Revising the law of carriage by air: Mechanisms in treaties and contract

International and Comparative Law Quarterly

Volumn 47, Issue 2, 1998, Pages 278-305

  Gardiner, Richard ^a  

^a UNIVERSITY COLLEGE LONDON   (United Kingdom)

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EID: 84920503293     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300061868     Document Type: Article

References (59)

1. Convention for the Unification of Certain Rules Relating to International Carriage by Air, Warsaw, 1929 (U.K.T.S. 11 (1933) Cmd 4284).
2. 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
3. (U.K.T.S. 62 (1967) Cmnd 3356)). The Hague Protocol entered into force on 1 Aug. 1963.
4. See e.g. Part 1 of 77k Aviation Quarterly (“T.A.Q.”) 1996–97 and the entire Vol.1 of 1997 Annals of Air & Space Law (“A.A.S.L.”), which are devoted to articles on the Warsaw Convention. The journal. Air A. Space Law (formerly Air Law) regularly publishes articles on this and related topics.
5. These matters are, however, considered by H. Caplan, “Modernisation of the Warsaw system: a Protocol or a new Convention?” [1996–1997] T.A.Q. 132–138. 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.
6. 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).
7. Sec infra Part III.
8. The five Protocols after that of The Hague (tee infra) are the Guatemala City Protocol 1971, and the four Protocols of Montreal 1975.
9. 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. P. Martin), 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.
10. Decisions of courts are considered in the text below. The views of publicists are indicated infra n.2A.
11. On the significance of treaty relations and final clauses in a similar context, see also R. K. Gardiner, “Air Law's Fog: The Application of International and English Law” (1990) 43 CLP. 159,162–175.
12. 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 to n.20.
13. infra
14. 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.
15. See Caplan, L.S.Gaz.
16. See infra Parts III and IV.
17. See Re Korean Air Lines Disaster of September 1,1983 (1987) 829 F.2d 1171
18. (US CA for the District of Columbia) on appeal from the US District Court (1985) 664 F.Supp. 1463. 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: sec below.
19. 664 F-Supp., F.Supp., at p.1469.
20. For more detailed analysis of this see R. K. Gardiner, “Carriage by Air in the US Court of Appeals” [1988] L.M.C.L.Q. 151.
21. See infra text to n.52.
22. See Gardiner, infra, 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). 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.
23. The same reversal of meaning is reflected in academic studies. In The Warsaw Convention Annotated: A Legal Handbook L.B. Goldhirsch writes (p.12): “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).”
24. In Warsaw Convention (1992 and Supps.), Giemuller, Schmid and Ellers state (p.24, para.28): “From Articles XVIII, XXI2) 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.”
25. For a statement in similar vein, see also R. H. Mankiew-icz. The Liability Regime of the International Air Carrier (1981), chap.l, para. 2.
26. See Re Korean Air Lines, The Liability Regime of the International Air Carrier.
27. See Tae Hee Lee, “The Current Status of the Warsaw Convention and Subsequent Protocols in Leading Asian Countries” (1986) XI Air Law 242,243.
28. Air Law
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, 274–275, 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. See A.A.S.L.
31. ICAO Doc LC/30 Drafting Group Report 9 May 1997.
32. See infra text to n.52.
33. See infra. 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.
34. 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.
35. Idem,p.710
36. Idem, at p.720.
37. Some tupport 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.
38. See also the provision in Art. l of the Warsaw Convention on gratuitous carriage: idem, p.135.
39. idem, at pp.6–7, emphasis added. Mankiewicz gives supporting references.
40. Mankiewicz, idem, at pp.707–725.
41. Idem, p.714, n.27.
42. See also Mankiewicz's endorsement of this approach: idem, p.717.
43. See the Records of the Guadalajara Conference, 1961, which sets out an example by the US delegate making his view clear (Seventh Meeting, p.61).
44. For the text see Shawcross and Beaumont, Seventh Meeting, at Vol.2.
45. See Poonoosamy, “The Warsaw Web” (1997) XXII-I A.A.S.L. 209,211.
46. See Cocia v. THY, reported in translation following a note by Guerreri in (1985) X Air Law 294.
47. Law No.274 of 7 July 1988. For a more detailed account see A. Pizzino, “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.
48. See Shawcross and Beaumont, A.A.S.L., at App.AB for the text of IATA's “Intercarrier Agreement on Passenger Liability” of 30/31 Oct 1995.
49. This Agreement was given detailed effect by an “Agreement on Measures to Implement the LATA Intercarrier Agreement” (idem).
50. In the US a further “Implementing Provisions Agreement” has been approved (text at App. to A. J. Harakas, “The Status of the Warsaw Convention etc.” [1996–1997] T.A.Q. 115,122).
51. The history of these instruments, with analysis and commentary, is given in P. Martin, “The 1995 LATA Intercarrier Agreement” and “The 1995 LATA Inter-carrier Agreement: An Update” (1996) XXI Air & Space Law 17 and 126
52. respectively, Dempsey, Air & Space Law and in extensive periodical literature.
53. “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.
54. Lists of participants in the components of the KL package are given in Shawcross and Beaumont, A.A.S.L.
55. 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 A.A.S.L.)
56. Commentary can be found in J. Balfour, “Some Comments on the EC Commission's Proposal for a Regulation on Air Carrier Liability” (1997) XXII-I A.A.S.L. 83.
57. See J. Balfour, “Electronic Ticketing: A Bonfire of Verbiage?” [1996–1997] T.A.Q. 89, 100.
58. See T.A.Q.
59. See T.A.Q.