International Transportation of Goods by Air - Contract and Liability under the Warsaw Convention

Table of Contents

Table of Literature and Sources

Table of Cases

Table of Abbrevations

A. Introduction

B. Sources of Law
I. International Conventions and their Amendemnts
1. The Warsaw Convention of 1929
2. The Hague Protocol of 1955
3. The Guadalajara Convention of 1961
4. The Montreal Protocols 1-4 of 1975
II. European Community Law
III. Intercarrier Agreements
IV. Municipal Law

C. The Contract of Carriage by Air
I. The Nature of the Contract
II. The Contractual Parties
1. The Carrier
a.) The Contracting Carrier
b.) The Performing or Actual Carrier
c.) Combined Transportation
2. Air Cargo Intermediaries
3. Consignor and Consignee
III. The Air Waybill
IV. The role of the IATA standard form of condition of contract
V. Summary

D. Liability of the Carrier
I. Nature of Liability
II. When is the Carrier liable ?
1. Period of Transportation and custody
a.) strict interpretation
b.) broad interpretation
c.) summary
III. Damage, Loss, Destruction and Delay
1. Delay
IV. Unlimited Liability
V. Exoneration of liability
1.What are the necessary measures ?
2. Navigational Errors
3. Causation of, or Contribution to the damage by the consignor

E.Conclusion

F. Graphical Overview about the Warsaw Liability System

Table of Literature and Sources

(in order of publishing date / internet sources in alphabetical order)

Books:

Martin, Peter; de Montlauro Martin, Elizabeth Shawcross and Beaumont Air Law Volumes 1-3 London: 1999 ISBN: 0-406-37319-1

Giemulla, Elmar Maria and Schmidt, Ronald Warsaw Convention Kluwer Law International: 1998 ISBN: 90-6544-9183

Diedrichs-Verschoor, I.H.Ph. An Introduction to Air Law Kluver Law International: 1997 ISBN: 90-411-0408-9

Ott, Gerhard Die Luftfrachtbeförderung im nationalen und internationalen Bereich München: 1990 ISBN: 3-88259-753-4

Basedow, Jürgen Europäische Verkehrspolitik Tübingen: 1987 ISBN: 3-16-645088-2

Magdelénat, Jean-Louis Air Cargo Regulation and Claims Butterworth&Co. : 1983 ISBN: 0-409-84783-6

Internet:

Countryman & McDaniel Air and Ocean Logistics Customs Broker Attorneys www.cargolaw.com

Lufthansa Aktiengesellschaft www.lufthansa.de

Lufthansa Cargo Aktiengesellschaft www.lufthansa-cargo.de

SAS www.scandinavian.net

SAS Cargo www.sascargo.com

Table of Cases

(in order of decision date)

Grein v. Imperial Airways 1 K.B.50. (1937)

Sté Mitjaville v. Sté Air Algerie RFDA 322 (1950)

Meyers v. KLM USAvR 428 (1951)

American Smelting and Refining Co. v. PAL USAvR 221 (1954)

Cie Air Cargo v. Miller RFDA 86 (1958)

Flying Tiger v. US USAvR 112 (1959)

Panagra v. Nouvelle Fabrique Election S.A. ZLR 100 (1960)

Corocraft Ltd. v. Pan American Airways All E.R. 82 (1969) 1

Fret et Transit Aérien v. Sté Arsène RFDA 91 (1977)

Table of Abbrevations

(in alphabetical order)

illustration not visible in this excerpt

A. Introduction

During the last few decades transportation of cargo by air became more and more important. Due to their high speed and reliability, modern aircraft are widely used especially for the transport of urgent, sensitive and high quality products and goods. Especially within the field of international and transcontinental transportation.

The following few numbers are showing todays importance of international cargo transportation by air:

So is for example the Lufthansa Cargo AG offering 450 scheduled cargo destinations to which it is transporting up to 2.500 tons of goods a day¹. The scandinavian carrier SAS Cargo transported in 1997 270.000 tons of goods to 103 destinations in 34 countries².

Another factor increasing the amount of goods transported by air is the economic concept of “just in time” delivery. Following this concept, many companies are allocating the storage of goods extensively from the classical location bound storage facilities to the more flexible ones with “wheels” as well as with “wings”.

At the background of the flourishing air cargo transportation industry the demand for legal security and certainty is of imanent importance. This referrs mainly to cases of troubles related to the transported goods, which are leading to contractual problems, especially on liability, between the parties involved. Therefore it is useful for the consignor and the consignee to work on the basis of international widely accepted and used rules gouverning the carrier´s liability. On the other hand the carrier can protect and insure himself better against possible losses, if he is bound to rules of a certain degree of uniformity.

The following essay will show up and analyse, mainly in the light of the WC System, some problematic areas related to the contracts of transportation and the rules on liability in international cargo transportation.

B. Sources of law

Before starting analysing the problematic spheres of contracts and liability, it is useful to have a overview about the major sources of law related hereto.

I. International conventions and their amendments

As the international transport of goods by air is a area mostly concerning private international law, a important legal source are bi- or multilateral conventions³.

1. The Warsaw Convention of 1929

Without doubts, the WC is the most important Convention concerning the international unification of contractual liability in air transportation⁴. It defines and limits the rights of cargo owners as well as the corresponding liability of the carrier⁵. But as the official title of the Convention “Convention For The Unification Of Certain Rules Relating To International Transportation By Air” expresses, it is not a comprehensive codification of the international private law on air transportation. Its range is limited to the following areas important for our analyse:

a) Aa. 3-8 WC are containing rules on transportation documents. Of special interest are here Aa. 5-8 which are shaping out the form, function and necessity of the air waybill.
b) Aa. 9-16 WC regulating the legal relationship between the carrier, conseignor and conseignee in connection with the air waybill.
c) Aa. 17-30 WC are containing rules on the carriers liability in the case of loss, damage or destruction of goods. Allocating the sphere of responsibility for goods and the range and limitations of the carriers liability. They are complemented by the Aa. 20; 22; 25; 9 WC which are ruling the limitations and exemptions related to the carriers liability.
d) Aa. 1-2 and 31-40 WC are containing common rules on the scope and applicability of the convention. Be aware, that the detailed arrangement of the contractual contents is open to parties. As long as they are according to Aa.23; 24; 32 WC not infringing the rules fixed by the convention itself.

2. The Hague Protocol of 1955

After a few years of validity and experiences in the application of the WC, critics on some obscurities and omissions arose⁶. Due to the lack of support towards a new convention, it became apparent, that a amendment to the original WC will be enough to solve the problems. The most important changes related to the liability and contracts in international carriage by air are the following ones:

a) The HP facilitated the provisons about the transportation documents.
b) The sum to be paid in the case of the carriers liability was increased in passanger transportation. But pay attention that the maximum sum for cargo damage remained the same. Compare herefore A.22 WC and A.11 HP.
c) A important change was made concerning the unlimited liability on the basis of the carriers willful misconduct in A.25(1) and (2) WC. Here the position of the carrier was improved, as A.13 HP changed it to an act or omission done with the intent to cause damage or with the knowledge that damage would probably result⁷. Unintentional negligence is therefore not any more a reason to exclude the limited liability of the carrier.
d) A.14 HP is inserting A.25 A to the WC, which is bringing the carriers servants or agents into the same position on liability as the carrier himself.

Finally it is important to note, that the United States has refused to ratify the HP. Therefore transportation of goods by air from and to the USA from another state who has ratified the WC and HP is still gouverned by the rules of the WC in the original version of 1929.

3. The Guadalajara Convention of 1961

The GJC is a independent supplementary convention to the WC⁸. It was as the HP not ratified by the USA. Cargo transportation was impacted by introducing A.2 GJC which are binding the contracting as well as the performing carrier to the rules on liability under the Warsaw System. Acts and omissions performed by the actual carrier and on the other by the contracting carrier will be according to A.3 GJC deemed to be the same as the ones of the other part. But the overall sum to be paied per single damage claim is not allowed to exceed the limitation imposed through the WC⁹. A.8 GJC introduced an additional court jurisdiction bound to the place of residence or to the principal place of business.

4. The Montreal Protocols 1-4 of 1975

The MPs are amendments to the WC. Protocol 4 introduced the possibility to use modern information technology instead of the conventional “paper form” air waybill. A.18 WC/MP 4 limited the liability of the carrier to damges caused during the carriage by air. The calculation measure for damages in A.22(5) WC was changed from French Goldfrancs to SDRs. MP 1-3 changed the measure in all the other protocols to the WC. 1996 MP 1-2 came into force, MP 4 in 1998.

II. European Community Law

Within the Community legislation on air transportation there is actually one Council Regulation¹⁰ concerning liability. But this regulation is limited to passenger liability, and no reference is now made to cargo liability¹¹.

III. Intercarrier Agreements

The intercarrier agreements have to be seen as agreements between the carrier companies. But as to their main organisation, the IATA, have been granted certain administrative functions by states through their airlines, it is a body of certain public international character¹². These function is exercised by the IATA in many different ways, like publishing a frequently renewed “Manual of Traffic Conference Resolutions, Cargo” or by negotiating uniformed general conditions of carriage¹³. The agreemts between the carriers became to one of the most important sources of soft law on matters of air cargo transportation.

It is important to mention, that all these topics handled by the IATA are dominated by the scope of the Warsaw Convention and the texts which subsequently modified it. Basis for the recommended practices on the general conditions of carriage are:

a) The agreement done in Bermuda 1948 on contractual conditions of carriage, which Introduced a division of the conditions into “conditions of contract” and “general conditions of carriage of passengers” respectively “for cargo”. Here it is important to notice, that the general conditions are containing a explicit link to the possible applicability of the WC and its limited liability¹⁴.
b) The agreement of Honolulu 1953, which is a improved version of the Bermuda agreement.

These agreements are committing all joining carriers in their internal relationship to use the conditions of contract and not to jeopardize them. For the general conditions of carriage they are not bound, and it is left opened to the carrier to modify them. They are of recommended nature¹⁵. IATA Recommended Practice 1601 is the actual valid IATA condition of carriage for cargo¹⁶.

IV. Municipal law

As the WC is intended only to rule some fragments of air transportation, a important source of law completing the WC system are national regulations. These especially where the WC like in Aa.21; 22(1); 28(2); 29(2) refers to the lex fori of the deciding court. If the WC is not applicable, national law is decisive. Sources of national law may differ, but domestic regulations on private international law is in most cases important. Other regulations might be found in the national aviation code like the LuftVG in Germany, or in the trade, commerce, civil or transportation legislation as the BGB or HGB in the german example.

C. The contract of carriage by air

Before starting analysing the rules on liability in air cargo transportation, it is necessary to have a deep look on the contract of carriage by air, and the typical problematic issues and constellations occuring in its context.

I. The nature of the contract

Especially in cases on air transportation of goods dealt within national courts, the question on the nature of the contract is of significant importance. Therefore, it is necessary to analyse the legal character in order to ensure a secure and widely uniformed treatment of cases. Neither the WC in its original form, nor the amendments or complementing conventions mentioned in part B., are giving a explicit definition or ruling on matters how the contract between the carrier and the conseignor should be shaped out¹⁷. Aa.1(2) WC speeks for example in the authoritative french version about „les stipulations des parties“, in another part it uses the terminology of „contrat de transport“¹⁸ or only „contrat“¹⁹. Also other international conventions like the CMR are not useful for the search for a definiton. Tobolewski²⁰ stipulates that for the definition of the contract, the existence of a consent between the carrier and the conseignor is the main indicator. This definition of the contract is not satisfying, as is not compatible with the definitions of contracts in many legal systems:

a) In Spain for example, the contract has a real nature, since it will be completed with the handing over of the items to be transported.
b) In Germany, the legal definition through the consent is not problematic. But here is the discussion about the sub-characterisation of the consensual contract in progress. For the ruling opinion it is a service contract with the aim to achieve a success in the form of unproblematic transportation. On the other hand it is for the minority a simple bill of sale to buy a right on transportation²¹.

We see that the contract is difficult to define through the attempt of finding a defintion valid within all national legal traditions and systems. A possible soultion applicable in different legal systems, might be the attempt to show up the persons involved and how they are related to each other. Also helpful can be the analyse of the air waybill´s role and contents as well as a look on internationally widely used general conditions of carriage. The result is useful to understand the contract of transportation itself.

II. The contractual parties

One of the specific characteristics of the air transportation contract on cargo, is that three or even more parties can be involved or receive benefits. The transport itself can be provided by another carrier than the one contracting, or the contract is done by an agent. Important to mention in the context of the contractual parties, are the differing economic positions. On the one hand, there are the carriers with their enormous economic power, on the other hand there are multitude small individual customers²². These customers may face therefore a number of different situations within the highly organised air transport business. Therefore it is important to point out and define the parties to ensure correct application of liability rules in the case of damage, loss or destruction of cargo.

1. The Carrier

The person of the carrier is quite difficult to describe, as there are many different types. E.g. common carriers and private carriers or mixed carriers and all-cargo carriers. The first ones are differing in their obligations on transportation, which are higher for the common ones. Latter ones are characterised over the fact, if they are transporting solely cargo or passengers too. But today this is in most cases not any more a problem, as most former mixed carriers have sourced out their cargo department into a separated legal personality, which forms then the contractual party. For the term „carrier“ according to the WC there are two interpretations. One view holds, that the carrier is the one who concludes the contract in his own name, the second considers that the carrier is the one who actually performs the transportation²³. So we have to kinds of carriers, the contracting and the performing or actual carrier. The question in this context arising is, whether the contracting or the actual carrier are parties of the contract of transportation.

a) The contracting Carrier

One scientific opinion lead by Goedhuis²⁴ holds that the carrier is the person which concludes the contract. Based is this opinion on the idea, that only the carrier who has a direct contractual relationship with the consignor can be the carrier meant by the WC. The jurisdiction, is following this theory in general. In Georgiou v. Schenker & Co. and Olympic Airways²⁵ it was nevertheless stated, that there might be situations depending on Aa.1(3); 3; 20 and 30(1) WC where the performing carrier is party in the contractual relationship.

b) The performing or actual carrier

We are here in the sphere of successive transportation, which means, that the cargo is transported to its final destination by different carriers. But even if the consignor concludes a contract with each of the carriers who will transport successively the goods, they are still altogether jointly liable. See therefore A.30 in connection with A.1(3) WC. If the consignor deals with the first carrier who ensures the subsequently transportation, there is only one contract. The limitation of all the involved carriers liability is not endangered by the fact that the air waybill states only one carrier, if it is possible for the consignor to inform himself about the fact that there are different carriers in the specific transportation involved. E.g. by looking on the schedules of the contracting carrier, like it was upheld to be sufficient in the Rotterdamsche Bank v. BOAC²⁶ case. Additional it is pursuant to A.8 WC enough to state only the first carrier´s name on the air waybill. Conditions of carriage on its back might allow the carrier to substitute another carrier without warning²⁷. Multiplicity of air waybills for the contracting and the performing carrier is no indicator for separated contracts with the contracting and the actual carrier²⁸. Reason is the character of the air waybill as a piece of evidence for a contract, it is not the contract itself. This problem will be discussed later on.

c) Combined transportation

Another problem concerning persons involved in the contract of transportation, is occurs if parts of the journey of the transported goods are not done by air, but provided by a person offering another mode of transportation. This might be e.g. road or rail transportation. A.31(1) WC states, that this clauses of the contract are not governed by the Convention. But they might be treated in the same way, as the regular air transportation, if the air waybill includes particulars relating to other modes of transportation. As this topic is of great complexity it will be not discussed further on in the context of this essay.

2. Air cargo intermediaries

These are agents, who are completing all the formalities on the consignors behalf, and are doing transportation of merchandise, but are not involved in the operation of aircraft. They are normally certified by the IATA and bound contractually to the air line companies which are in most cases IATA members. The agents obligations are only to receive the cargo, to hand it over to the airline and to accept payment for the carrier. He is contracting on behalf of the airline with the consignee, and is stating as evidence the choosen airlines name on the air waybill. As he is acting on behalf of the carrier, he is not contracting party and therefore only directly liable towards the consignee if problems are caused by their personal faults. Non-certified agents, called forwarders, are not contractually bound to specific airlines. Therefore they are themselves contracting carriers and are issuing own air waybills and are fully responsible within foreseeable limits according to A.22 WC²⁹.

3. Consignor and Consignee

A typical characteristic of the air transportation contract is, that beside the carrier and the consignee, there is a third party, the consignor. The contract itself is made between the consignor and the carrier, but the consignor takes advantage by receiving the cargo. Keep in mind, that the relationship between the consignor and the consignee is not influenced by the contract of transportation. Sometimes, the consignor and the consignee might be even the same person. Reference as consignor should be only made to persons stated on the air waybill. But as we will see in the discussion on the air waybill, the air waybill is only evidence for the contract. Therefore the consignor can be another person than the one stated on the bill. But in practice, only the one is seen as the consignor who is stated as such on the air waybill. It is the same for the consignee. Here is the only problem the negotiable air waybill drawn up to the bearer. But as the consignee is not part of the contract, there is no need to state a consignee.

III. The air waybill

The air waybill is a document related to the bill of lading in maritime transportation, and is containing important information explained later. In the contractual relation, the air waybill plays an important role. As it is handed out in nearly all cases, it might be seen as the contract of carriage itself. But as A.11(1) WC provides, the air waybill is normally only prima facie evidence for the existence of the contract, subject to prove the contrary³⁰. Especially on regards to weight, dimensions, number and packaging of goods³¹. This characterisation was upheld in the Meyers v. KLM case³². The drafting of the air waybill has also an important impact on the liability system of the WC, which will be discussed in the liability context later on. It is a document that the consignor according to Aa.5;6 WC may be required to make out and to request its acceptance by the carrier. It is then made out in triplicate³³, and it is containing³⁴ according to A.8 WC (be aware, that the HP reduced the number of the required containments. But as it is still not ratified by many countries, the characteristics of the air waybill will be shown up on the example of the unmodified WC):

1. Place and date of execution, departure, destination and the agreed stopping places

The place and date of execution are important to determine the applicable law and competent court. But they are rarely omitted since they are essential in transportation contracts. Departure and destination places are referring to the aim of transportation, and are accordingly to the Grein v. Imperial Airways³⁵ holding „the place at which the contractual carriage begins and the place at which the contractual carriage ends.“ Reason for the required notification of agreed stopping places is to indicate whether or not a journey is international, and therefore falling under the scope of the WC. A.6 HP is explaining the problematic of domestic flights with stopping places on foreign territory. Stopping places must not be mentioned on the air waybill in order to avoid unlimited liability, if the stopping places are part of the carriers official schedule or if the two parties know in advance the points of stop over³⁶.

2. Name of the consignor, first carrier and consignee if the case so requires

The name of the consignor has to be mentioned, as he is according to Aa.12; 14 WC the one, the rights and obligations resulting deriving out of the air waybill are falling on. On a standard air waybill, there are normally two fields for carriers names. One is used by the contracting party, and if the contracting party is differing from the first carrier, he is mentioned in the second field. The more important field is the one of the contracting party. Problems are arising here if the parties are using abbreviations or codes to identify themselves. This is then allowed, if there is no doubt about the designation of the carrier and his address³⁷. If the consignee is different from the consignor, his name and address have to b clearly inserted on the air waybill. The correctness is here of high importance, as a wrong statement can cause great confusion in the final delivery of the cargo.

3. The nature, condition, weight, quantity, volume or dimension of the cargo and the method of packing with particular marks or numbers on the goods

These points to be stated are of very high importance, as they are the most important statements given in order to find out on their basis as prima facie evidence, what the precise content of the contract of carriage was. This was shown up by the StéMitjaville v. StéAir Algerie ³⁸ case, where the air waybill stated the number of packages of aubergines which have been intended to send from Iran to Paris. The carrier not respecting this statement, his basis for calculation was the weight of the freight. In Paris the consignor was missing 58 boxes. The carrier was held liable, as he was not able to prove, that contrary to the air waybill, the contract of carriage was not made on number, but on the weight of the cargo. The statement on the nature of the goods is important, in order to determine whether cargo may be transported or should be refused and in order to take appropriate care to avoid damages. Particular marks and the method of packaging should be stated in order to identify easily specific goods e.g. in the case of loss. Weight, volume or dimensions and quantity are under the WC (not under the HP) primary evidence for what has been handed over. If these facts are not stated, the carrier is loosing the privilege of limited liability according to A.9 WC. A problematic point is here, if all the factors mentioned, have to be stated on the air waybill, or if it is enough to state them as alternativly, if the other alternatives can be deducted from the given one. The different translations of A.8 WC are here offering different interpretations, in the english version there is the word “and” between quantity and volume. In the american version there is simply a comma and in the original french version, there is a “or” between the two words. In the Corocraft³⁹ case it was decided, that the original french version is supreme, and that it is enough to state the weight, as the four particulars are virtually the same, and as according to A.22(2) WC the method of calculating damages is the weight, this is the most important statement to do⁴⁰.

4. Statement that the transportation is subject to the liability rules under the WC

This statement is also required by A.9 WC, in order to avoid unlimited liability. Reason therefore is, to inform the consignee about the financial risks he is exposed to, in cases of loss or damage of his cargo. He can then protect himself with supplementary insurances if he judges that the limits are inadequate. These statment must be printed in clear and understandable language on the bill, as it was required in th e Philippson v. Imperial Airways case⁴¹ . Also a sublinking to tariffs which are then stating the WC rules on air cargo transportation is not allowed⁴².

5. Other statements on the air waybill

Note, that the statments to be printed on the air waybill mentioned above are the ones which are required by the original A.8 a to i and q WC in connection with A.9 WC. The HP demands only three statments set out in A.6 HP. But even the WC demands a few minor statements according to A.8 j to p WC which have no effect on the liability if they are missing. Apart from this informations, the partis have complete freedom to insert any other statement which they consider necessary, and which is not contradictionary to the WC.

IV. The role of the IATA standard form of conditions of contract

As already mentioned, the carrier can use the IATA general conditions of carriage to shape out the legal details of the contract of transportation by air⁴³. They are standardised modalities, left open to the carrier to use or modify them. On the other hand the carriers which joined the Bermuda and/or Honolulu Agreement are obliged to use standard forms of condition of contract specified for cargo in IATA resolution 660b⁴⁴. They are containing textes to be printed on the air waybill. The content is a notice concerning the carrier´s limited liability in compliance with both, the amended and unamended WC, as well as a defintion of international transportation and a link to the corresponding articles within the WC. Another content is a definition of the term “carrier” and a explenation about the scope of applicability concerning carriage by land. Such a carriage is falling according to the conditions of contract under the WC, if a land carrier picking up or delivering goods as a “performing service incidental to” air carriage. Name and address of the first carrier have to be stated on the air waybill, and a statement that the measure for calculating damages is the weight of the goods. One article is protecting the carriers agents, servants and “actual carriers” by leaving the possiblity open to limit their liability. The conditions are prohibiting the modification or waiving of any provisions of the contract by the carrier.

In general the IATA conditions of contract are reflecting many provisions fixed in the WC, like e.g. A.16 WC is found again in paragraph 13 IATA conditions of contract containing regulations about the attachement of documents to the air waybill. But the IATA conditions are not allowed to be contradictionary to the regulatons of the WC. These conditions are then according to A.32 WC null and void⁴⁵.

V. Summary

According to all these factors influencing and constituting the contract, and to the fact of a missing precise definition we can hold, that the contract of carriage of goods by air is a standard form contract or contract of adhesion, since it terms cannot be negotiated by the parties⁴⁶. Concerning the interpretation of its legal character, the role of the air waybill and the IATA general conditions of carriage⁴⁷ are important guidelines. It is also a special kind of contract because three or more persons can be involved. The precise definition under the roof of commonly accepted characteristics of the contract remains different in the domestic legal systems.

D. Liability of the Carrier

We have already seen several times under the topics mentioned above, that regulating liability of the carrier is the core purpose of the Warsaw System laid down in the Aa.18 to 30 WC and later amended and changed several times⁴⁸. Note, that the liability rules in the WC are only governing the sphere of transportation, not for instance, cover manufacturers or air traffic controllers⁴⁹. The two rules on which the liability is based are Aa.18 and 19 WC. A.18 WC deals with the liability related to the state of the cargo transported. A.19 establishes the liability for damages occasioned by delays in transporting the merchandise. Basis for the liability is the contract of transportation as presented above under B). It puts the carrier under an obligation to avoid damage without delay.

I. Nature of the liability

The idea of shaping out a liability regime in the WC which is accepted by all different nations was guided by a system of presumed fault with a reversed burden of proof⁵⁰ and not absolute liability. That means that the presumed fault lies on the carriers side, but he can proof the contrary according to Aa.20; 21 WC by showing that he took all the necessary measures to avoid the damage. In 1975 the liability system was changed by the MP 4. A.V. MP 4 the liability system became a strict one, as now also the impossibility to take avoiding measures is stated as a defence. But the carriers indemnity is still limited. Secondly the MP 4 introduced unbreakablitity of the limit of liability. As the old A.22 WC states „shall“ the new one is fixing the maximum limit through the term „is“. Notice that the liability is limited to a specific sum of 250 francs per kilogramme without a special declaration of interest under the WC and HP, and to 17 SDR per kilogramm according to the MP IV.

II. When is the carrier liable ?

The WC is holding the carrier liable in four possible constellations. These are destruction, loss, damage like it is stated in A.18 WC, and for damages caused by delay according to A.19 WC. The problem arising here is how to define the period in which the carrier is in charge of the goods and the length of time during which the carrier remains liable. That the carrier have to be in the possession of the cargo is a conditio sine qua non established by A.18 WC, as the goods can only be transported if the carrier has them in charge. If this requirement is not met, the WC will not apply.⁵¹ Basis for the definition are the two terms of “period of transportation” in A.18(1) WC and “custody” according to A.18(2) WC.

1. Period of transportation and custody

As neither the WC nor one of the preceeding conventions and amendments is offering a clear definition it is necessary to look on the jurisdiction refering to the topic. Even A.18(3) WC can only be seen as a help, not as a final definition itself⁵². Actually there are a strict and broad line of interpretaion detectable in the jurisdiction. Similar to the period of transportation there is a strict and a broad line of interpretation.

a.) Strict interpretation

For the strict line, the period of liability of the carrier begins at the moment of embarkation and ends with the disembarkation of the cargo. The period of custody is seen as the time in which the cargo is in the carrier´s charge. The period of custody ends as the goods are handed over to the customs authorities or directly to the consignee. In the case UIS v. Pacific Western Airlines⁵³ it was held that the consignors presence during transportation and custody is not terminating the carrier´s liability.

b.) Broad Interpretation

The approach of strict interpretation is not widely spread and partly contrary to the text of the WC itself, as e.g. A.18(2) WC expressely expands the period of custody to the time in which the goods are on the airport. This might be the case even after the hand over to the custom authorities. Secondly there is a more flexible need to handle cases of multimodal transportation in the purpose of loading, delivery and transshipment described in A.18(3) WC. This is normally the case if the contract of transportation covers take away and delivery of the goods directly from the consignors to the consignees place of business. However, the carriers can avoid this situation by issuing two different contracts, one for the delivery and one for the air transport itself. Then A.18(3) WC is not applicable to the land transport. Evidence herefore is normally the payment of two seperated prices like it was done in the T.W.A. v. Guigui⁵⁴ case. For the broad interpretation the period is defined by the period of legal control⁵⁵ over the cargo and not a matter of geographic distance. This approach can be critizised, as e.g. a journey performed by a truck 150 km away from the airport was considerd to be covered by A.18(3) WC⁵⁶. The question is here when the legal control of the carrier ends. In contrast to the strict interpretation, the mere fact that the cargo is disembarked is not enough to terminate liability as it normally does not terminate the contract of carriage. The goods are remaining in effective charge of the carrier as long as effective delivery had not been made to the consignee⁵⁷.

c.) Summary

Both approaches can not provide a clear definition of the periods of custody and transportation. The strict line is too inflexible in catching multimodal transportation according to A.18(3) WC and is difficult to apply on todays air cargo undertakings, which are normally offering the whole scope of transportation, in order to transport goods directly from and to the client. On the other hand is the broad line too much fixed on the legal control what is leading to problems drawing a clear line between land and air transportation as well as between mere ”transshipment” and multimodal transportation. Finding a final defintion will be an impossible attempt as the national courts applying the WC in their decisions are themselves influenced by different interpretative approaches. Therefore it is useful look at the national legislation and jurisdiction of the country concerned in handling a problematic case in the field of period of time and custody in which the carrier is liable.

III. Damage, loss, destruction and delay

The four reasons mentioned, are the possible disturbances that can happen to the cargo and leading therefore to a mis- or unfulfilled contract of carriage. Herefore the carrier can be hold liable. In the sphere of damage, loss and destruction there are virtually no problems arising. In trial the judge can easily determine if the claim is falling under one of the terms mentioned in A.18(1) WC. But in the sphere of delay there are many loopholes contained, as the form WC itself shows. The delay is governed separately in A.19 WC.

1. Delay

We can see that this article does not indicate factors constituting such a delay⁵⁸. A possible point of orientation could be the air waybill. A.8(p) WC provides, that the air waybill can contain a fixed time for the completion of the transport. If this information is stated on the air waybill, it can be simply calculated whether the time limit has been exceeded by unreasonable delay. But as A.9 WC states, is this information not obligatory. Therefore it can happen, that no evidence for a agreed time is given. This again could be contradictionary to A.23 WC, which forbids any provision tending to relieve the carrier of his obligations⁵⁹. Avoidance of a conflict between those two regulations is the purpose of the phrase „if these matters have been agreed upon“. The latter situation is the one normally occuring, as the IATA conditions of contract provide that the times shown on the schedules or elsewhere are not guaranteed ones. Again a conflict to A.23 WC is arising. In most existing judgements, the clause was accepted only in very limited cases, where it was used as a matter of exoneration for delay which is of little importance. In the case Bart v. BWIA⁶⁰ it was decided that a delay has to be accepted and tolerated if it is a „reasonable delay“. Cases are falling under this definition, if the delay was expectable in advance by the consignor or a cas fortuit or force majeure is given⁶¹. E.g. by lightnings forcing the airplane to land⁶² or civil demonstrations blockading an airport⁶³. However the carrier has to take all measures necessary to minimise the risk of delay. Typical cases where the judges held the delay for unreasonable even if the air waybill was containing no fixed time are: failure to make an agreed reservation; general lack of space; failure to put goods onto the aircraft or cargo was put onto the wrong one; failure to offload the cargo; mislaying of accompanying documents essential for regular delivery⁶⁴. In court the plaintiff must show then the causal link between the damage suffered and the unreasonable delay discussed above. A.22(2) WC on calculating the limited liability is applied on delay as well as on destruction, loss or damage of goods.

IV. Unlimited liability

We already touched in the discussion of the role of the air waybill the sphere of cases in which the carrier is not liable. See for more details on A.9 WC the air waybill chapter. Another possibilities are arising in the case of non-performance of the carrier and according to A.25 WC, if the damage was caused by wilful misconduct. The first one is falling under A.22 WC, as it will fall under the breach of the conditions laid down in the air waybill. Liability will remain limited. A.25 WC is applicable in all cases, in which the damage, loss or destruction according to A.18(1) WC was intentionally caused by the carrier. The problem is here, that the notion dol does not exist in the anglo-saxon legal system⁶⁵. To apply this concept, a objective test was introduced. It is asking if a neglect of duty or regulations was given. Additional there have to be the knowledge on the side of the carrier, that such a breach of duty would probably cause damages. The definition changed since the Goepp v. American Overseas Air Lines⁶⁶ case. It was now on the consignor to raise evidence of a carriers intent to act in the awareness of the consequences and a deliberate or reckless determination to do it regardless of the consequences. A similar definition is existing in countries like Germany, where the HP is in force. Such a conduct is defined as a total disregard of something which is clear to an individual in a particular case or the omission of obvious and simple considerations⁶⁷.

Remind, that in countries where the MP IV is in force there is no longer the possibility left to exceed the limit of the liability.

V. Exoneration of liability

We touched already several times the possibilities of the carrier to avoid his liability. To show up these possible exonerations is the purpose of the following chapter. Basically Aa.20(1) and 21 WC is the legal basis on which the carrier can avoid his liability. The objective test, to prove if the carrier has taken all appropriate measures to avoid the damage, or if it was impossible to do so, is done in the civil law countries over the pater familias principle and in common law countries over the common man principle⁶⁸. These tests are bound to the moment in which the damage occured, but the carrier has nevertheless to take the necessary measures before, as well as after the departure of the aircraft.

1. What are the necessary measures ?

To fill out this term, the courts defined it in the USA and partly in France restrictively as all possible measures. The carrier can´t exonerate himself from liability if he missed one measure that could have been taken to avoid the damage. Under this approach, the carrier will have to prove, that he took specific measures relative to the precise cause of the accident in order to avoid his liability. How far this concept can go is shown by the Alitalia v. StéSerres et Pilaire case⁶⁹. Here the carrier was held liable, as he couldn`t prove, that he took all measures to prevent a pilot´s strike. A more liberal interpretation of the term „necessary measures“ sees them as „reasonable measures“. These are measures which are normally taken in air transportation by air with all the required care. Standard are internationally accepted and widespread common procedures and the special knowledge of the carrier about e.g. specific problems within his administration or about problems with the aircraft. In cases where the cause of the damage remains unknown, the carrier is not liable if the court himself can´t find additional measures which might have prevented the damage.

2. Navigational errors

Navigational errors according to A.20(2) WC are a second possible reason for exoneration. Pay attention that the HP deleted A.20(2) WC and it is therefore not applicable in countries which have ratified it. A.20(2) WC is applicable, if the carrier can show that the damage was caused by a navigational error as e.g. negligence of the commander piloting his aircraft⁷⁰.

3. Causation of, or contribution to the damage by the consignor

A.21 WC offers the carrier another reason for exoneration. It is then applicable, when the carrier can show that there was a chain of causation between a negligent or willful behaviour of the consignor and the damaged happened. Another reason for exoneration could be found in A.23(2) WC, if the nature of the cargo itself caused the damage or contributed to it.

E. Conclusion

We had now a look on the system of liability under the Warsaw Convention. It is important to remind once again the fact, that this essay was basically looking onto the original convention of 1929. The numberous amendments and additional conventions haven´t been discussed in the whole context. Reason herefore is the large number of countries which has ratified none or only some of the documents negotiated after the WC. So we are today far more away from a unification of the rules concerning liability in air cargo transportation as it was intended by the WC. Todays scientists, officials and lawyers work on this topic necessarily have to be guided by the idea of worldwide unification of the rules as it was already the purpose in 1929. Otherwise it will be more and more difficult to guarantee legal certainty, effectivity and applicability in a world where transportation of goods by air is growing by large numbers.

A step forward into the right direction might have been done with the discussion on the Montreal Convention of 1999.

F. Graphical overview about the Warsaw liability system

illustration not visible in this excerpt

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¹ See www.lufthansa.de/dhome.htm and www.lufthansa-cargo.de

² See www.sascargo.com/news-facts/background/downloads/companyprofile.pdf

³ See Beaumont; Air Law p.I,22

⁴ See Ott; Die Luftfrachtbeförderung p.6

⁵ See Beaumont; Air Law p.I,35F

⁶ See Beaumont; Air Law p.I/37

⁷ See Ott; Die Luftfrachtbeförderung p.9

⁸ See Ott; Die Luftfrachtbeförderung p.10 and Beaumont; Air Law p.VII/67

⁹ See A.6 GJC

¹⁰ See Reg. 2027/97 OJ No. L 285/1

¹¹ See Beaumont; Air Law p.VII/91

¹² See Magdelénat; Air Cargo p.14

¹³ See Ott; Die Luftfrachtbeförderung p.34

¹⁴ See Aa. 3; 22 WC

¹⁵ See Ott; Die Luftfrachtbeförderung p.36

¹⁶ See Giemulla/Schmidt; WC Annex II-1b

¹⁷ See Ott; Die Luftfrachtbeförderung p.37

¹⁸ See A.5(2) WC

¹⁹ See A.11 WC

²⁰ See Magdelénat; Air Cargo p.37

²¹ See Ott; Die Luftfrachtbeförderung p.43

²² See Magdelénat; Air Cargo p.21

²³ See Magdelénat; Air Cargo p.22

²⁴ See for more details Goedhuis, National Air Legislation and The Warsaw Convention (The Hague, 1937) no.94

²⁵ See IATA Air Carrier Liability Reports, no. 206

²⁶ See 10 Avi 17, 651 (1967)

²⁷ See Magdelénat; Air Cargo p.24

²⁸ See Lufthansa v. CNRS B.T. 89 (1971)

²⁹ See for more details Magdelénat; Air Cargo pp. 31-33

³⁰ See Magdelénat; Air Cargo p.44

³¹ See Verschoor; Introduction to Air Law 2.2.3

³² See USAvR 428 (1951)

³³ See Verschoor; Introduction to Air Law 2.2.3

³⁴ See for the listing Magdelénat; Air Cargo pp. 50-60

³⁵ See 1 K.B.50. (1937)

³⁶ See Flying Tiger v. US USAvR 112 (1959) and American Smelting and Refining Co. v. PAL USAvR 221 (1954)

³⁷ See Panagra v. Nouvelle Fabrique Election S.A. ZLR 100 (1960)

³⁸ See RFDA 322 (1950)

³⁹ See Corocraft Ltd. v. Pan American Airways All E.R. 82 (1969) 1

⁴⁰ See Magdelénat; Air Cargo p.54

⁴¹ See USAvR 63 (1939)

⁴² See Flying Tiger v. U.S.; USAvR 112 (1959)

⁴³ See Ott; Die Luftfrachtbeförderung p.53

⁴⁴ See Beaumont; Air Law p.VII/110

⁴⁵ See for more details on the IATA conditions of carriage Beaumont; Air Law pp.VII/110-115

⁴⁶ See Magdelénat; Air Cargo p.37

⁴⁷ See above under B.III.

⁴⁸ See for more details chapter A. of this essay

⁴⁹ See Verschoor; Introduction to Air Law 2.2.3

⁵⁰ See Verschoor; Introduction to Air Law 2.3 and Magdelénat; Air Cargo p.80

⁵¹ See Magdelénat; Air Cargo p.80

⁵² See Magdelénat; Air Cargo p.81

⁵³ See 68 W.W.R. 317 (1969)

⁵⁴ See RFDA 333 (1966)

⁵⁵ See Magdelénat; Air Cargo p.82

⁵⁶ See case U.T.A. v. Transports Aériens RFDA 79 (1977)

⁵⁷ See case Sprinks & Cie. v. Air France RFDA 405 (1969)

⁵⁸ See Verschoor; Introduction to Air Law 2.8.

⁵⁹ See Magdelénat; Air Cargo p.84

⁶⁰ See 1 Lloyds Law Reports 239 (1967)

⁶¹ See Magdelénat; Air Cargo p.88

⁶² See Cie Air Cargo v. Miller RFDA 86 (1958)

⁶³ See Fret et Transit Aérien v. Sté Arsène RFDA 91 (1977)

⁶⁴ See for the listing Verschoor; Introduction to Air Law 2.8

⁶⁵ See Magdelénat; Air Cargo p.103

⁶⁶ See 3 Avi 18,057 (1952)

⁶⁷ See Magdelénat; Air Cargo p.107

⁶⁸ See Magdelénat; Air Cargo p.93

⁶⁹ See RFDA 181 (1979)

⁷⁰ See Magdelénat; Air Cargo p.96