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Published online by Cambridge University Press: 09 March 2016
At its seventeenth session held in February-March 1970, the Legal Committee of the International Civil Aviation Organization (ICAO) adopted the final text of new draft rules governing the liability of the air carrier in respect of the international carriage of passengers by air. Since 1965, ICAO has been working on the preparation of these draft rules which, when ultimately adopted by a diplomatic conference, signed and ratified, will constitute a farreaching revision of the provisions of the widely accepted Convention for the Unification of Certain Rules relating to International Carriage by Air (Warsaw 1929) as amended by the Hague Protocol of 1955. In previous notes in this Yearbook the writer summarized discussions on the Warsaw rules in the international aviation community from late 1965, when the United States of America filed its notification of denunciation of the Warsaw Convention, until early 1968, when the ICAO Council decided to hand over the task of revision to the ICAO Legal Committee. The latter body having finished its work on revision early in March 1970, the ICAO Council lost no time in convening a diplomatic conference for February-March 1971. This conference will have the task of preparing and adopting the definitive instrument revising the Warsaw Convention as amended by the Hague Protocol.
1 For the text of the Warsaw Convention, see Schedule One to The Carriage by Air Act, R.S.C. 1952, c. 45; 137 L.N.T.S. 11, No. 3145. For the text of the Hague Protocol, see Schedule to an Act to Amend the Carriage by Air Act, 12 Eliz. 2, c. 33 (Canada 1963); 478 U.N.T.S. 371, No. 6943.
2 FitzGerald, Gerald F., “Liability Rules in the International Carriage of Passengers by Air and the Notice of Denunciation of the Warsaw Convention by the United States of America,” (1966) 4 Canadian Yearbook of International Law 194–215CrossRefGoogle Scholar; FitzGerald, Gerald F., “Current Developments in the Revision of Rules Governing the Liability of the Air Carrier in respect of the International Carriage of Passengers by Air,” (1968) 6 Canadian Yearbook of International Law 188–211.CrossRefGoogle Scholar
3 This represents a slight delay in the target date of 1970 set by the ICAO Assembly in Resolution A16-35 1968).
4 This is in accordance with a list issued by IGAO and based on information received from the government of the Polish People’s Republic which is the depositary of the Warsaw Convention.
5 International Conference on Private Air Law. The Hague, September 1965. Protocol to Amend the Convention for the Unification of Certain Rules relating to International Carriage by Air Signed at Warsaw on 12 October 1929. Doc. 7686-LC/140. Two volumes: I — Minutes; II—Documents.
6 This is Poincaré gold franc which consists of 65½ milligrams of gold at the standard of fineness nine hundred thousandths. All dollar figures given herein are approximate and are expressed in United States dollars.
7 Convention, Artide 3(a).
8 Ibid., Artide 25.
9 Ibid., Artide 20(1).
10 Ibid., Artide 21.
11 Protocol, Artide XI (Amending Article aa ( ι ) ).
12 Ibid., Article III (Amending Article 3(2)). Here it may be noted that United States courts have held that, even under the Warsaw Convention, failure to include in a passenger ticket an adequate form of notice concerning the limitation of liability is tantamount to an inadequate delivery of the ticket with a consequent loss of the limit of liability. The most celebrated case in this regard is that of Lisi v. Alitalia-Linee Aeree Italiane, 353 F.Supp. 837(S.D.N.Y. 1966); 370 F.ad 508 (ad Cir. 1966); 9 Avi. 18,374. Alitalia-Linee Aeree Italiane v. Lisi et al 88 S.C. 1193 (1968) (US Sup), 10 Avi. 17,785 (judgment affirmed by an equally divided court).
13 Supra note 4.
14 In a case arising under the Montreal Agreement it was held that a ticket that gave notice of the applicability of the Warsaw Convention in eight point print (the notice in the Lisi case was in four and a half point print) and was placed in an envelope which on its face, when opened to remove the ticket, contained a reference to the Convention in quite large type complied with the notice requirements of the Convention. See Millikin Trust Co. v. Iberia Lineas Aéreas de España, S.A., 11 Avi. 17,331. That the Montreal Agreement has not produced the hoped-for results of reducing litigation and encouraging prompt settlements is seen from the following statement of the General Counsel of the Air Transport Association of America: “Analysis of the most recent settlements shows a marked decline in the percentage of claims settled during the year of the accident. Unquestionably, this has resulted in large part from claimants’ lawyers holding off making a settlement in an attempt to parlay the automatic Montreal payment into a large award under Warsaw.” See Stephen, John E., “The Reshaping of the Warsaw Convention,” Airline Management and Marketing Including American Aviation (October 1969).Google Scholar
15 See ICAO Doc. 8584-LC/154-1-2.
16 For two reports of the Panel of Experts, see Doc. 8839-LC/158-2, at 73–82 and 123–33. For further details concerning Doc. 8839, see infra note 18.
17 Resolution A16-35.
18 The complete documentation published in connection with the meetings of the subcommittee is found in the following two volumes prepared for the seventeenth session of the Legal Committee: Subcommittee of the Legal Committee on the Question of the Revision of the Warsaw Convention as Amended by the Hague Protocol, Doc. 8839-LC/158-1, Volume I — Reports and Documentation 324 and Doc. 8839-LC/158-2, Volume II — Documentation 231.
19 For a description of the United States plan, see Doc. 8839-LC/158-1, at 27–34 and that of IATA, see Doc. 8839-LC/158-1, at 15–26. For a comment on the United States and IATA willingness to accept a rule of absolute liability, see Kean, A.W.G., “Strict Liability, Unbreakable Limits and the Warsaw Convention,” (1970) 19 Int’l & Comp. L.Q. 124–27.CrossRefGoogle Scholar
20 For further information on these points, see the report of the second session of the subcommittee in Doc. 8839-LG/158-1, at 2–5, 11–12.
21 ICAO Doc. 7364. The text of Article 12 reads as follows:
“(1) If the person who suffers damage proves that it was caused by a deliberate act or omission of the operator, his servants or agents, done with intent to cause damage, the liability of the operator shall be unlimited; provided that in the case of such act or omission of such servant or agent, it is also proved that he was acting in the course of his employment and within the scope of his authority.
“(2) If a person wrongfully takes and makes use of an aircraft without the consent of the person entitled to use it, his liability shall be unlimited.”
22 This text reads as follows: “Nothing in this Convention shall prejudice the question whether a person liable for damage in accordance with its provisions has a right of recourse against any other person.”
23 The text of Article 19-A reads as follows: “The carrier shall be liable for damage occasioned by delay in the carriage of passengers unless he proves that he and his servants and agents have taken all necessary [reasonable] measures to avoid the damage [delay] or that it was impossible for him or them to take such measures.” The words in square brackets represent alternative versions on which the subcommittee took no decision.
24 See Doc. 8865 LC/159, Summary of the Work of the Legal Committee during Its Seventeenth Session 35–55.
25 LC/Working Draft No. 745–15.
26 In Annex 14 (Aerodromes) to the Convention on International Civil Aviation, the expression “movement area” is defined as “that part of an aerodrome intended for the surface movement of aircraft, including the manoeu-vering area and aprons.”
27 Compare I Shawcross and Beaumont on Air Law 441–42 (3rd ed. London, 1966), where it is pointed out that the words “In the course of any of the operations” of embarking or disembarking appear to envisage a wider period of liability than the time during which the passenger is ascending or descending the steps of the aircraft and probably include the time during which the passenger’s movements are under the control of the carrier for the purpose of embarking and disembarking.”
28 ICAO Doc. 7364.
29 On the other hand, the majority of the subcommittee, it may be recalled, had contemplated allowing the defence of armed conflict, although there was a difference of opinion among the majority as to whether civil war should be treated in the same way as armed conflict.
30 Much of the documentation set forth in Doc. 8839-LC/158-1 and 2 contains economic information relating to the Warsaw/Hague Liability limits.
31 Although the subcommittee did not subscribe to the idea of dual limits, unless there was failure to reach consensus on a single limit, the delegate of the Czechoslovak Socialist Republic proposed in the Committee that consideration be given to the question of dual limits. (Legal Committee, 17th Session, Minutes of 5th Meeting, par. 7).
32 For a brief description of the approach of United States courts to Article 25 of the Warsaw Convention, see FitzGerald, Gerald F., “Current Developments in the Revision of Rules Governing the Liability of the Air Carrier in respect of the International Carriage of Passengers by Air,” (1968) 6 Canadian Yearbook of International Law 204–07.Google Scholar
33 In 1929, the scheduled international airlines of the world carried a mere trickle of passengers; in 1951, they carried 7,000,000 international passengers and, in 1969, 64,000,000 international passengers. Excluded from the 1951 and 1969 totals are the People’s Republic of China, the Soviet Union and other states which were not ICAO members in those years.
34 In LC/Working Draft No. 745-2(20), the United States recommended that in view of recent average annual cost of living increases and average annual growth in income of international air travellers, consideration be given to providing for a straight four percent annual increase in the limit rather than a two and one-half percent increase.
35 Article 41 of the Convention gives the French government a special role in the convening of a conference in order to consider improvements in the Convention. Any state party to the Convention desiring a conference must communicate with the government of France which will take the necessary measures to make preparations for the conference. In practice, the conferences of 1955 (The Hague), 1961 (Guadalajara) and 1971 (Guatemala City) have, with the agreement of the French government, been convened by ICAO in accordance with the procedures adopted by the ICAO Assembly (see Resolution A7-6).
36 Minutes of the 16th Meeting, 17th Session. The statement of the United Kingdom is valid insofar as concerns the annual increase in the limit. But the aviation insurance picture as a whole is not too promising in view of the high-capacity aircraft now coming into service. See Stephen, John E., “Airlines Liability and Insurance Problems in the Second Decade of the Jets,” (1969) 36 Insurance Counsel Journal 519–24.Google Scholar Mr. Stephen points out the magnitude of the insurance risk as follows: “Estimates of the maximum loss on a large-capacity jet with 100 per cent load and 360-seat configuration is estimated at $154 million. This estimate includes hull (without loss of use), passenger liability, freight and baggage liability, third-party liability and crew liability. If there were added to these exposures the life, accident and property coverage held by passengers, shippers and crews, the estimated maximum loss rises to $184 million. A collision of two such aircraft could thus involve a total exposure loss of $368 million” : ibid, 520.
37 Doc. 7686-LC/140, op. cit. supra, note 5, Volume I, at 270–71; Volume II, at 248.
38 For a discussion of the contingent fee, see Bloom, Murray Teigh, The Trouble with Lawyers 130 et seq. (1969)Google Scholar, and MacKinnon, F. B., Contin-gent Fees for Legal Services (Chicago, 1964).Google Scholar
39 Doc. 8839-LC/158-1, at 30–31.
40 The effect of the words “shall have the power” is to enable courts not otherwise empowered to do so to award costs, provided the state concerned does not deny the courts this power.
41 An explanation of this wording is in order. While, unlike courts in most countries, United States courts do not have the power to award costs, there are some instances where the power is given by statute. For example, under the Clayton Act, the court is authorized to award costs in an action arising out of that Act. One decision under the Act has stipulated that in determining allowance of a reasonable attorney’s fee in an anti-trust action, no consideration should be given to an agreement between plaintiff and attorney before trial, but rather the amount should be determined from the history of litigation of what is a reasonable fee for services rendered. See Milwaukee Towne Corporation v. Leow’s Inc. et al. 190 F. 2d 561(1951).
42 The words in square brackets are those on which the Committee took no final decision.
43 That is, not from the date of occurrence causing the damage.
44 Doc. 8839-LC/158-1, at 32–33.
45 For an interesting case on discrepancies between the translation of the Warsaw Convention in the English language and the original French text, see Corocraft Ltd., v. Pan American Airways Inc., [1969] 1 All E.R. 82 (C.A.). See also the following comments on this case: Mankiewicz, R. H., “Conflicting Interpretations of the Warsaw Air Transport Treaty (England: Queen’s Bench and Court of Appeal),” (1970) 18 Am. J. Comp. L. 177–88CrossRefGoogle Scholar and Keith, K. J., “Treaties and Legislation (based on Corocroft Ltd. v. Pan American Airways Inc.),” (1970) 19 Int’l & Comp. L.Q. 127–34.CrossRefGoogle Scholar
46 Doc. 8839-LC/158-1, at 22.
47 Doc. 8865-LC/I59, at 40 and LC/Working Draft No. 745–22.
48 Such as the International Institute for the Unification of Private Law (UNIDROIT) and IATA.
49 Doc. 8839-LC/158-1, at 21, 23–26.
50 LC/Working Draft No. 745–3.
51 See, in this regard, Doc. 8839-LC/158-1, at 271–92, for a report on automatic compensation presented by Dr. Guido Rinaldi-Baccelli.
52 Thus, Lee S. Kreindler, a noted New York trial lawyer, in a speech delivered before the McGill University Institute of Air and Space Law Association on April 14, 1970, criticized the $100,000 limit since, according to him, the average award in airlines cases is now approaching $250,000. See The Montreal Star, April 15, 1970, at 12, cols. 1-2. For criticisms of the Warsaw Convention by a well-known Chicago trial lawyer, see Kennelly, John J., Litigation and Trial of Air Crash Cases c. 7 (Mundelein, Illinois, 1968)Google Scholar. But these views are not shared by everyone. During a debate in the ICAO Council on March 24, 1970, the representative of Tunisia made the most express reservations with regard to the holding of a conference on the revision of the Warsaw limits. In particular, he drew attention to the fact that the basic proposal before the conference had been adopted by the Legal Committee by the close vote of nineteen in favour and thirteen against, with six abstentions. Moreover, he pointed out, four-fifths of the African and Asian states, and a good proportion of the Latin-American states, had not been represented at the seventeenth session of the Legal Committee (Council, 69th session, 17th meeting, para. 42). The United States representative at the same meeting of the Council stated, however, “that the United States could not be a party to a revised Convention to which only a limited number of countries adhered”: (ibid., para. 41).
