Warsaw Convention: Liability in the carriage by air

HISTORY

The French government, in 1923, came up with the idea of holding a diplomatic conference to enact national laws pertaining to in the . While doing so, they realized that there has to be the unification of laws at an international level to prevent unforeseeable conflicts, especially in the jurisdiction. But because of reluctance on the part of governments of various nations the conference had to be cancelled on twice as they did not wish to convene without an established and concrete .

The International Conference on Air Law was held at Paris between 27th October to 6th November 1925, creating history as the first convention specifying the liability in the by air. They drafted a convention, to be presented at the conference,  which was decided to be studied by legal experts, namely, International Technical Committee of Legal Experts on Air Questions. This Committee continued its duties until the conclusion of the conference. The main aim of the Committee in its various and numerous sessions was to prepare a draft convention to unify the air laws.

The same was presented at the Second International Convention on Private Air Law held at Warsaw Castle between the 4th and 12th October 1929. This was formally titled as Convention for Unification of certain Rules relating to International Carriage by Air on 12th October 1929. It was the first international treaty that addressed claims relating to property and persons arising from air carriage. It aimed to create a new commercial industry by establishing strict limits for liabilities for air carriers. It was brought into force on 13th February 1933 and has since been adopted by 151 States.

Warsaw Convention: Liability in the carriage by air

The Applicability of the

As per Article 1, the treaty is applicable to “all international carriage of persons, luggage or goods, performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.” This convention excludes international air performed for the purpose of-

  • Experimental trial by air navigation undertakings with a view to establishing air navigation and routes;
  • The carriage of persons, luggage or goods outside the scope of normal carriage, for extraordinary circumstances.

The issues at which the provisions of the Warsaw Convention are directed are-

  • Regulations regarding liabilities of air carriers in cases of loss, damage, delay, death, or injury caused by an accident, with regards to passengers as well as baggage and cargo; on international flights. It aims at the creation of a penalty for non-compliance with particulars to be mentioned in the documents of carriage; with the carrier losing the monetary cap limiting his liability.
  • Achieving uniformity of the rules that govern claims relating to international air transportation with a view to avoiding conflict of law.
  • Setting rules such that the claimant would not be required to prove the carrier’s fault, or that of his agents, with respect to any incurred losses.
  • Fixing monetary cap limiting air carrier’s liability and defining the circumstances in which the benefit of the monetary cap limiting liability would be lost by the carrier.
  • Limiting the liability of the carrier in order to facilitate the growth of the commercial industry at the nascent stage.
  • Laying down requirements and formats of air transport documents, luggage and passenger tickets, and air consignment notes, and specifying their contents.
  • Laying down the procedure for restitution and claims, however; specifying that they must be initiated within two years of the date of arrival of the carrier to the destination or from the date on which the carriage stopped, the lapsing of which would lead to forfeiture of rights to damages. The time period is to be determined by the Court of Law of the case as per Article 29 subsections 1 and 2 of the convention.
Warsaw Convention: Liability in the carriage by air

The convention formulated an all-encompassing system of liabilities to lay down a comprehensive mechanism of remedies for injuries suffered during the course of international transportation of persons, baggage, or goods performed by aircraft. Such a system was formulated in order to protect air carriers against catastrophic and crippling liability by establishing monetary caps on awards and establishing restrictions on the types of claims that may be brought against carriers.

No liability to compensation can be established, and no alternate remedy is stipulated, in the case of the suffering of personal injury while onboard an aircraft, during other such operations, or during embarkation or disembarkation which does not come under the purview of the convention.

‘Accident’ under the Convention

Article 17 of the Convention defines ‘accident’ as “the carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other suffered by a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” The plaintiff is required to prove the following-

The accident caused either death or bodily injury while the passenger was on board or was in the course of embarking or disembarking. In this case, the liability will rest upon the carrier.

Warsaw Convention: Liability in the carriage by air

In the case of Olympic Airways vs. Hussain, an ‘accident’ as under the convention, is well illustrated. Dr Hanson, who was allergic to second-hand smoke, and his wife, Rubina Hussain, were to travel by an Olympic Airways Flight 417, wherein they requested to be shifted to a seat further away from the smoking seats, in the area where non-smoking seats were situated. However, due to the denial of the same, Dr Hanson died due to inhalation of smoke during the course of the flight. A suit was filed by Rubina Hussain in a California federal district court seeking damages. Citing the statute, the court recognized the incident as an ‘accident’ and awarded $1.4 million to Rubina Hussain.   

‘Bodily Injury’ under the Convention

As interpreted by the US Supreme Court in Eastern Airline vs. Floyd, it was held that recovery under Article 17 of the Warsaw Convention requires either death or bodily injury and that it is insufficient to merely establish mental distress, to receive compensation under Article 17. Due to the failure of three engines, Eastern Airlines headed from Miami, was expected to plunge into the Atlantic ocean, however, due to the miraculous revival of the engines, it safely landed. However, the passengers sued the airline for the mental trauma they underwent, wherein the court denied their entitlement to damages due to a lack of physical manifestation of injury.

The Liability of the Carrier under the ‘Warsaw System’

Jurisdiction and Forums

The convention mentions four courts for submitting claims(Art.28):—

  1. The court having jurisdiction at the place where the carrier is ordinarily resident (court of domicile);
  2. The court having jurisdiction at that place where the carrier has his principal place of business;
  • The court having jurisdiction at the place where the carrier maintains an establishment through which the contract has been made; and
  • The court having jurisdiction at the place of destination
Warsaw Convention: Liability in the carriage by air

Defences that can be extended by the Carrier under the Warsaw Convention

The carrier is not held liable if:

  • All necessary precautions and measures were taken by the carrier and his agents to avoid damage under all circumstances whatsoever;
  • If it is proven by the carrier that it was impossible to take any such measures so as to avoid the damage that was incurred;
  • If it can be proven that the negligence was in the pilotage or handling of the aircraft, or in navigation;
  • If the damage was due to the negligence of the injured person himself, the carrier will be exonerated partly or wholly from liability;
  • A complaint pertaining to the suffering of delay must be placed within fourteen days of such a delay of carriage of luggage;
  • This right would be forfeited if a limitation period of 2 years, calculated from the date of arrival at the destination or from the date of scheduled arrival, is crossed.

Recoverable Damages

As the foremost responsibility, it is required that the carrier take the utmost care of the passengers for the duration of travel. Aeroplanes can be held financially responsible or liable as per Chapter III of the convention, for injuries caused by even the slightest carelessness or negligence on the part of the carrier. The airline is liable to pay damages in the case of death or bodily injury during the process of embarking, disembarking, or onboard air carriage. The plaintiff is required to prove the occurrence of the accident and it is assumed that it occurred due to the fault of the air carrier. The monetary limits of the damages awardable against an international airline were set at a sum of 125,000 gold franc by Article 22 of the Convention. The passenger is provided with the opportunity to recover more in case willful misconduct on the part of the carrier is proven. The carrier may escape such liability if it is proven that all precautions were taken by his employees and him to prevent damages. Article 19 stipulates the liability for damages incurred due to delay in the carriage of passengers, luggage or goods by air. Also, the payment of damages for any registered luggage or goods while in the care of the air carrier is mentioned in Articles 18 and 22 of the convention.

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