Consolidation of the Warsaw/Hague System
Biilent Sizer*
Introduction
The purpose of this artiole is to examine the possible consolida-
tion of the instruments of the Warsaw/Hague System in a single
convention and to, make some comments and suggestions. The
possibility of consolidation was introduced by Resolution incor-
porated in the Final Act of the International Conference on Air Law
held in Montreal from 3 to 25 September 1975.1
In order to facilitate analysis of the provisions of the above-
mentioned resolution, the fundamental concepts and principles of
the Warsaw Convention of 19292 along with amending or supple-
mental Conventions and Protocols shall briefly be described, since
they serve as the basis of the proposed consolidation. It is then
proposed to examine how this consolidation can be accomplished.
I. Historical background
A. Warsaw Convention
This Convention deals principally with the documents of carriage
and the liability of the air carrier. With respect to the first item,
the Warsaw Convention contains rules concerning the passenger
ticket,3 baggage check,4 and air waybill,1 including the designation
of persons responsible for issuing them, their preparation, their
proper content, and the legal implications in cases of deficiencies in
their issuance.0 With respect to the second item, the Convention
provides for a presumption of carrier liability in cases of death or
injury of a passenger,1 destruction or loss of baggage” destruction
* Dr jur., Legal Adviser, Turkish Airlines.
‘ICAO Doc. 9144 (1975).
2 Convention for the Unification of Certain Rules Relating to International
Carriage by Air 49 Stat. 3000; T.S. No. 87 (1929)
[hereinafter Warsaw Con-
vention]. This translation of the authoritative French text is that followed by
the United States.
3Ibid., Art. 3.
4 Ibid., Art. 4.
5 Ibid., Arts. 5-16.
6 Ibid., Arts. 3(2), 4(4) and 9.
7Ibid., Art. 17.
8Ibid., Art. 18(1).
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or loss of goods,9 and delay in the carriage of passenger, baggage
and goods.’
The liability regime of the carrier as provided for by the Con-
vention is based on fault. According to Article 20(1), the carrier
shall not be liable if it proves that it and its agents have taken all
necessary measures to avoid the damage or that it was impossible
to take such measures. Furthermore, with respect to the carriage
of goods and baggage, Article 20(2) provides that the carrier shall
not be liable if it proves that the damage was occasioned by an
error in piloting, in the handling of the aircraft, or in navigation,
and that in all other respects it and its agents have taken all the
necessary measures to avoid the damage.
Principally, the liability of the carrier is limited. Though under
obligation to compensate the victim for the actual damage suffered,
the carrier is not obligated to make payments above, the liability
limits.’ However, the carrier loses the benefit of this limited
liability if the damage was caused through its wilful misconduct or
gross negligence, 2 or if the documents of carriage were either not
issued at all or not in conformity with standards laid down by the
relevant articles. 13 The limits are as follows: 125,000 gold francs per
passenger; 250 gold francs per kilogram of checked baggage and
cargo; 5,000 gold francs for articles which the passenger carries
with him.14
B. The Hague Protocol
This Protocol’ 5 simplified the rules relating to documents of
carriage and reduced the number of mandatory provisions therein.
Paragraph 2 of Article 20 was deleted,1 and a new article was added
enabling the servants and agents of the carrier to take advantage of
the limits of liability enjoyed by the carrier.1 No change was made
in the limits relating to baggage, goods and articles which the
9 Ibid.
10 Ibid., Art. 10.
11 Ibid., Art. 22.
12 Ibid., Art. 25.
13Ibid., Arts. 3(2), 4(4) and 9.
14Ibid., Art. 22. For the value of a “gold franc”, see Art. 22(4).
‘ Protocol to Amend the Convention for the Unification of Certain Rules
Relating to International Carriage by Air, ICAO Doc. 7632 (1955) [hereinafter
The Hague Protocol].
16 Ibid., Art. X.
17 Ibid., Art. XIV, adding Art. 25A.
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CONSOLIDATION OF THE WARSAW/HAGUE SYSTEM
219
passenger carries with him, but the limit of liability per passenger
was doubled to 250,000 gold francs.”8
C. Montreal Agreement, 1966
The United States, on November 15, 1965, gave notice of its in-
tent to denounce the Warsaw Convention on the grounds that the
liability limits were below those reasonably acceptable for the pro-
tection of its citizens’ interests.19 After much work and debate, a
compromise solution was found and accepted at a conference at
Montreal sponsored by the ICAO in May 1966,”0 according to which
the limits of liability of the carrier were raised to $75,000 inclusive
of legal fees and costs ($58,000 exclusive of legal fees and costs)
per passenger on a flight with an agreed stopping place in the
United States of America. Furthermore, the carriers agreed to waive
their rights to the defence available under Article 20(1) of the
Warsaw Convention and submit to a regime of absolute liability.
However, the Montreal Agreement was not adopted at the end of the
Conference and thus does not amount to an amendment of the
Warsaw Convention or of The Hague Protocol.2′
D. Guatemala City Protocol
This Protocols2 was intended to amend the Warsaw Convention
as amended by The Hague Protocol. It dealt mainly with the pro-
visions concerning passengers and baggage. Liability of the carrier
in respect of death or bodily injury of the passenger together with
its liability in respect of loss of or damage to checked baggage was
18 Ibid., Art. XI.
19 Under Art. 39(1) of the Warsaw Convention, any High Contracting Party
may denounce upon giving notification to the Government of the Republic
of Poland. Art. 39(2) provides that the denunciation will take effect six months
after notice is given.
(1966)
2 OAgreement Relating to Liability Limitations of the Warsaw Convention
[hereinafter
and The Hague Protocol, Agreement C.A.B. No. 18990
Montreal Agreement, 1966].
21 See Kreindler, Aviation Accident Law (1974), vol. 1, 12 A-02; Milde, Con-
solidation of the “Warsaw System” (1976) 1 Annals of Air and Space Law 257.
Milde defines the Montreal Agreement as “an ingenious private contractual
interpretation” of the Warsaw Convention. For a complete and detailed analysis
of the Montreal Agreement, see Lowenfeld & Mendelsohn, The United States
and the Warsaw Convention (1967) 80 Harv. L. Rev. 497.
22Protocol to Amend the Convention for the Unification of Certain Rules
Relating to International Carriage by Air, ICAO Doc. 8932/2 (1971) [hereinafter
Guatemala City Protocol].
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converted into absolute liability?93 Liability based on fault in cases of
loss of or damage to cargo was left intact. The Protocol further
simplified the provisions relating to passenger tickets and baggage
checks by introducing new rules enabling carriers to use automated
data processing systems in the carriage of passengers and baggage;
computerized information could be put into use instead of the usual
ticket and baggage check.24 While limits of liability were raised, it
was stipulated that these were to be unbreakable.25
E. The Montreal Protocols
The Iftternational Conference on Air Law held in Montreal from
3 to 25 September, 1975 adopted four protocols. Additional Protocol
No. 126 introduced the use of Special Drawing Rights instead of the
Poincar6 franc for the member states which belonged to the Inter-
national Monetary Fund. Those states which did not belong to the
International Monetary Fund and whose law did not permit the use
of Special Drawing Rights were entitled to use the Poincar6 franc,
but under the name of “monetary unit”.27 Additional Protocol No. 228
contained similar provisions with respect to The Hague Protocol. 9
Additional Protocol No. 330 provided for the same with respect to
the Guatemala City ProtocoL31 The Montreal Protocol No. 42 on
the one hand introduced the parallel provisions concerning the use
of Special Drawing Rights,u and on the other modified the provi-
sions of The Hague Protocol relating to the carriage of cargo to
bring them into parallel lines with those of the Guatemala City
Protocol where the rules relating to the carriage of passenger and
23Ibid., Art. IV, amending Art. 17(1) and (2).
24Ibid., Arts. 11(2) and 111(2), amending Arts. 3 and 4.
25Ibid., Art. IX, amending Art. 24(2).
26Additional Protocol No. I to Amend the Convention for the Unification
of Certain Rules Relating to International Carriage by Air, ICAO Doc. 9145
(1975).
27 Ibid., Art. II, amending Art. 22.
2sAdditionat Protocol No. 21 to Amend the Convention for the Unification
of Certain Rules Relating to International Carriage by Air, ICAO Doc. 9146
(19751.
29Ibid., Art. II, amending Art. 22.
30 Additional Protocol No. 3 to Amend the Convention for the Unification of
Certains Rules Relating to International Carriage by Air, ICAO Doc. 9148 (1975).
31 Ibid., Art. II, amending Art. 22.
32Montreal Protocol No. 4 to Amend the Convention for the Unification of
Ceriain Rules Relating to International Carriage by Air, ICAO Doc. 9148
(1975).
33Ibid., Art. VII, amending Art. 22.
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CONSOLIDATION OF THE WARSAW/HAGUE SYSTEM
221
baggage were dealt with: limits of liability in respect of cargo were
raised and were made unbreakable, the carrier was put under
absolute liability in respect of loss of or damage to cargo, with
limited defences, and automated data processing systems were
introduced for the carriage of cargo 34
F. Guadalajara Convention
In principle, this Convention 5
is not regarded as an essential
part of the Warsaw/Hague System,3 6 but as a supplement to it. It
extended the protection afforded to the contracting carrier by the
Warsaw Convention and The Hague Protocol to the carrier that,
without being a party to the contract of carriage by air, never-
theless actually performs the carriage.
Among these Conventions, Protocols and Agreements which
constitute the Warsaw/Hague System, those in force as of December
1979 are the Warsaw Convention of 1929, The Hague Protocol of
1955, the Guadalajara Convention of 1961, and the Montreal Agree-
ment of 1966.
The International Conference on Air Law held in Montreal in
1975 adopted the following Resolution:
The International Conference on Air Law,
WHEREAS
1. the Warsaw Convention for the Unification of Certain Rules Relating
to International Carriage by Air of 12 October 1929, The Hague Protocol
(1955), the Guadalajara Convention (1961), the Guatemala City Protocol
(1971) and the Montreal Protocols (1975) form a complicated system;
2.
the Legal Committee of the International Civil Aviation Organization
has not excluded from the basic work of the present Conference the
possibility of conducting further studies, with a view to combining the
above-mentioned instruments into a single Convention;
RESOLVES
1. that, in accordance with the established procedure, the necessary
measures be taken for the Legal Committee to study and prepare a
draft consolidated text which would make no change in substance to
existing instruments pertaining to the Warsaw Convention or that Con-
vention as amended or supplemented, except insofar as such change is
necessary to maintain consistency within the consolidated text;
34 Ibid., Art. IV, amending Art. 18.
‘1 The Convention Supplementary to the Warsaw Convention, for the Unifica-
tion of Certain Rules Relating to International Carriage by Air Performed by
a Person Other than the Contracting Carrier, ICAO Doc. 8181 (1961) [hereinafter
Guadalajara Convention].
36Fitzgerald, The Warsaw Convention as Amended by the Montreal Confer-
ence on International Air Law (1976) 1 Annals of Air and Space Law 49, 51.
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2.
that the said draft be examined at a Diplomatic Conference to be
convened by the Council of the International Civil Aviation Organization
in accordance with the established procedure as soon as possible.37
II. Preliminary proposals with respect to the consolidation
The Warsaw Convention of 1929 was drafted and prepared when
international civil aviation, both as an industry and as a commercial
venture, was in its infancy. It is very doubtful that the draftsmen of
the original Convention ever foresaw the level that international
civil aviation would reach or even how smoothly and quickly tech-
nological and commercial evolution (with its concomitant perils)
would advance. Such a rapid evolution brought with it the need for
new regulation. -Therefore, it is not surprising that the Warsaw
Convention was subjected to more modifications than are normally
suffered by similar conventions existing in the transportation law
area.
Although many of the amendments to the Warsaw Convention
are not yet in force, they reflect the desire for change in important
areas of international aviation. It may be appropriate to state that
a certain line can be drawn between the achievements and sources
of inspiration of “technicians” in international forums and those
of politicians acting in the parliaments of their respective countries.
It is submitted that the thoughts and ideas reflected in the work of
international forums or their subdivisions more accurately represent
the requirements of international civil aviation than do the attitudes
of politicians casting votes in their national parliaments. As a result,
one can conclude that each instrument amending or supplementing
the Warsaw Convention, whether or not it is in force, corresponds
both to the requirements of aviation –
necessitated by the occur-
rence of ever-increasing developments in the technological and com-
mercial spheres –
and to the requirements felt by the general public
within a time span of forty-six years (1929 to 1975). Accordingly,
efforts towards consolidation of the Warsaw/Hague System should
consider all the provisions contained in the aforementioned docu-
ments in order to achieve a modern version of the allegedly out-
moded Warsaw/Hague System. However, of the provisions contain-
ed in the different documents, only those formulated to reflect trends
toward modernization ought to be included in the consolidation.
Consequently, the trend toward basing the proposed consolida-
tion only on the provisions of documents now in force should not be
371CAO Doc. 9144 (1975).
19791
CONSOLIDATION OF THE WARSAW/HAGUE SYSTEM
223
given prominence, as this will result only in the amalgamation of the
original Warsaw Convention and The Hague Protocol, with the
possible inclusion of some relevant portions from the Guadalajara
Convention 8 This so-called modernization would in fact be a re-
trogression to 1955 or 1961 at the latest. Such a result could not be
deemed a consolidation, since the prevailing regime is already the
Warsaw Convention as amended by The Hague Protocol. Also, since
the International Conference, in the opening clause of its Resolution,
expressly recited all of the Conventions and Protocols and expressed
the desire of combining all these instruments into a single conven-
tion, and since the Resolution in the resolving clause referred to
the instruments amending or supplementing the Warsaw Conven-
tion, whether actually in force or merely in existence, a consolidation
which took into account only the Warsaw Convention and The
Hague Protocol would do so in disregard of the Resolution.
Pursuant to the principle laid down by the Resolution, no new
document with novel rules and provisions should be devised. The
International Conference did not anticipate a new convention but
provided simply for the consolidation of the Warsaw/Hague System
by combining the various rules embodied in different documents.
However, it should be possible nonetheless to introduce provisions
that would clarify, ‘modernize, streamline and harmonize the pros-
pective document. This is surely within the spirit of the Resolution,
since complaints commonly arise over the complicated nature of
the present system. Accordingly, any obscure or complicated pro-
visions should be rewritten or reformulated. In addition, an attempt
should be made to standardize the vocabulary used; at present,
similar concepts are frequently expressed in different words.
With respect to method, one possibility open to any draftsmen
burdened with the task of preparing a text is to select the parts and
portions from each instrument referred to in the Resolution which
represent the most modem trends. Another and more practical
method might be to take the latest instrument first and work back-
wards, filling in the gaps. However, while pursuing such a method
one must be careful to keep strictly within the structure of the
instrument lest superfluous items or duplications be inserted. More-
over, each rule or clause should be analysed with a view to including
only those which modernize the* Warsaw/Hague System. In any
38 The proponents of this view admit that the consolidated text may include
some provisions of the instruments of the Warsaw/Hague System which refl, ct
the generally acceptable trends of carriage by air. Such a theory, being i-i-
coherent in itself and inconsistent with the basic idea, should be rejected.
McGILL LAW JOURNAL
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event, in matters of passengers and baggage, the Warsaw Convention
and its amendments in The Hague Protocol, the Guatemala City
Protocol and the Additional Protocol No. 3 of Montreal will con-
stitute the essential components of the consolidation. In matters of
cargo, the Warsaw Convention and its amendments in The Hague
Protocol and the Montreal Protocol No. 4 will provide the elements
for the consolidated text.
A controversial subject involves the limits of flexibility to be
granted the draftsmen in rewording or reformulating the clauses or
phrases selected from the various instruments. Some guidelines
are not in dispute. Each concept or principle should be expressed
n the same words or phrases throughout and each word or phrase
should bear the same meaning whenever it is used. Detailed provi-
sions which reflect some underlying concept should in certain cases
be added. Some clauses or phrases can be rewritten more simply
and dearly.
However, should the draftsmen of the consolidated text take
into account the interpretation and application of the provisions of
the Warsaw/Hague System in the doctrine and jurisprudence, and
should they use such material as a means of clarification and even
modernization? Such an option may well bring the Warsaw/Hague
System into line with current trends without diverting from estab-
lished fundamental principles.
If this option were embraced, the draftsmen would have to be
capable legal scholars, able to discern trends and reconcile diverging
viewpoints.
III. Studies made in relation to the consolidation of the
Warsaw/Hague System
Pursuant to the Resolution of the Diplomatic Conference, 9 the
Council of ICAO decided to amend the general work programme of
the Legal Committee to include, as the item of the highest priority,
a “Study of the consolidation of the instruments of the ‘Warsaw
system’ into a single convention”. 0 It furthermore requested the
Chairman of the-Legal Committee to establish a special subcom-
mittee to study this question and report to the twenty-second session
of the Legal Committee to be held in Montreal in 19764 The Sub-
committee thus formed met in Montreal in the late spring of 1976
39 ICAO Doc. 9144 (1975).
40 ICAO Council, Minutes 86/1-20, ICAO Doc. 9158-C/1028 (1976), 41.
41bid., 56.57.
1979]
CONSOLIDATION OF THE WARSAW/HAGUE SYSTEM
225
and prepared a draft consolidated convention, which it submitted
to the Legal Committee.”
In December 1976, the Council of ICAO considered the Report
of the Legal Committee and decided in accordance with the opinion
expressed therein to postpone the preparation of the consolidated
text.”4
It directed the Legal Bureau to prepare two draft texts of
convenience, one to consolidate the provisions of those instruments
in force in the Warsaw/Hague System and the other to consolidate
all the instruments of the Systeni.”4
The drafts prepared as a result of the studies conducted pursuant
to the Resolution are as follows.
A. Draft consolidation of Warsaw regime
This text was prepared by the IATA Legal Committee and sub-
mitted to the Subcommittee established by the Legal Committee
of ICAO.” It was modelled on the system and framework of the
original Warsaw Convention, except for the insertion of the relevant
provisions of the Guadalajara Convention as Chapter V.
In the text, the provisions of the Warsaw Convention as amended
by The Hague Protocol, the Guatemala City Protocol and the Addi-
tional Protocol No. 3 of Montreal have been given prominence
with respect to the carriage of passengers and baggage (including
the liability of the carrier connected therewith). The provisions of
the Warsaw Convention as amended at The Hague and by Protocol
No. 4 of Montreal regulate cargo and the carrier’s liability in the
carriage of cargo. Necessary modifications and amendments were
made with the aim of creating a consistent and coherent system.
Procedural provisions dealing with ratification, accession, entry into
force and like matters are not dealt with in this draft. However,
the Committee recommended that the final form of the convention
should contain an article similar to Article XX of the Guatemala City
ProtocoL47
42IATA Observer, Report on ICAO Legal Subcommittee, IATA Doc. 2 July
1976, Ref. 3401B, App. C.
43ICAO Doc. 9222-LC/177-1 (1979), 7-8.
44 ICAO Council, Minutes 89/1-20, ICAO Doc. 9189-C/1034 (1977), 112.
45 ICAO State Letters, Ref. LE 3/29-77/101 (1977).
46Supra, note 42, App. B.
47 See ibid., 3.
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B. Draft consolidated convention
This document, based on the test submitted by the ICAO Legal
Bureau,48 was prepared by the Subcommittee. The provisions of the
Warsaw Convention as amended at The Hague, at Guatemala City
and by the Additional Protocol No. 3 of Montreal were taken into
account in respect of passengers and baggage. The provisions of the
Warsaw Convention as amended at The Hague and by the Montreal
Protocol No. 4 were followed in respect of cargo. The Subcommittee
also included certain provisions of the Guadalajara Convention in
Chapter IV of the draft.
The Subcommittee, instead of regulating the regime of the
carrier’s liability under an independent and separate heading to en-
compass all the contingencies –
as is the case in all of the existing
instruments –
chose to deal with the matters of liability in two
distinct chapters, one relating to the carriage of passengers and
baggage and the other relating to the carriage of cargo 9 It is sub-
mitted that this arrangement leads to unnecessary duplication. The
Subcommittee has referred to article 58 in defence of its arrange-
ment; 0 however, the proposition contained in that article does not
seem to be an appropriate one either.0′
C. Texts of convenience
The first text of convenience was compiled by the ICAO Legal
Bureau 22 It consists of a transcription of the Warsaw Convention
as amended by The Hague Protocol.
The second text of convenience was also prepared by the ICAO
Legal Bureau.P This document combines the Warsaw Convention
regulations on carriage of passengers and baggage as amended at
The Hague, at Guatemala City, and by the Additional Protocol No. 3
of Montreal with the Warsaw Convention regulations on carriage
of cargo as amended by The Hague Protocol and by Montreal Pro-
tocol No. 4. While necessary amendments and adjustments were
made, the Guadalajara Convention was not dealt with, nor were
the final clauses and procedural provisions given consideration.
48 Ibid., App. C.
49 Ibid., ch. II, Artg. 5-13 and ch. III, Arts. 26-32.
50 Supra, note 46, 2.
51 Art. 58 permits states to declare at the time of ratification or accession
that they shall not be bound by ch. II (Carriage of Passengers & Baggage) or
ch. III (Carriage of Cargo).
52 Supra, note 45.
” Ibid.
1979J
CONSOLIDATION OF THE WARSAW/HAGUE SYSTEM
227
IV. Comments and suggestions on the consolidation of the
Warsaw/Hague System
When a critical analysis is made of the provisions contained in
the various instruments ‘pertaining to the Warsaw/Hague System,
some clearly discernible alterations in the basic concepts can be
distinguished. A discussion of whether such changes constitute a
develoiment does not fall within the scope of this article, nor do
the philosophical, social or economic causes or aspects of any alter-
ation. Rather, this article will discuss certain policy considerations
and make a number of concrete suggestions for the improvement
of the draft consolidations.
A. Policy considerations
The trends in the present and future regime of the Warsaw/
Hague system can be analyzed and evaluated in terms of two dif-
ferent policy considerations: protection of the general public and
protection of civil aviation. While the transition from liability
based on fault to absolute liability is concerned mainly with the
protection of the public, it relates as well to the interests of civil
aviation insofar as a regime of absolute liability may serve to reduce
the inclination toward litigation. However, limited liability coupled
with. unbreakable limits better benefits the civil aviation interest
in that this regime affords the airlines protection against unbearable
risks and hence serves as an incentive to investment and develop-
ment. It also allows the airlines to calculate with some accuracy
their potential exposure to liability, and thus to avoid the extra ex-
pense involved in obtaining insurance to cover all contingencies.
This operates to the benefit of the travelling public since the cost
of insurance coverage to be distributed is less than it would be
under a regime of unlimited liability.
Limitation of liability with unbreakable limits, even in cases of
wilful misconduct,45 would enhance the out-of-court settlement
option. However, it is essential that the limit be fixed so as to be
of substantial value to a large percentage of the claimants.
A trend to simplifying documentation is of undeniable advantage
to the airlines. Nevertheless, the time and money saved through
such simplification reduces the operating costs of the airlines, and
64 Compare Orr, Fault as the Basis of Liability (1954) 21 J. Air L. and Com.
399, 404 and Hickey, Breaking the Limit – Liability for Wilful Misconduct
Under the Guatemala Protocol (1976) 42 J. Air L. arid Com. 603, 608.
McGILL LAW JOURNAL
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the resulting saving may be passed on to the oustomer.”5 The in-
troduction of automated data processing systems would be of major
advantage to the airlines and to the industry in general. The techni-
cal developments engendered ultimately will be beneficial to the
travelling public.O
B. Suggestions for improvement
Of the existing draft texts, that prepared by the Legal Com-
mittee of IATA (submitted to the Subcommittee of the ICAO Legal
Committee) 7 is the most comprehensive and has the additional
merit of adhering to the structure of the original Warsaw Conven-
tion and including the relevant provisions of the Guadalajara Con-
vention. 8
1. Headings
The IATA Draft seems to appreciate the undeniable usefulness
of employing headings, as it retains them in Chapters I, III, IV, V
and VI. However, headings are omitted in Chapter II and that
chapter is no longer divided into sections. It is submitted that the
omission of these headings is not justified by the blanket provision
of “other means”.
The introduction of the words “other means” envisages use of
automated data processing systems in the carriage of passengers,
5 Gr6nfors, Simplification of Documentation and Document Replacement
(1976) 3 Lloyd’s Maritime and Commercial L.Q. 250.
56See generally Drion, Limitation of Liabilities in International Air Law
(1954); Gr~nfors, Air Charter and the Warsaw Convention (1956), 70; Fitzgerald,
-supra, note 36; Matte, The Most Recent Revision of the Warsaw Convention:
the Montreal Protocols of 1975 (1976) 11 European Transport Law 822; Hickey,
supra, note 54; Sand, Risk in the Air and the Myth of Fault (1967) 33 J. Air L.
and Com. 594; Swart, Prospects of Amendment of the Warsaw Convention
(1967) 33 J. Air L. and Com. 616; Legal Committee of ICAO, “Report on Revision
of the Warsaw Convention” in International Conference on Private Air Law
(1955). vol. II, 93, ICAO Doc. 7686-LC/140; Subcommittee of the Legal Com-
mittee, Report on the Revision of The Warsaw Convention as Amended by
The Hague Protocol (1969), vol. 1, 2, ICAO Doc. 8839-LC/158-1; Legal Committee,
Documents ICAO Doc. 9131-LC/173-2 (1975), 112; IATA, Report on Conference
of Airline Lawyers (1974).
57 Supra, note 42, App. B.
5 8 Although provisions relating to ratification, accession, and entry into
force are not dealt with, these provisions are more or less standard. Some
debate revolves around the number of ratifications required and the time
limits for entry into force. These matters are expected to be resolved by
diplomatic conference.
19792
CONSOLIDATION OF THE WARSAW/HAGUE SYSTEM
229
baggage and cargo. 9 However, the words “other means”, although
principally referring to the anticipated use of electronic devices,
cannot be restricted to them. This is a very broad reference to cover
the possible employment of innumerable methods still to be de-
velopedPO Therefore, the words “other means” do not necessarily
refer only to electronic systems. Even in cases of automation, Article
5(2) provides for a cargo receipt –
documentary evidence having
legal consequences. 6’ Therefore, since automated data is not the only
process envisaged and encompassed by the words “other means”,
contemplation of the use of this method cannot serve as a justifica-
tion for omitting the headings from Chapter II.
Since the word “document” might be too narrow to encompass
is to be pre-
the general sense of the chapter, “documentation”
ferred. Accordingly, the heading of Chapter II should be: “Docu-
mentation Relating to Carriage of Passengers, Baggage and Cargo”,
and the headings for the respective sections should be: “Documenta-
tion Relating to Carriage of Passengers”, “Documentation Relating
to Carriage of Baggage” and “Documentation and Other Provisions
Relating to Carriage of Cargo” 0 2
2. Various articles
a) Article 2(2) and (3)
The underlying concept of the Warsaw/Hague System is to
regulate the contractual relationship between the carrier and the
passenger or consignor. Except by express provision to the contrary,
the articles of the Convention are applicable only to the parties to
a contract of carriage: thus in the carriage of postal items, the
carrier enters into a contractual relationship with the local postal
administration and not with the individuals whose parcels are
carried. Although the Warsaw/Hague System can be applicable
between the carrier and the concerned postal administration, it is a
well established policy of the Convention to give prominence to the
rules which exclusively govern the relation between the postal
69 The passenger ticket, baggage check and air waybill are nevertheless
retained, and data processing systems are given a secondary role: supra, note
57, Arts. 4 and 14.
(0 See Matte, supra, note 56, 827.
61 See supra, note 57, Arts. 8, 9, 10, 11, 12(3) and 15(2).
62Ch. II, Sec. III of the Warsaw Convention is headed “Air Waybill”.
Montreal Protocol No. 4 substituted “Documentation relating to cargo”. How-
ever, this section is not confined to documentation matters, but also re-
gulates the rights and obligations of consignor and consignee; thus, a broader
heading is appropriate.
McGILL LAW JOURNAL
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authorities and the carriers. Article 2(2) and (3) as amended by
Montreal Protocol No. 4 gives effect to this policy and the consoli-
dation should incorporate this version.
b) Articles 3 and 4
The wording of Article 5(2) as established by Montreal Protocol
No. 4, mutatis mutandis, is to be preferred to the draft’s proposal for
Articles 3(2) and 4(2). In this way the travelling public will be
afforded a measure of protection, and will not be forced to accept
some method which it might not find suitable in a particular case.p
The choice given to the consignor in respect of the goods shipped
should also be granted to the passenger. Furthermore, in cases
where the “other means” are used, some kind of document similar
to the “receipt for the cargo” should be given to the passenger if
and when requested.
For the sake of consistency, it is proposed that Article 5(3) of
the IATA Draft (reproducing article 5(3) of Montreal Protocol No.
4) should then be included as a new third paragraph to Articles 3
and 4. The present paragraph 3 in each article would then become
paragraph 4. Through such modifications, basic principles relating
to the documentation of the carriage of passengers, baggage and
cargo will be brought into greater harmony. Needless to say, when
Article 5(2) of Montreal Protocol No. 4 replaces the present Article
3(2) and 4(2), alterations in the wording should be made to indicate
that the paragraph relates to passenger or baggage, as the case
may be.
03 Except for cases in which the contrary is provided, contracts of carriage
generally, and contracts of carriage by air in particular, can be concluded
orally. However, the passenger ticket, the baggage check and the air waybill
are well established documents, and serve certain purposes due to the
intricacies involved in air transportation. While the airline ticket constitutes
evidence of the contract of carriage and embodies the general conditions of
the contract, it also bears a promise to repay: see Zethraeus, An essay on
‘Panair do Brasil’ Tickets (1976) 1 Air Law 286. In addition to the disruptions
which dispensing with tickets might cause to travellers, it might be disad-
vantageous for the airline to rely only on the automated systems. Therefore,
having some sort of document in hand would likely prove useful.
.
64 The suggested wording of Arts. 3 and 4, combining the IATA Draft and
the Montreal Protocol No. 4, is as follows:
Article 3
1.
2. Any other means which would preserve a record of the information in.
dicated in (a) and (b) of the foregoing paragraph and the carriage to be
performed may, with the consent of the passenger be substituted for the
delivery of the document referred to in that paragraph. If such other
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CONSOLIDATION OF THE WARSAW/HAGUE SYSTEM
231
c) Articles 5-16
The IATA Draft reproduces Articles 5 through 16 of Montreal
Protocol No. 4. It is submitted that this is the best approach. How-
ever, for the sake of consistency, Article 8 of the Draft should be
incorporated into Article 5(1) as subparagraphs (a), (b), and (c).
The words “and the receipt for the cargo” in the first line of the
present Article 8 should be deleted and the first paragraph of Article
5 should be rewritten to accord with its counterpart in Articles 3
and 4 65
means are used, the carrier shall, if so requested by the passenger, deliver
to the passenger a voucher permitting identification of the carriage and
access to the information contained in the record preserved by such
other means.
…
3. The impossibility of using, at points of transit and destination, the other
means which would preserve the record of carriage referred to in para-
graph 2 of this article does not entitle the carrier to refuse to accept the
passenger for carriage.
4. …
Article 4
1.
2. Any other means which would preserve a record of the information in-
dicated in (a) and (b) of the foregoing paragraph and the carriage to be
performed may, with the consent of the passenger be substituted for the
delivery of the document referred to in that paragraph. If such other
means are used, the carrier shall, if so requested by the passenger, deliver
to the passenger a voucher permitting identification of the carriage and
access to the information contained in the record preserved by such other
means.
4.
3. The impossibility of using at points of transit and destination the other
means which would preserve the record of carriage referred to in para-
graph 2 of this article, does not entitle the carrier to refuse to accept the
baggage for carriage.
…
By the amendments made in Arts. 3, 4 and 5, the requirement of notice in
the respective documents of carriage has been eliminated. However, it is
open to debate whether contracting states can still impose on the airlines,
for carriages affecting their countries, the obligation to give notice of the
applicability of the limitation of liability. This possibility militates against
the goal of achieving unification in international air law. On the other hand,
the Montreal Agreement, 1966 is valid and binding on the signatory airlines.
It might therefore be appropriate to suggest that this subject be clarified at
the next diplomatic conference.
105 The suggested wording of Art. 5 combined with Art. 8 is as follows:
Article 5
1. In respect of the carriage of cargo an air waybill shall be delivered, con-
taining:
(a) an indication of the places of departure and destination;
(b)
if the places of departure and destination are within the territory
McGILL LAW JOURNAL
[Vol. 25
In Article 10, the Draft makes an express reference to the “other
means”. If any other means, method, usage, form is simply envisaged
as having a secondary or supplementary nature and is therefore to
be used only to replace the basic documents (the passenger ticket,
baggage check or air waybill), then such “other means” shall be
covered and consequently be bound by the provisions regulating or
pertaining to the basic document. If, on the other hand, “other
means” is intended to create an additional independent entity, the
need then becomes apparent to regulate its legal impact. Although
the former view appears to be the correct one, it may be of practical
importance to incorporate the term “other means” into all relevant
provisions, including Articles 11, 12(3) and 15(2).
d) Article 19
The liability of the carrier for the damages sustained in cases
of death or personal injury to a passenger was converted from fault
liability to strict liability by Article IV of the Guatemala City
Protocol. In respect of damages sustained by the destruotion or loss
of or damage to cargo, absolute liability to replace liability based
on fault was introduced by Article IV of the Montreal Protocol No.
4. However, both Protocols retained the regime of liability based
on fault in case of damages occasioned by delay. 6 Accordingly, the
fundamental principle that the liability of the carrier for damages
caused by delay is fault-based can be expressed in a single article.
Such article could be formulated along the lines of the Guatemala
City Protocol and the Montreal Protocol No. 4, with the necessary
amendments. The IATA Draft preferred to take Article 19 of the
Warsaw Convention and append to it Article 20 as amended by
Article V of Montreal Protocol No. 4. This formulation is equally
acceptable, since the opening clause establishes the liability of the
carrier and the remainder of the article sets out the available
defences0
of a single Contracting Party, one or more agreed stopping places
being within the territory of another State, an indication of at least
one such stopping place; and
(e) an indication of the weight of the consignment.
2….
3.
..
6 See Guatemala City Protocol, Art. VI; Montreal Protocol No. 4, Art. V.
07 The concept of delay in respect of Art. 19 has been the subject of some
debate and controversy. Since the liability of the carrier in respect of delay
has to be ascertained with reference to a time factor, the limits within which
Art. 19 is applicable need clarification. To this end, a reference to time
limits describing the beginning and the end of the period restricting the
1979]
CONSOLIDATION OF THE WARSAW/HAGUE SYSTEM
233
e) Article 20
An analysis of the provisions of the Warsaw/Hague System
regulating the legal consequences of contributory negligence de-
monstrates that, as the regime of liability progressed from fault
toward absolute liability, the defence of contributory negligence
was reformulated in order to afford the carrier a more secure
defence. Article 20 of the IATA Draft clearly reflects this trend and
should be maintained.
f) Article 21
For the sake of consistency, it is proposed that Article 21(2) (a)
be rewritten as follows:
In the carriage of cargo the liability of the carrier in the case of des-
truction, loss, damage or delay, is limited…
In this manner the ground for liability would be expressed in
words parallel to those used in the first paragraph.
The hazards inherent in Article 21(4) and (5) should perhaps
be noted at this point. The Montreal Conference (Article 22 of the
Montreal Additional Protocol No. 3 and Montreal Protocol No. 4)
decided to abandon the Poincard franc and with it the gold standard,
and introduced instead the Special Drawing Right as the measure
determining the limit of liability. Multiple devaluations, existence
of a double market for gold, abolition of the convertibility of the
dollar, and fluctuations in the market were some of the reasons
behind the introduction of the SDR into the Warsaw/Hague System
and consequently into some other international conventions. 8 How-
ever, Article 21 in its present form is far from providing the remedy
for the contingencies which the drafters were anxious to contain.
The gold standard still exists, though under a different name and
with some restrictions. Therefore, the dangers connected-with the
application of the gold value are still imminent. The last sentence
of Article 21(5) allows for different computations in determining the
compensation to be paid. In addition, Article 21(4) permits different
liability of the carrier in Arts. 17(1) and (2) and 18(3) can be considered.
On the other hand, the theoretical basis of this provision is a defence based
on the concept of force majeure. See in general Shawcross & Beaumont,
Air Law 3d ed. (1966), 431; Lopez, Air Carriers’ Liability in Cases of Delay
(1976) 1 Annals of Air and Space Law 109. For the scope of the provision
relating to liability for delay, also see Matte, supra, note 56, 832-33.
08 See Bristow, Gold Franc-Replacement of Unit of Account (1978) 1 Lloyd’s
Maritime and Commercial L.Q. 31, 35-38; see also Matte, supra, note 56, 836;
Wijffels, Gold Value and Special Drawing Right (SDR) With Regard to
Total Vessel or Tonnage Limitation (1977) 12 European Transport Law 195.
McGILL LAW JOURNAL
[Vol. 25
calculations of the SDR as well. When these two provisions are taken
together with Article 27, one might argue that there is still sufficient
inducement for forum-shopping for damages. It is submitted that it
is open to debate whether or not it is appropriate to retain Article
22(2) of the IATA Draft, the origin of which dates back to Article
XII of The Hague Protocol. This article provides that the carrier
is entitled to evade liability if it proves itself to have been without
fault. The anomaly is that the provision is found in an instrument
providing for absolute liability of the carrier, with only limited
defences in respect of cargo. In principle, to allow the carrier to
insert provisions excluding itself from the liability provided for
or fixing lower limits than those established by the Convention is
to contradict the essence of the liability regime underlying the latest
phase of the Warsaw/Hague System. Therefore, Draft Articles 22(2)
and 18(2) should be examined together. Article 22(2) should either
make a reference to the whole of Article 18(2) or be deleted. A
reference in Article 22(2) only to Article 18(2)(a) is inconsistent
and superfluous as it allows the carrier to insert reservation clauses
for cases in which it already had the right to avoid liability by
proving certain facts. Since a general reference to the entirety of
Article 18(2) is contradictory to the fundamental concept of the
present liability regime, it is submitted that Article 22(2) should be
deleted.
h) Articles 25, 40 and 43
A reference in paragraph 1 of Article 25 to the receipt for cargo
or the information preserved by “other means” would be in order.
Previous comments on Article 22(2) apply equally to Article 40(2).
Article 40(3) and Article 42, though reflecting the same principle,
differ in their wording since each is based on different sources. It is
submitted that Article 40(3) should be rewritten, using the wording
of Article 42. With respect to the suggestions relating to Articles
3, 4 and 5, a reference to the new paragraph 3 of Articles 3, 4 and 511
should be inserted in Article 43.
Finally, the attention of future drafters and negotiators should
be drawn to the following point. At present the Warsaw/Hague
System consists of nine instruments.70 Ratification of different in-
struments by different states gave rise to the existence of various
6 See supra, note 64.
7OMilde, supra, note 21, 259, counts them as eight. He does not take into
account the Montreal Agreement, 1966.
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CONSOLIDATION OF THE WARSAW/HAGUE SYSTEM
235
combinations of regimes in force among different states.P The
provisions relating to ratification and entry into force of the pro-
posed consolidated instrument together with those relating to the
denunciation of the instruments now in force ought to be drafted
with utmost precision, so that the transition from the present com-
plicated -situation to the new regime will be as smooth as possible.
The proposed consolidation of the Warsaw/Hague System might
be a little revolution in international civil aviation. It
is, how-
ever, a sacred duty to see that it takes place with as little damage
to the existing structure as possible.
71 For a splendid expos6 of how a striking uniformity is achieved today,
consult Mankiewicz, A galaxy of unified laws will replace the uniform regime
created in 1929 in Warsaw or The death-blow to the uniform regime of liability
in international carriage by air (1976) 1 Air Law 157.
