International Conventions and Regulations - Carriage of Passengers and Baggage

AuthorMatthew Chapman/Sarah Prager/Jack Harding/Dominique Smith/Thomas Yarrow/Henk Soede
Pages413-535

Chapter 10


International Conventions and Regulations – Carriage of Passengers and Baggage

10.1 This chapter deals with some of the main provisions of the more important international transport conventions and regulations in so far as they concern the carriage of passengers and baggage. The carriage of domestic passengers and luggage is also considered in outline. International conventions governing the carriage of passengers and luggage – whether by air, sea or rail – impose similar (but by no means identical) international and independent regimes.

THE MONTREAL CONVENTION

History

10.2 An international summit held in Warsaw in 1929 produced a Convention for the unification of certain rules relating to international carriage by air. This was amended at a conference at The Hague in 1955 and the revised Convention came into force in 1963. The Warsaw Convention and the Hague Protocol1are to be read together and as a whole are referred to as the Warsaw Convention as amended at The Hague 1955.2The detailed picture is further complicated by the fact that not all parties to the original Convention were parties to the Convention as amended at The Hague.

10.3 These complications compromised the intention underlying the original Warsaw Convention, which was to provide a uniform set of international rules. The resultant splintering of the liability system generated much confusion. In more recent years international agreements between airlines and rules imposed by the European Union further undermined the value of the Warsaw Convention as a uniform code of rules for international carriage by air. Increasingly, those whose

1Protocol to Amend the Convention for the Unification of Certain Rules Relating to International

Carriage by Air, 28 September 1955.

2Also referred to as the Warsaw–Hague Convention.

414 Saggerson on Travel Law and Litigation

travel took them to or from the United States or the European Union, or where the carriage involved stopping in the United States or the European Union, found themselves governed by systems of rules grafted onto the principles of the Warsaw Convention. Invariably, these other semi-detached systems of rules were more advantageous to the passenger compared with their position under the original and modified Warsaw Convention.3

Modernisation

10.4 An attempt to modernise the Warsaw–Hague Convention was commenced as long ago as 1995. The attempt culminated in the Montreal Convention in 1999.4

The Convention came into force on 4 November 2003, 60 days after ratification by the 13th State Party – this being the United States. The State Department said this on ratification:5

The Montreal Convention is the culmination of over four decades of efforts by the United States to eliminate the unconscionably low limits of liability provided under the 1929 Warsaw Convention when passengers are killed or injured in international air carrier accidents.

The significant new benefits of the Montreal Convention include:

– Completely eliminating liability limits for death or injury of passengers.
– Allowing lawsuits in cases of passenger death or injury to be brought in the courts of the passenger’s ‘principal and permanent residence’ where the carrier has a commercial presence in that state, which will in almost all cases ensure that U.S. citizens and permanent residents can bring an action in U.S. courts

10.5 The Department for Transport was similarly eulogistic about the Convention albeit with a somewhat different emphasis:6

The Montreal Convention introduces a comprehensive and up-to-date set of rules defining and governing the liability of air carriers in relation to passengers, baggage and cargo. Provisions equivalent to some of the provisions of the Convention are already in force by virtue of Council Regulation 2027/97 and earlier amendments to the 1961 Carriage by Air Act.

3For an introduction to the Warsaw–Hague regime and some of its complexities, see the third edition of this work.

4The Montreal Convention is referred to in the balance of this section of the chapter as ‘the

Convention’.

5Extract taken from the US State Department website in 2003.

6Extract taken from the Department for Transport website in 2003.

The main additional benefits implementation of the Convention will bring are as follows:

a. The possibility of an electronic document of carriage (Article 3.2);
b. A liability limit in relation to damage caused by delay to passengers of [5,3467]

SDRs [Special Drawing Rights] (Article 22.1);
c. A liability limit in relation to the destruction, loss, damage or delay of baggage of 1,2888SDRs (Article 22.2);

d. A mechanism for the periodic review of liability limits (Article 24);
e. A new jurisdiction (Article 33);
f. A State Party may require carriers from other States Parties to furnish evidence of adequate insurance (Article 50).

English law

10.6 The Convention has effect in English law by virtue of the Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 20029and came into force in the United Kingdom and the rest of the European Union on 28 June 2004.10The Convention re-establishes a degree of urgently needed uniformity and predictability of rules relating to the international carriage of passengers and baggage, while maintaining the core provisions which successfully served the international air transport community for several decades under the Warsaw– Hague regime. The new Convention achieves a degree of modernisation in a number of key areas and protects passengers by introducing a modern two-tier liability system11and by facilitating the swift recovery of damages with the intention of avoiding litigation. Schedule 1 to the Carriage by Air Act 196112

extends the application of the Convention to the Channel Islands and the Isle of Man.

7As revised by the Carriage by Air (Revision of Limits of Liability under the Montreal Convention)

Order 2021 (SI 2021/1448).

8As revised by the Carriage by Air (Revision of Limits of Liability under the Montreal Convention)

Order 2021.

9SI 2002/263.

10European Union countries jointly ratified the Convention on 29 April 2004. The provisions of the

Convention relating to the liability of air carriers were incorporated into Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents, [1997] OJ L 285/1 (Regulation 2027/97), as amended by the Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019 (SI 2019/278)), and form part of the body of retained EU law following the United Kingdom’s departure from the European Union.

11See, further, below.

12Which still applies for these purposes.

416 Saggerson on Travel Law and Litigation

A new regime

10.7 The Montreal Convention is a new treaty. It is not just a series of amendments to the old Warsaw–Hague regime. Nonetheless, it is likely that the many domestic and international authorities on the construction of the Warsaw– Hague Convention will be deployed in construing the Montreal Convention where the words deployed in each are comparable.13

Applicability of the Convention

10.8 Article 1 of the Convention states:

Article 1
Scope of application

1. This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.
2. For the purposes of this Convention, the expression ‘international carriage’ means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.
3. Carriage to be performed by several successive carriers is deemed, for the purposes of this Convention, to be one undivided carriage if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territory of the same State.

13The meaning of ‘accident’ in Article 17 being one of the most important; as to which, see further below. Stott v Thomas Cook Tour Operators Limited [2014] UKSC 15, [2014] 2 WLR 521 is an example of a case in which case law decided under the Warsaw Convention was applied to a claim governed by the Montreal Convention.

International carriage

10.9 It is the agreement for carriage that matters.14The agreement will be evidenced by the passenger ticket or tickets and it is the entire agreement15 that

counts for the purposes of determining whether the carriage is international. One agreement may involve several tickets and many flights or journeys. One must take the agreed carriage as a whole, rather than merely that limb of the journey during which a mishap has occurred, in order to determine whether the incident is governed by the Convention. Some examples of international carriage may illustrate the implications of Article 1(2) (where Outer Mongolia is not a High Contracting Party):

(a) London–New York;
(b) Belfast–London–Paris;
(c) Glasgow–Brussels–London;
(d) London–Outer Mongolia–London;
(e) Brussels–Paris–Corsica.

10.10 Some illustrations may assist with the effect of Article 1 in respect of ‘international carriage’:

(a) In the second example given above, where a passenger suffers an actionable accident on the limb of their journey from Belfast to London causing them to disembark in...

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