A Short Commentary on the Law Regarding International Carriage by Air

The law regarding the international carriage of passengers, their baggage and cargo may be said to largely fall under the Warsaw Convention of 1929 and its amendments.  More recently, the Montreal Convention, 1999 has been steadily gaining prominence as more and more states are ratifying it. One of the focal points of these conventions is to achieve a unification of the conflicting rules regarding air carriage in different legal regimes. If it were not for these conventions there would great confusion regarding what law would apply in case of a dispute. Another objective is to ensure that there is a balancing of interests of the carrier and the consumer. The conventions are also applied in domestic carriage by the voluntary adoption by member states although this is usually done with modifications.

The Warsaw Convention of 1929 was enacted with an objective to give the necessary support for the fledgling air industry to grow. Hence the Convention sought to give protection to the carriers in the form of a limited liability clause. This was one of the key factors that gave rise to disputes and unrest among states who felt that the limitation of liability imposed upon the carriers was inadequate. This was naturally followed by several amendments and protocols to the Warsaw Convention that sought to steadily increase the carriers liability imposed by the original Convention.

The Hague Protocol of 1955 to the Warsaw Convention made changes with regard to the liability of the carriers by doubling it to 250,000 francs. In addition, the “willful misconduct” provision of Article 25 was changed to a standard requiring intentional or reckless acts or omissions on the part of the carrier before a plaintiff can claim unlimited liability.

The multiplicity of laws made it difficult for consumers and carriers alike since a single state could potentially have to deal with several different types of rules when dealing with international transportation. This was because different countries were ratifying different versions of the Warsaw Convention. Thus it was obviously troublesome because most of the protocols and amendments had varying standpoints regarding liability clauses, jurisdiction etc.

The Montreal Convention of 1999 was thus an attempt to consolidate and modernize the existing Warsaw System. It is an initiative of the International Civil Aviation Organization (ICAO) aimed at replacing the Warsaw System and this convention has currently 87 member states as of Dec. 2009 which includes the USA, UK and the European Community. India is however not a signatory and is still part of the Warsaw Convention 1929 and the Hague Protocol, 1955.

The future of the Montreal Convention as a means of ushering in global uniformity is dependant on the fact that a sufficient number of countries must become signatories to it. The countries that become part of it must denounce the all previous agreements, both public and private. As long as the Warsaw System is still an option, the Montreal Convention of 1999 will only serve as another instrument that adds to the confusion in the complex system that already exists. Thus, it will simply be an added factor in the defeat of its own purposes.

As a replacement and consolidation of the Warsaw Convention and its amendments the Montreal Convention has brought about a lot of changes. The effect of which is that carriers provide passengers with practically absolute, unlimited, and assured liability in respect of death and injury, and consignors and consignees of cargo with a regime to which all sides have long been happily accustomed. It is however, yet to be seen whether the limitations on the liability will be adequate. It may be argued that a system without limitations may be preferable, but such a system may not offer much protection to the carrier although it is very passenger friendly.


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