment through which the contract was made or before a court having jurisdiction at the place of destination.

15. See Caplan, op. cit. supra n.3.

16. See infra Parts. III and IV.

17. See Re Korean Air Lines Disaster of September 1, 1983 (1987) 829 F.2d 1171Google Scholar(US CA for the District of Columbia) on appeal from the US District Court (1985) 664 F.Supp. 1463.Google Scholar The applicability of the Convention was considered at first instance in the US courts and set out in a “Memorandum”. The Memorandum was endorsed wholesale by the Court of Appeals and reprinted in its judgment as handed down, though not in the Federal Report. The issue was not the subject of the case when it went to the US Supreme Court. The Korean Supreme Court considered the same issue of treaty applicability in a case concerning a different claim: see below.

18. Passengers had different contracts according to their Particular travel plans; but this simple one-way travel example illustrates the treaty problems.

19. See Art.1(2).

20. Art.XVIII of the Hague Protocol (emphasis added).

21. 664 F.Supp., supra n.17, at p.1469.Google Scholar For more detailed analysis of this see Gardiner, R. K., “Carriage by Air in the US Court of Appeals” [1988] L.M.C.L.Q. 151.Google Scholar

22. See infra text to n.52.

23. See Gardiner, , op. cit supra n.21, referring to Hyosung (America) Inc. v. Japan Air Lines Co. Ltd and Flying Tigers (1985) 19 Aviation Cases (CCH) 18,034 (US DC, S.D.N.Y).Google Scholar The judge in Hyosung disregarded the view of the State Department on the basis that “there is no indication that the Executive has considered the line of reasoning articulated by Article 40 of the Vienna Convention”. However, Art.40(5) of the Vienna Convention, on which the judge relied, covers the case of “any state which becomes a Party to the treaty after the entry into force of the amending agreement”. This distinguishes between the “treaty” and the “amending agreement”. A State which becomes a Party to the “original” treaty after an amendment has come into force is considered, according to Art.40, a Party to both the original and amended treaties (unless a different intention is established). The converse (the position of a State becoming a Party to the amending instrument when it has never indicated an intention to become a Party to the unamended treaty) is not covered, probably because if that is the intended compulsory outcome it can be so provided in the amending instrument. As is explained in the text above, the Hague Protocol makes clear provision for separation of the amended and unamended regimes. These exclude any implication that it is necessary for a State to be a Party to both treaties if it is to be a Party to the Protocol.

24. The same reversal of meaning Is reflected in academic studies. In The Warsaw Convention Annotated: A Legal Handbook Goldhirsch, L. B. writes (p.12)Google Scholar: “If a country adheres to the Hague Protocol but is not a signatory to the original Warsaw Convention, it automatically becomes an adherent of the Warsaw Convention (Hague, Art XXI and XXIII).” In Warsaw Convention (1992 and Supps.)Google Scholar, Giemuller, , Schmid and Ellers state (p.24, para.28)Google Scholar: “From Articles XVIII, XXI(2) and XXIII(2) HP, it can be concluded that the original version of the Convention is not only applicable between states Parties to the Convention itself, but also if one of the states concerned is a contracting Party to the Warsaw Convention of 1929, and the other is a contracting Party to the Hague Protocol. Articles XXIII(2) and XXI (2) HP indeed provide that adherence to or ratification of the Hague Protocol results in adherence to the Convention/HP.” For a statement in similar vein, see also Mankiewicz, R. H.. The Liability Regime of the International Air Carrier (1981), chap.1, para.2.Google Scholar

25. See Re Korean Air Lines, supra n.17.

26. See Tae, Hee Lee, “The Current Status of the Warsaw Convention and Subsequent Protocols in Leading Asian Countries” (1986) XI Air Law 242, 243.Google Scholar

27. Ibid.

28. It appears from an informal translation of the judgment of the Korean Supreme Court on 22 July 1986 in Hyundai Marine & Fire Insurance & others v. Korean Air Lines that the Court quoted Arts.XIX and XXIII(2) of the Hague Protocol but nevertheless reached the conclusion described above.

29. When cases arising from the Korean Air Lines disaster eventually went to trial in the US, the jury found there to have been wilful misconduct so that the Warsaw limits on compensation did not apply. Dempsey, , “Pennies from Heaven” (1997) XXII–I A-A.S.L. 267, 274–275Google Scholar, notes that nearly 10 years after the crash only 10 of the 105 cases had proceeded to trial, while 34 had been settled. In those cases where the Convention was not in law applicable, much time and effort appear to have been misspent.

30. Similar difficulties have been met in attempts to amend other multilateral treaties. One example is the International Convention for the Protection of Industrial Property, signed at Paris in 1883, which established a “Union” of States accepting obligations affecting their laws on intellectual property. The earliest amendments, when the number of Participating States was small, entered into force only when ratified by all members of the Union. Later, however, revisions of the Paris Convention entered into force once a specified number of States had ratified the new instrument (described as a new “Act” of the Union). States which did not denounce the earlier versions of the treaty were therefore bound by conflicting obligations. As seems to have been the case with the Warsaw Convention, provided the later treaty afforded better protection, those remaining Party to an earlier version of the Paris Convention were unlikely to complain. In simple terms they got something for nothing, not having assumed the more onerous obligations themselves. The idea of a “Union” of States, bound by uniform rules resulting from treaty relations, was, however, shot to pieces. Ingenious explanations took on a distinctly theological complexion, such as that there remained a “Union in successive Acts”, but failed to convince as they defy proper analysis of treaty relations. In the case of the Paris Union, this problem defeated the revision attempted in the 1980s as one proposal was to allow certain States to accord a lesser protection than previously guaranteed to members of the Union. States which were not prepared to accept this would no longer accept application of a later Act of the Union to which they were not Party.

31. See supra n.6.

32. Art.XX. Such traffic was to be calculated according to statistics published by the International Civil Aviation Organisation (ICAO).

33. ICAO Doc. LC/30 Drafting Group Report 9 May 1997.

34. See infra text to n.52.

35. See supra n.4. The Guadalajara Convention supplements both the unamended Convention and the Warsaw–Hague Convention. Accordingly, throughout Part. II of this article the term “Warsaw Convention” refers to both versions unless otherwise indicated.

36. Art.1(b).

37. Art.1(c).

38. In this context there has been extensive debate over the respective roles of the law of contract on the one hand and the law of tort or delict on the other as the matrix for the Warsaw Convention. Art.24 refers to “any action for damages, however founded” (emphasis added). Thus the Convention makes it plain that it supplies a set of rules, or a regime, rather than inserting itself either exclusively into contract law or exclusively into tort.

39. See “Charter and Interchange of Aircraft and the Warsaw Convention. A Study of Problems arising from the National Application of Conventions for the Unification of Private Law” (1961) 10 I.C.L.Q. 707.Google Scholar

40. idem, p.710.

41. Art.3(2) of the unamended Convention.

42. Op. cit. supra n.39, at p.720.Google Scholar

43. Some support for a broad interpretation can, however, be found in the account of the Brazilian proposal (not adopted) for a definition of “carrier”. See Horner, and Legrez, (Eds), Warsaw Conference on Private Aeronautical Law (translated record of 1929 proceedings), pp.143–144 and 182.Google Scholar See abo the provision in Art.1 of the Warsaw Convention on gratuitous carriage: idem, p.135.

44. Op. cit. supra n.24, at pp.6–7, emphasis added. Mankiewicz gives supporting references.Google Scholar

45. Mankiewicz, , op. cit. supra n.39, at pp.707–725.Google Scholar

46. idem, p.714, n.27. See also Mankiewicz's endorsement of this approach: idem, p.717.

47. See Arts.3(2) and 7 of the Guadalajara Convention.

48. See the Records of the Guadalajara Conference, 1961, which seta out an example by the US delegate making his view clear (Seventh Meeting, p.61).Google Scholar

49. The provisions relevant here (Part III of this article) are identical in both versions. Hence, throughout this Part the term “Warsaw Convention” refers to both versions, unless otherwise indicated.

50. Arts.32 and 23.

51. Art.22 of the unamended Convention.

52. For the text see Shawcross, and Beaumont, , op. cit. supra n.6, at Vol.2.Google Scholar

53. The US has made acceptance of the Montreal Agreement mandatory for all carriers, in the case of foreign carriers flying to the US by making acceptance a prerequisite for a permit.

54. See Poonoosamy, , “The Warsaw Web” (1997) XXII–I A.A.S.L. 209, 211.Google Scholar

55. See Cocoa v. THY, reported in translation following a note by Guerreri in (1985) X Air Law 294.Google Scholar

56. Law No.274 of 7 July 1988.Google Scholar For a more detailed account see Pizzino, A., “Warsaw Liability System and Italian Case Law: An Update on Recent Developments” (1997) XXII–I A.A.S.L. 306, 314–316, where the “dubious legality” of Law No.274 under the law of treaties is acknowledged.Google Scholar

57. This raises issues more in the province of the right to provide air transport, e.g. under the bilateral Air Services Agreements governing scheduled air services. Special contracts, foreseen as arrangements made by Particular passengers with individual airlines, were plainly not envisaged at Warsaw in 1929 as a means of increasing limits of liability for carriage affecting a Particular country. However, though a State clearly acts inconsistently with its international obligations if it unilaterally suspends limits of liability for carriage to which the Warsaw Convention applies, for a State to impose special contracts on carriers of its own nationality is within its legitimate sphere of regulation (unlike the case of foreign carriers) and would not appear inconsistent with the Warsaw Convention.

58. See Shawcross, and Beaumont, , op. cit. supra n.6, at App.AB for the text of IATA's “Intercarrier Agreement on Passenger Liability” of 30/31 Oct 1995.Google Scholar This Agreement was given detailed effect by an “Agreement on Measures to Implement the IATA Intercarrier Agreement” (idem). In the US a further “Implementing Provisions Agreement” has been approved (text at App. to Harakas, A. J., “The Status of the Warsaw Convention etc.” [1996–1997] T.A.Q. 115, 122).Google Scholar The history of these instruments, with analysis and commentary, is given in Martin, P., “The 1995 IATA Intercarrier Agreement” and “The 1995 IATA Intercarrier Agreement: An Update” (1996) XXI Air & Space Law 17 and 126Google Scholar, respectively, Dempsey, op. cit. supra n.29 and in extensive periodical literature.

59. “Unqualified” is used here as a neutral term. For analysis of the terms “strict” and “absolute” liability in the context of the Warsaw Convention, see Bin, Cheng, “A Reply to Charges of Having inter alia Misused the Term Absolute Liability etc” (1981) VI A.A.S.L. 3.Google Scholar

60. Lists of Participants in the components of the KL package are given in Shawcross and Beaumont, op. cit. supra n.6.

61. These matters are not explored here as they do not affect the issues of treaty relations and treaty amendment, though the EU may be expected to take a position on draft provisions of the revised Warsaw Convention reflecting its internal law. (For the four jurisdictions, see supra n.14.) Commentary can be found in Balfour, J., “Some Comments on the EC Commission's Proposal for a Regulation on Air Carrier Liability” (1997) XXII–I A.A.S.L. 83.Google Scholar

62. See Balfour, J., “Electronic Ticketing: A Bonfire of Verbiage?” [1996–1997] T.A.Q. 89, 100.Google Scholar

63. See supra n.14.

64. See Art.32 of the Warsaw Convention.

65. See Arts.17–19 of the unamended Convention and the Warsaw–Hague Convention.

66. See supra n.33.

67. The core questions are listed in the penultimate para, of the introductory Part of this article.

68. Art.41 of the Warsaw Convention provides for a diplomatic conference to be called to consider proposals for improvements to the Convention. This gave no bint of how any such improvements were to be brought about within the regime. Cf. contrasting treaty arrangements: Art.94(b) of the Convention on International Civil Aviation, Chicago, 1944 empowers the ICAO Assembly to decide that in appropriate cases any State which has not ratified an amendment within a specified period after its entry into force shall cease to be a member of the organisation and a Party to the Convention; the same treaty con tains in Art.38 a procedure by which any State which does not implement an amendment to international standards adopted under the Convention must inform the Council of the ICAO of what action it proposes to take in the matter and the Council disseminates that information. Such examples (which could be multiplied from many different fields) of different approaches to reconciling the principle of content of States to treaty obligations with the needs of uniformity show that these objectives can be achieved only by including such provisions in the unamended instrument.