The Warsaw System on air carriers liability
Unification of private air law of international carriage by air became a priority very early in the aviation history, as the first airlines capable to carry passengers, mail and freight were established very shortly after WWI. By 1923, the government of France attempted to adopt national laws relating to liability in the carriage by air and realized that the complex foreign elements of such issue called for unification of law on a wide international level to prevent the unforeseeable conflicts of law and conflicts of jurisdiction.
The governments of European countries, fearing a loss of the influence on the airlines, unofficially agreed on establishing of an international organization (formally independent from the League of Nations), that could develop an international convention on private international air law. Called at the initiative of the French Government, the First International Conference on Air Law, held in Paris from 27 October to 6 November 1925, adopted a preliminary draft of the agreement on responsibilities in the field of air transportation and decided to create the Comité International Technique d'Experts Juridiques Aériens (CITEJA), an organization of legal experts in charge of the continuation of the work of the Conference. This Committee held several sessions to draft a convention for consideration at the Second International Conference on Private Air Law held in the Royal Castle at Warsaw, Poland from 4 to 12 October 1929. Sixty-five delegates from thirty-three nations attended this Conference; the United States delegated only unofficial observers. Perhaps, the location of the Conference and the fact that it was independent of the League of Nations induced an important number of countries to send their Delegations to Warsaw.
Despite the efficient organization, the proceedings of the Conference lasted quite a long time. Delegates had a difficult task, since the rules on liability in the event of air disasters were different in various countries; some legal systems were based on the principle of liability tort (ex delicto), while the other on a contract basis (ex contractu). Delegates represented the countries with a legal system based both on the civil and customary law. Signed on 12 October 1929, the Warsaw Convention, formally entitled Convention for the Unification of Certain Rules Relating to International Carriage by Air, has evolved into one of the most important instruments of private international law.
The Warsaw Convention is an international convention which regulates liability, in the event of accident, for international carriage of persons, luggage or goods performed by aircraft for reward. It was the first comprehensive legal framework governing aviation at the international level, playing an essential role in supporting the development of the sector and establishing a set of principles, most of which are still effective and constitute the basis of modern aviation law.
This Convention mandates carriers to issue passenger tickets; requires carriers to issue baggage checks for checked luggage; creates a limitation period of 2 years within which a claim must be brought; and limits a carrier's liability (maximum of 125,000 francs for personal injury; 250 francs per kilogram for checked luggage and cargo; 5,000 francs for the hand luggage of a traveler). The sums limiting liability shall be deemed to refer to the French franc consisting of 65 milligrams gold of millesimal fineness 900, which may be converted into any national currency in round figures. The convention of 1929 came into force on 13 February 1933.
Over the years, several amending protocols, supplementary instruments, rules, and regulations have been added which, collectively with the original Convention, are called the Warsaw System.
After extensive studies in the Sub-Committees of the Legal Committee and of the Legal Committee itself, the ICAO council convened a Diplomatic Conference held from 6 to 28 September 1955 at The Hague at which the Warsaw Convention of 1929 was amended on 28 September 1955 by The Hague Protocol. The limit of liability with respect to persons had been doubled to 250,000 francs; in other respects, the Protocol made only minor adjustments or clarifications, and contributed to some simplifications of the documents of carriage. The Hague Protocol to the Warsaw Convention entered into force on 1 August 1963.
Formally entitled 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, a new convention was developed and signed at the Diplomatic Conference held from 29 August to 18 September 1961 at Guadalajara, Mexico, on 18 September 1961; it was necessitated by the modern modalities of transport when a person was not a party to the agreement for carriage. It entered into force on 1 May 1964.
Early in the 1960s, it became clear that the United States were not prepared to ratify The Hague Protocol of 1955 as they considered the liability limits for carriage of persons in the said Protocol too low. This led the United States on 18 October 1965 to announce its withdrawal from the 1929 convention, effective as of 15 May 1966; this was noticed as a serious crisis of the unification of private air law. The solution arose in the form of the Montreal Agreement of 1966 (also called CAB 1966, as it was accepted by the US Civil Aeronautics Board), signed on 13 May 1966 (just two days before the expiry date of the notice of denunciation) under the auspices of the International Air Transport Association (IATA). This is not a convention or a protocol, but an agreement between the American Civil Aeronautics Board (CAB) and the air carriers operating passenger transport with a stopping place in the USA. Pursuant to the Montreal Agreement the airline companies adjusted their conditions of carriage and set out that the liability limit with regard to death, wounding or other personal injury suffered by a passenger would be US$ 58,000 exclusive of legal costs and US$ 75,000 including legal costs. The United States revoked the withdrawal from the 1929 convention at the last minute.
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Guatemala City 9 February to 8 March 1971 Commemorative postmark Diplomatic Conference on the Revision of the Warsaw Convention
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Noting the interim solution of the above Agreement, ICAO had no alternative but to work on a permanent solution. An inter-governmental agreement addressing the limits of liability and profoundly modernizing the entire Warsaw Convention as amended by The Hague Protocol was reached, at the Diplomatic Conference held at Guatemala City from 9 February to 8 March 1971 attended by 55 States, with the adoption of the Guatemala Protocol signed on 8 March 1971. The Guatemala Protocol contained a number of controversial points: the liability limit for passenger claims was substantially increased and fixed limits were introduced (i.e. it is not possible to break the limits), the force majeure defence was removed in relation to passenger claims, and the fifth jurisdiction (i.e. the court of the place of residence of the passenger) was introduced. This Protocol never came into force.
Soon after the Guatemala Conference, attention was drawn to the uncompleted business with the problem of cargo. Another Diplomatic Conference on International Air Law was held in Montreal from 3 to 25 September 1975 under the auspices of ICAO. This resulted in the adoption of four Protocols (the Montreal Protocols of 1975) signed on 25 September 1975 amending the Warsaw Convention, and The Hague and Guatemala Protocols. These Protocols amended the increased liability limit found in the Guatemala Protocol, altered the monetary measurement from gold to Special Drawing Rights, and eliminated outdated documentary requirements with respect to the transport of cargo.
The International Air Transport Association (IATA) convened a worldwide Airline Liability Conference (ALC) in Washington, D.C., USA, from 19 to 23 June 1995. The report of the Conference proposed the establishment of two working groups to further study and prepare drafts for a proposed inter-carrier agreement, as follows: 1) To urgently assess and report on the cost impact on airlines of an enhanced liability package; 2) To further consider and report on appropriate and effective means to secure complete compensation for passengers, when required. The resulting IATA Inter-carrier Agreement on Passenger Liability (IIA) was unanimously endorsed on 31 October 1995 at the 51st Annual General Meeting (AGM) of IATA held at Kuala Lumpur, Malaysia from 30 to 31 October 1995; the airlines who signed this agreement would undertake to waive the liability limits and limit the force majeure defense in regard to passenger claims. The IATA Secretariat then initiated an intensive effort to elaborate acceptable provisions to implement the IIA. The IATA Agreement on Measures to Implement the Inter-carrier Agreement (MIA) was developed; the IATA Legal Working Group met at Montreal on 3 April 1996 and the MIA was opened for signature by the air carriers; it became effective on 1 April 1997.
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First pane of the exhibition held to commemorate the 85th anniversary of the Warsaw Convention. It shows a Fokker F.VIIb-3m manufactured in 1930 in Poland by Zakłady Mechaniczne Plage i Laśkiewicz; it was registered SP-ABK "Krysia" and acquired by LOT. |
The successive modifications of the 1929 Convention, coupled with increasing mobility of passengers and the globalization of the air transport industry, have resulted in a high level of complexity and fragmentation of the Warsaw System, and a corresponding loss of relevance for the travelling public and the air transport industry. The above developments finally led to the ICAO seeking to draw up a new convention to replace the Warsaw System. The ICAO Legal Committee, at its 30th Session held in Montreal from 28 April to 9 May 1997, approved the text of a draft Convention for modernizing the Warsaw System of air carrier liability, to be adopted later by a Diplomatic Conference.
The successive modifications to the Warsaw Convention, coupled with the increasing mobility of passengers and the globalization of the air transport industry, have resulted in a high level of complexity and fragmentation of the Warsaw System, and a corresponding loss of relevance for the travelling public, air carriers and the air transport industry. At the International Conference on Air Law held in Montréal from 10 to 28 May 1999, the new Montreal Convention, formally entitled Convention for the Unification of Certain Rules for International Carriage by Air, was signed on 28 May 1999. This new convention, intended to replace the above-described Warsaw System, came into force on 4 November 2003. The obvious innovation is that the Montreal Convention now presents a single legal instrument, instead of a patchwork provided under the antiquated Warsaw System (i.e. a collection of six different legal instruments). Some 525 participants from 121 Contracting States, one non-Contracting States and 11 international organizations took part in this historic three-week conference.
A major feature of the new legal instrument is the concept of unlimited liability. Whereas the Warsaw Convention set a limit of 125,000 Gold Francs in case of death or injury to passengers, the Montreal Convention introduces a two-tier system. The first tier includes strict liability up to 100,000 Special Drawing Rights (SDR), irrespective of a carrier’s fault. The second tier is based on presumption of fault of a carrier and has no limit of liability. The new Convention includes many other elements.
On 5 September 2003, the United States of America became the 30th Contracting State to ratify the Montreal Convention, which replaces the Warsaw Convention System on compensation in cases of international air accidents. Cameroon also deposited its instrument of ratification on the same day. The new Convention entered into force 60 days following the deposit of the 30th instrument of ratification with ICAO, i.e. on 4 November 2003.
On the 85th anniversary of the Warsaw Convention in 2014, a special celebratory event was held in the exact place where the Second International Conference on Private Air Law ended with the signature of the Warsaw Convention; this event was accompanied by an exhibition Warsaw Convention Environment in 1920, which was donated to ICAO. A few panes of this exhibition are displayed in the Conference Center in Montréal.
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Malaysia – October 1995 – 50th Anniversary and 51st Annual General Meeting (AGM) of IATA. The four stamps depict Malaysia Airlines' major destinations. The 30-sen se-tenant pair features a Malaysian background and the Asia/Australia/New Zealand destinations. The 50-sen se-tenant pair depicts Europe/Africa and the Americas. The IATA logo is prominently displayed in all four stamps.
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Montréal, CANADA - 10 to 28 May 1999 Commemorative cover - International Conference on Air Law Adoption of the Montreal Convention replacing the Warsaw System.
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Panes of the exhibition displayed in the Conference Center at Montréal commemorating the 85th anniversary of the Warsaw Convention (2014). |
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