/ Chapter 3 ·

Chapter 3

THE CONCEPT OF LIABILITY OF THE AIR CARRIER

AND THE WARSAW REGIME

In this Chapter an attempt is made to critically examine the concept of liability

under the Common Law as also under the Warsaw Regime. In order to understand

the principles underlying the provisions of the Warsaw regime, it is obligatory to

examine the Common Law principles which regulate the liability of Carriers. Thus

a study of Common Law principles is very important to the understanding of the

background of air Carrier cases.

THE CONCEYI' OF LIABILITY UNDER GENERAL LAW

First of all, a distinction must be made between the common Carriers and

private Carriers. In English .Jaw, a common Carrier of goods is a Carrier who holds

himself out and is prepared to carry for anyone who wishes to engage his services and

is prepared to pay his charges. 1 A common Carrier cannot refuse to carry a

particular person, or for a particular person, unless he has reasonable grounds to do

so. A private carrier is one who does not hold pimself out as a common carrier.

While as a general rule the private Carrier is liable for a particular damage,

only when it is due to his wilful act or negligence, the common carrier is strictly

1 Kahn Freud, The Law of Carriage and Inland Transport 4th ed. (London: 1965), p.96.

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liable for the loss or injury having occurred during the carriage. A common carrier

of goods ensurers the safe carriage of the goods he undertakes to carry. 2 He is

liable for any loss of, or damage to, the goods whilst they are in a course of transit

unless such loss or damage is caused by one of the few exceptions recognized by the

Common Law. 3 This means that a common carrier is not liable for any accident,.

which occurs due to natural causes, without human intervention, and that it could not

have been prevented by any amount of foresight and pain and care . ~hich are

reasonably to be expected of him. 4 The exceptional circumstances which can

absolve the common carrier of his liability are: (a) an Act of God, (b) war, (c) the

inherent vice of the goods, and (d) the supplier's own fault, including improper

packing of the goods. 5

The burden of proof is on the Carrier to show that the loss was caused due to

--reasons beyond his control and that he exercised proper care to avoid ·loss or

damage. 6 There is no simil~r liability placed upon the Carrier of passengers. 7 He

has a duty to exercise utmost care and foresight that are reasonably necessary to

secure the safety of the persons whom he undertakes to carry. Failure on his part

2 Ibid., p.198.

3 Ibid., p.199.

4 Ibid., p.293.

5 Ibid., p.253.

6 Ibid., p.200.

7 Georgette Miller, Liability in International Air Transport (New York: 1977), p.52.

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amounts to negligence and he is liable in damages if injury is caused. The principle

of res ipsa loquitur is applied in such cases. The British Court of Appeal in Easson

Vs. London North Eastern Railway Co .. held, "where a thing which causes an

accident is shown to be under the management of the defendant or his servants and

the accident is such as in the ordinary course of things does not happen if those who

have the management use proper care, it is a reasonable inference, in the absence of

explanation by the defendant, that the accident arose from want of care". 8 The

distinction between common carrier and a private Carrier is crucial in relation to

carriages of goods. A common carrier of goods is a virtual insurer of goods carried,

and is strictly held liable with a few exceptions. 9 The private Carrier is liable only

if he has wilfully damaged or lost the goods, or if he has been guilty of negligence.

He can exonerate himself by showing that he and his servants took reasonable

care. 10 With .-egard to the carriage of passenger, the liability of both the common

carrier and private Carrier depends upon negligence or wilful misconduct of the

Carrier on his servants.

The common carrier could contract out his liability by inserting an exclusion

or limitation clause in the Contract of Carriage. 11 The British Court, in Nicolson

8 LR [1944] KB 421 (Court of Appeal 1944).

9 Miller, n.7, p.52.

10 Freud, n.l, p.96.

11 Miller, n. 7, p.52.

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Vs. William, 12 upheld the right of the common carrier to contract out of his

obligations. In the United States, however, the consideration of public policy

intervened towards the end of the 19th century and courts looked unfavourably

towards clauses that excluded or limited liability. But, in relation to goods, a common

carrier is usually permitted to contract for a limitation of his liability to a reasonable

value, agreed to by the shipper. 13

Under the French law the Carriers of passengers and Carriers of goods are

both under the strict contractual duty to safely transport passengers and

goods. 14 The French commercial law does not permit the Carrier from excluding

his liability in cases of carriage of goods. 15 There is no similar prohibition in

relation to the carriage of passengers.

Maritime Law

The maritime law, like the Common Law, made the common carrier virtually

insurers of the goods. In the USA, the Harter Act (1893) prohibited the Carrier from

inserting clauses of exoneration of liability in the contract of carriage by sea. On the

basis of the Harter Act, the Brussels Convention 1924 on Maritime Law, adopted the

Hague Rules under which it is incumbent on the Carrier to exercise diligence to (a)

12 102 ER 1164 (KB 1804).

13 Miller, n. 7, p.53.

14 Ibid., p.54.

15 Commercial Code of France, Article 103(3).

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make the ship seaworthy, (b) properly man, equip and supply the ship, (c) make the

· parts of the ship in which goods are carried fit and safe for their reception, carriage

and preservation. 16 The Convention provides that any clause in the contract of

carriage that purports to lessen these obligations is null and void. 17 The diplomatic

conference, held at Warsaw in 1929, took guidance from the Brussels Convention of

1924.

The corrunon carriers carry goods at their own risk. They are bound by the

principle of absolute liability. They also have no right to refuse as was held by the

British court in the case of Great N(!)rthern Railway Co., V s. L. E. S. Transport and

Depository Ltd. 18 But, according to Halsbury, "in the case of international carriage

the status of common carrier is something in the nature of anachronism since much

of the English law relating to such carriage -- whether by road, rail, sea, or air -- is '•

directly or indirectly derived from international conventions". 19 As regards the

private Carrier, his problem is like a bailee and his liability is governed by the Law

of Contract i.e., to exercise reasonable care. 20 The burden of proof is on the· bailee

to prove that he exercised reasonable care. The Supreme Court of India held the

railways liable due to negligence for loss of goods in Union of India Vs. Suganti

16 Brussels Convention on Maritime Law 1924, Article 111, Rule 1.

17 Ibid., Article 111, Rule 2.

18 LR [1922] 2KB 742 CA.

19 Viscount Hailsham, ed., Halsbury's Laws of England, (London: 1974), 4th edn., vol.5, p.133.

20 See, e.g., the Indian Contract Act 1872, Sections 151 and 152.

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Sugar WJrk? 1 Neither the Indian Carriers Act, 1865, nor the Indian Courts

normally allow an exoneration clause to be inserted by the Carrier in a special

contract unless the shipper is put on a special notice, as was held by the British Privy

Council in a case from India. 22

The common carrier owes a duty to transport the goods safely to the

destination. Liability arises out of breach of this duty. According to the British Court,

the Carrier is absolutely liable for any loss or destruction of goods. 23 As Halsbury

points out, he is liable even when overwhelmed and robbed, or when he had no

control over persons causing loss or damage. 24

The Privy Council, in Irrawaddy Flotilla Co. Ltd., Vs. Bugwandas,25 held

that "the obligations imposed by law on common carrier has nothing to do with

contract in its origin. It is a duty cast upon common carriers by reason of their

performing a -public profession for reward. A breach of this duty is a breach of the

law, and for this breach an action lies founded on· the Common Law".

Exceptions

The English Common Law absolves the Carrier from the liability stated earlier

in exceptional circumstances. (This is also followed by the Indian Courts). These

21 [1976] 3 sec 32.

22 AIR 1947 PC 151.

23 Chapman Vs. G. W. Railway, LR 1865 QB 278.

24 Halsbury's Laws of England, n.19, p.156.

25 [1891] 181A 121 PC, 18 Cal. 620.

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exceptions are: (a) an Act of God, (b) act of Enemies, (c) inherent vice and defects,

(d) improper and bad packing, (e) justifiable delay, and (j) misconduct or default of

the consigner.

Act of God

A Carrier is not liable for any loss or destruction of goods where such loss or

destruction is due to an Act of God. According to Halsbury, "an Act of God in the

legal sense of the term may be defined as an extraordinary occurrence or

circumstance, which could not have been foreseen and which could not have been

guarded against; or, more accurately, as an accident due to natural causes, directly

and exclusively without human intervention, and which could not have been avoided

by any amount of foresight and pains and care reasonably to be expected of the -. person sought to be made liable for it, and who seeks to excuse himself on the ground

of it" .26

Lord Mansfield in Forward Vs Pillard21 held that all causes of inevitable

accident fortitude -- which are occasione4 by the elementary forces of nature

unconnected with the agency of man belong to the class to which the term "act of

god" is properly applicable. The British court in Michael Gallery Footwear Ltd., Vs.

Iaborn28 held the Carrier liable where the vehicle carrying shoes was stolen, in

26 Halsbury's Laws of England, n.19, p.183.

27 [1875] 1 Times Rep. 27; 8 Digest Repon 18.

28 [1982] 2 AllER 200.

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spite of the clause inserted in the Contract of Carriage to the effect that the "Carrier

shall, however, be relieved of liability if the loss, damage or delay was caused

through circumstances which the Carrier could not avoid and the consequences of

which he was unable to prevent". The defence of the Carrier that it was an Act of

God was disallowed.

Enemy's Act

The second defence available to the Carrier is, that the loss or damage resulted

from an act of a hostile foreign enemy during the war. But, if the war is the result

of the act or omission of the Carrier, then this defence is not available. In James

Morrison and Co. Ltd., Vs. Shaw, Savill and Abbica Ltd. ,29 the British Court did

not allow the defence of the enemy's act, when German Submarine torpedoed the ship

--carrying cargo which touched a port which was not on its customary route.

Inherent Defects

A common carrier is not liable for damage or loss of goods caused due to an '

inherent defect in the goods, packing or fault of the consigner. Under Common law

the British Court exonerated the Carrier in the case of Lister Vs. Lancashire and

Yorkshire Co., 30 because of the defective condition of the shaft of an engine which

was contracted to be transported by the Carrier. The damage resulted due to its

29 LR [1916] 2 KB 783.

30 [1903] 1 KB 878.

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inherent defect, it was held similarly, due to bad packing, the British Court absolved

the Carrier of liability in Gould V s. Smith Eastern and Cathern Railway

Co. , 31 because the glass case, cracked due to its brittle nature and inadequate

packing.

Delay

A common carrier is liable for delay. But, if the delay is due to causes beyond

his control then he is exonerated. In the case of Soins and Co., Vs. Midland Railways

Company, 32 the Carrier was exonerated by the British Court for loss of perishable

goods delivered late due to the strikes of railway workers.

Commencement and Duration of Liability --

The liability of the common carrier commences from the moment he accepts

the goods for transportation, and he is responsible during the period of carriage until

these are delivered at the place of destination. The Carrier was held liable even when

the loss occurred due to delay as the usual route of Suez Canal was closed, as was

decided by British Court in Tsakeorelon and Co. Ltd., V s. Nob lee and Thori

Gmblt. 33 However, if the consignee refuses to take delivery within a reasonable

time after arrival at the place of destination then the Carrier is exonerated of his

31 [1920] 2 KB 186.

32 [1913] 1KB 103.

33 [1961] 2 AllER 179; LR [1962] AC 93.

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liability. His position becomes that of a warehousekeeper, as was held in Brookes

Wharf and Bull Wharf Ltd., Vs. Goodman Bros., by the British Court. 34

Burden of Proof

The burden lies upon the Carrier to prove that there was no negligence or fault

on his part. There is a presumption of liability of the Carrier in case of loss or

damage to the good, which he has to rebut. The Calcutta High Court in C. Doogur

Vs. River Steam Navigation Co., held the Carrier negligent and liable due to loss of

goods on account of fire, the cause of which he could not explain. 35

Measure of Damages

Halsbury's Laws of England states as under: 3~

Where goods are entirely destroyed or lost by a common carrier, the measure of damages recoverable from him is prima facie the value of the property lost. If the consigner has declared the value of the goods before the carriage, he is bound by the declaration and is stopped from giving evidence that the goods have any higher value.

Jurisdiction

The Indian Code of Civil Procedure (CPC) (1908) stipulates that where a suit

is for compensation for wrong done to the person or to movable property, if the

wrong was done within the local limits of the jurisdiction of one court and the

defendant resides or carries on business or personally works for gain within the local

34 [ 1936] 3 All ER 696.

35 ILR [1897] 24 Cal 78.

36 Halsbury Laws of England, n.19, p.458.

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limits of the jurisdiction of another court, the suit may be instituted at the option of

the plaintiffs in either of the courts. 37

CPC states that subject to the limitations aforesaid, every suit shall be

instituted in a Court within the local limits of whose jurisdiction:

(a) The defendant or each of the defendants where there are more than one at the time of the commencement of the suit actually or voluntarily resides, or carries on business, or personally works for gain; or ·

(b) Any of the defendants where ther~ are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personaily works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside or carry on business or personally work for gain as aforesaid acquiesce in such institution; or

(c) The cause of action, wholly or in part arises explanation -- A corporation shall be deemed to carry on business at its sole and principal office in India, or in respect of any cause of action arising at any place where it has also a subordinate office at such place. 38

The parties can neither exclude the jurisdiction of the Courts39 nor confer

jurisdiction if there is none. 40 They can restrict the choice of jurisdiction _out of

available places. In the case of Patel Roadways P. Ltd., V s. Republic Forge Co.

Ltd. , 41 The parties had provided in the contract that the Bombay Court shall have

exclusive jurisdiction but no cause of action arose within Bombay jurisdiction, the

37 The Indian Code of Civil Procedure (1908), S.l9.

38 Section 20, ibid.

39 The Indian Control Act 1872, Section 28.

40 Avtar Singh, Law of Carriage Air, Land and Sea 3rd ed. (Delhi: 1993), p.51.

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Court held the Bombay Court has no jurisdiction. Similarly the Contract of Carriage

is not binding on a third party, e.g., insurer, unless he is on notice of the agreement.

TORTIOUS LIABILITY

It will be appropriate here to discuss tortious liability. According to Winfield

the "tortious liability arises from the breach of a duty primarily fixed by law. This

duty is towards persons generally, and its breach is redressible by an action for

unlimited damages. "42 It is not important to specify as to from which law a right

accrues, and a cause of action arises for the claimant to obtain a remedy from the

Court. 43 But, it may be important from the point of view of procedure to know the

source of this right -- to illustrate in order to determine limited period, it runs from

the date of breach in contract and in tort when the damage is suffered. The plaintiff's ,_

claim for damages could arise from: (a) breach of contract, (b) Sale of Goods Act,

(c) tort or negligence, (d) the consumer Protection Act, (e) misrepresentable fraud, I

forgery etc. Thus the relationship between a doctor and a patient, or a Carrier and

a consigner, may give rise to a cause of action, arising out of the breach of contract

or tort. The Courts are, however, reluctant to allow the contractual allocation of

responsibility to be overridden by the law of tort. 44

42 W. V.H. Rogers, Winfield and Jolowicz on Tort, 13th ed. (London: 1990), p.3.

43 Letang Vs. Cooper, LR [1965] QB 232-244 per Lord Diplock.

44 Rogers, n.42, p.5.

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It was Winfield's view that tortious duties exist by virtue of law itself and are •

not dependent upon the agreement or consent of the persons subjected to them. 45 A

common man is under duty not to assault, slander or trespass, not because of

contractual obligation but legal requirements. Thus, tortious liability is independent

of any contractual liability. In short the tortious liability arises from breach of duty

fixed by law and contractual liability is determined by the breach of the terms. of the

contract itself. It is distinguishable from criminal liability, which is a punishment by

the sanction of the powers of the State, under a statute.46 Winfield is of the view

that the Carrier being a bailer, his duties do not arise from tort,47 but from a

contract.

The Fault Principle

On the face of it, the fault principle determines the liability of a person. But

the English Law also recognizes the strict liability with regard to personal injury or

nuisance, which is commonly known as the rule in Rylands Vs. Fletcher.48 The

French law has always had an element of strict liability for motor accident cases

because of the provision in the civil code. The damages are recoverable even if the

victim himself is at fault, and contributory negligent. This principle of negligence due

45 Ibid.

46 E.g. Indian Penal Code, 1908.

47 Rogers, n.42, p.ll.

48 Ibid., p.421; also see Rylands Vs. Fletcher (1865) 3 H&C374.

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to which damages, even if not intended by the defendant, is caused to the plaintiff is

recognized by Common Law. 49 So is the duty to take care as was decided by the

House of Lords in English case of Donologue Vs. Stevenson, where it was held that

the manufacturer owed a duty of care to the ultimate user or consumer of his product.

Lord Atkin laid down the proposition of the principle of English law relating to the .

duty to take care as under:50

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour who then in law is my neighbour? The answer seems to be -- persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. 51

STRICT LIABILITY

The strict liability principle of English Law was laid down as the classical

exposition of the doctrine, by BHtckbum in Rylands Vs. Fletcher as follows:

We think that the true ru~e of law is that the person who for his own purposes brings on his lands and keeps there anything likely to do ·

· mischief if it escapes must keep it in at his peril, and if he does not do so, is prima facie answerable for the damage which is the natural consequences of its escape. 52

49 Art.l384 of the Code Civil.

50 Donoughue Vs. Stevenson [1932] Ac 562.

51 Ibid.

52 Rylands Vs. Fletcher [1865] LR 1 Ex.265, 279-280.

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The rule in Rylands Vs. Fletcher has ultimately given birth to the modem legislation

like the Nuclear Installation Act 1965, and The Merchant Shipping (Oil Pollution) Act

1971,53 in England. These enactments impose civil liability on the persons

violating the requirements, holding them liable for causing "damage" to the third

parties.

DAMAGES

Damages are the Common Law remedy consisting of payment of money and

are intended to compensate the plaintiff's loss and not punish the defendants.

KINDS OF DAMAGES

The c{~imant can be awarded contemptuous, nominal, exemplary or punitive

damages under the law of torts. The English court granted to Constantine, a well

known West Indian Cricketer, nominal damages against the Imperial Hotels Ltd.,

when the later was unjustifiably refused him accoinmodation in one of thbr

hotels. 54 Such cases are now more common under the British Race Relations Act,

1976 which expressly allows damages for injury to feelings, and might therefore,

produce a larger award of compensation on such facts. 55

53 Rogers, n.47, p.453.

54 Constantine Vs. Imperial Hotels Ltd., LR [1944] KB 693.

55 Rogers, n.42, p.601.

..

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Measure or Quantum of Damages

The basic principle for the measure of damages in tort as well as in Contract,

is that there should be restitutio in integrum. 56 It means that the amount of

damages should be as nearly as possible equivalent to restore to the person, the loss

which he ·has suffered. In personal injury too, this principle is applied to the

pecuniary elements of the plaintiff's loss of earning. 57 However, the victim of a

tort is obliged to mitigate his loss, that is to say, he may not claim damages in respect '

of any part of his loss that would have been avoidable by reasonable steps on his

part. 58 In Enrich Vs. Kensington Area Health Authority case, decided by the

British Court, it was held that it was reasonable for a woman to decline to have an

abortion and claim compensation for b'ecoming preg~nt after a sterilization operation

performed by the defendants. 59

Non-Pecuniary Loss

A person is entitled to claim damages for the physical pain and suffering, and

mental injury and suffering caused by his awareness that his life expectancy has been

shortened by the injuries as was held in H. ~st and Son Ltd., Vs.

56 Ibid., p.608.

57 British Transpon Commission Vs. Gourby (1956), Ac 185.

58 Rogers, n.42, p.609.

59 LR [1985] QB 1012.

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Shephard. 60 The plaintiff was married, aged 41 at the time of accident and

sustained severe head injuries resulting in cerebral atrophy and paralysis of all the

four. limbs. The House of Lords upheld an award of £17,500 for loss of amenities.

The award of such damages cannot really quantify the injury suffered. The question

of restoring the claimant in pecuniary terms does not occur. There is no immutable

standard established to quantify such losses, especially in case of death. At common

Law the general rule was that death of either party extinguishes any existing cause

of action in tort. This· changed by passage of the Law Reform (Miscellaneous

Provisions) Act 1934, and cause of actions now survives on tort after death.

Liability resulting from death under the British Act of 1934

Whe~_ the injured party dies, the damages recoverable for the benefit of the

estate may not--include any exemplary damages, nor any damages for the loss of

income in respect of any period after the victim's death. 61 But the rights contained I

in the 1934 Act are in addition to, and not in derogation of, any rights conferred on

the dependants of deceased persons under other British enactments like the Fatal

Accident Act 1976, the Carriage of Air Act, 1961, and the Wlrsaw Convention Act,

1929, etc. It was originally the outcome of development of railways in England which

to an increase in the number of accidents resulting in fatal and non-fatal injuries.

Accordingly, in 1846, the Fatal Accidents Act, otherwise known as the Lord

60 LR [1966] AC 326.

61 Law Reform (Miscellaneous Provisions) Act, 1934, 51(2) as Amended in Administration of Justice Act 1982 S4.

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Campbell Act, was passed which entitled the deceased's dependents to claim

damages. Lord C.B. Pollock in 1858 adopted the test (which has been used ever

since), that the damages must be calculated "in reference to a reasonable expectation

of pecuniary benefit as of right or otherwise from the continuance of ·the

life". 62 However, the Courts in England have granted compensation to the child

for loss of his mother's care, which cannot be evaluated in terms of money, as House

Keeper. 63 Similarly, the loss of a four year old child may not be a pecuniary loss

to his parents, but the Courts in England have granted damages for loss of love,

affection and company. 64

Defences

At common law, it is open for the defendant to raise a number of defences,

either self-exculpatory or in mitigation of damages. (1) Sometimes a person ~ay

receive grievous injury, suffer loss or even death and may not be able to claim any

compensation under Common Law, tort or even contract, in view of a prior

agreement to exonerate the defendant. To illustrate, a person may have agreed or

given a consent for not claiming any compensation in case of injury, loss or death,

e.g., in a lawful surgical operation. The effect of such a consent or assent is

commonly expressed in the maxim \blenti non fit injuria which means that "one who

62 Duckwonh Vs. Johnson [1859] 29 U BX 259.

63 Hay Vs. Hughes LR [1975] QB 790.

64 Kamdalla Vs. BEA LR [1981] QB 158.

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has invited or assented to an act being done towards him cannot when he suffers from

it complain of it as a wrong" .65 At Common Law, in the absence of duress, the

agreement to exempt the defendant from ~my liability for negligence was a complete

defence. Sometimes this consent is expressed and sometimes it is implied. In Slater

V s. Clay Cross Co. Ltd., 66 as the plaintiff was lawfully walking along a narrow

tunnel on a railway track owned and occupied by the defendants, she was struck by

a train owing to the negligence of the driver, Denning L.J., said, "It seems to me that

when this lady walked in the tunnel, although it may be said that she voluntarily took

the risk of danger from the running of the railway in the ordinary and accustomed

way, nevertheless she did not take the risk of negligence by the driver". However,

in another case the plaintiff who in defiance of orders, and statutory regulations,

tested the detonator without taking the requisite precautions, causing thereby an

explosion and- injury to himself, failed to receive apy damages.67

/

(2) The other defence is the remoteness of consequences, i.e., the act of

omission or commission has no nexus between the result or injury, loss or damages

caused. The British Court declined to grant any damage-to a person who attempted

to stop a runaway horse at a desolate countryside by taking unnecessary

risk. 68 But, where a volunteer had gone from his home to the scene of disaster to

55 Smith Vs. Baker LR [8191] AC 325 per Lord Herschell.

56 CR [1956] 2QB 264.

57 Imperial Chemica/Industries Ltd., Vs. Shalwell [1965] AC 656.

58 LR [1935] IK~ 146.

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help· in the rescue operation and became psychoneurotic as a result, his wife got

compensation. 69

(3) Contributory negligence is always a defence under Common Law of torts

and contract law.

(4) Public policy and legality of the plaintiff's act, resulting in injury would

disentitle the plaintiff to a claim. Lord Denmy said that a person who is a burglar

may have no claim if he is unjustifiably shot by a householder. 70

(5) Inevitable Accident: Sir Frederick Pollock defines an inevitable accident

as an accident not avoidable by any such precautions as a reasonable man doing such

an act then and there could be expected to take. 71 11_1 such cases the onus is on the

def~ndant to prove that the accident occurred despite the exercise of reasonable care.

This may not be a plausible defence, especially in view of the rule in Rylads Vs.

Fletcher, where the damage caused was due to the result of lack of care of the agents.

Similarly, like the principle of res ipsa loquitour, the plaintiff can rely upon the mere

happening of the accident as evidence of negligence.

(6) Act of God: This defence is also limited to negation of liability under the

principle relating to negligence.

69 Chadwick Vs. British Railways Board [1967] 1 WLR 912.

70 Murphy Vs. Culhane LR [1977] QB 94.

71 Sir Frederick Pollock, Salmond on Tons, 15th ed. (London: 1938), p.97.

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(7) Act of State, an Act of Enemy are other defences in tortious liability and

contractual liability cases.

Thus, it is clear from the foregoing discussion that the principle and concept

of liability under the Common Law, torts and contract are very relevant for

consideration of the underlying principles and concept of the Warsaw Regime's air

Carriers liability. They· are commonly shared by most legal systems, and can be said

to be part of the general principles of law under Article 38(1)(c) of the Statute of the

ICJ.

THE CONCEPI' OF LIABILITY OF THE AIR CARRIER AND THE WARSAW REGIME

The principles upon which the concept of liabiHty of the air carrier are •

founded, were accepted by the Paris International Conference on Private Air Law,

held in 1925 at Paris. 72 Normally, at Common Law the Carrier is liable ori the

basis of risk theory, i.e.' the principle of res ipsa loquitour, whereas in the case of

the air Carrier the principle adopted was that of fault ·theory. It means that air Carrier

is not absolutely liable for any loss, injury, damage or death if he proves that he took

all reasonable measure to avoid the injury or loss. This was to help the civil aviation

industry at its infancy.

72 Georgette Miller, n.7, p.63.

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Uniform regime of liability

The Warsaw Convention 1929, seeks to provides a uniform regime to govern

the liability of an air Carrier for the carriages of passengers, baggage and

goods. 73 Articles 17, 18 and 19 of the Warsaw Convention create a presumption

against the Carrier in the case of damage affecting passenger:s, baggage and goods,

and in the case of delay. This is closer to the common carriers' liability for the

carriage of goods, than to his liability for the carriage of passengers,. and was akin

to the French Law at that time. It has been argued in several Common Law countries

that Articles 17 and 18 of the Warsaw Convention created absolute and unlimited

liability. 74 The Courts in USA have, however, interpreted these provisions in

restricted sense in the light of other· provisions of the Warsaw regime. 75

,_

Due Diligence

The basis of Article 20( 1) of the Warsaw Convention is the concept of due

diligence. There is no easy translation of the words "due diligence" in French. The

Paris Conference of 1925 had approved the fact that if the Carrier could establish that

it had taken all reasonable and normal measures, then the Carrier would not be held

liable. The CITEJA draft of the Warsaw Convention retained the words of

"reasonable measures" or "all necessary measures". In the Warsaw Convention, "due

73 Ibid., p.64.

74 The Westminster Bank Ltd., Vs. Imperial Airway Ltd, 55 Lloyd's Report, 241.

75 Reagan Vs. KLM Royal Dutch Airlines, 4 AW 17257 (New York City: 1954).

101

diligence" must be proved to relieve the Carrier from liability. The logical conclusion

therefore is that the Convention places a presumption of fault on the Carrier which

it can disprove by proving "due diligence". The air Carrier were placed in a better

position than Carriers by road or rail under the domestic law since it allowed the air

Carrier to inc!ude exclusion of liability; it was not so under the Convention. The

advantage to the air Carrier was, however, lessened in practice by indexing the

application of the principle of res ipsa loquitour in aviation cases. The Hague

Protocol did not alter the basic regime of the Convention. The Montreal Agreement

did so by depriving the Carrier of its defence under Article 20(1), by providing that

the Carrier shall not, with respect to any claim arising out of the death, wounding or

other bodily injury of a passenger, avail itself of any defence under Article 20( 1), of

the Warsaw Convention whether or not amended · by the Hague Protocol. The

Montreal Agreement altered the liability regime with respect to passengers only. The

Guatemala City Protocol, however, changed the liability regime drastically with

regard to passengers as well as baggage. 76 The one defence left to the air <;arrier

was the "health of the passengers or inherent defect of the baggage"77 or wilful

act or omission, i.e., contributory negligence of the claimant.

76 R.H. Mankiewicz, "Warsaw Convention: The 1971 Protocol of Guatemala City", American Journal of Comparative Law, vol.20, 1972, p.335.

77 Article 17(1) of the Amended Warsaw Convention.

102

CONTRIBUTORY NEGLIGENCE

If the Carrier proves that the damage was caused, or contributed, by the

negligence of the claimant, the court may, in accordance with the provisions of its

own law, exonerate the Carrier wholly or partially from his liability. 78 At

Common Law, contributory negligence is a complete defe_nce. 79 The onus is on the

Carrier to prove that the damage was caused or contributed to by the injured person.

The Carrier must prove two elements: (z) negligence, and (ii) the causal role of

negligence in the resulting damage. 80 The final effect will be determined by the

Court of each country as to what negligence is. There may be divergent results. The

USA court -~· in Chutter Vs. KLM Royal Dutch Airlines, held the passenger

· negligent when she failed to fasten a seat belt when advised to do so. 81 In another

case, of Wing Hang Bank Ltd. Vs. Japan Airlines Co., 82 the USA court held the

Carrier liable even when the consigner transported US$25,000 currency notes without

declaration. The New York court held that the negligence cannot be said to have been

the proximate of its loss. Article 21 was amended by the Guatemala City Protocol

and, the additional Montreal Protocol No.4 in 1975, whereby it no longer makes a

renvoi to the lex fori and has established a uniform substantial rule where the Carrier

78 Wzrsaw Convention. 1929, Article 21.

79 The Law Reform (Contributory Negligence) Act 1945, Section 1(1).

80 Miller, n. 7, p. 168.

81 4 Avi 17773 (S.D.N.Y. 1955).

82 12 Avi 17884 (S.D.N.Y. 1973).

103

shall be wholly or partly exonerated from his liability to such persons to the extent

that such negligence or wrongful act or omission caused or contributed to the

damage. 83

MANDATORY LIMITS OF LIABILITY

Originally the limitation of liability was seen as a quid pro quo for the

presumption of fault which was placed on the Carrier. The balance between the

conflicting interests of Carriers, passengers and shippers is protected by Article 23,

which declares the provisions, tending to relieve the Carrier of liability or to fix a

lower limit than that provided in the Convention, shall be null and void. 84 The

Hague Protocol relieves the Carrier from this pro~ibition in respect of "loss or

damage resulting from inherent defect, quality and vice of the cargo". This concept

of law is well known in the Common Law. The original limitation was set at very

low level, i.e., 125,000_ francs per passenger. 85 It was criticized in USA and was

considered unconstitutional and against the public policy and domestic law --

especially wrongful death cases. In Burdell V s. Canadian Pacific Airlines

Ltd., 86 where Judge Bua of the Circuit Court of Cook County, Illinois, USA said

that: "The provisions of the Warsaw Convention Treaty which would restrict damage

83 Miller, n. 7, p.170.

84 The Wlrsaw Convemion, 1929, Article 23.

85 Ibid. , Article 22.

86 11 Avi 17351(1ll.Ct. 1969).

104

in this case to approximately US$8,300 are unconstitutional and, therefore, not

enforceable because they are violative of the due process and equal protection clauses

of the United States Constitution. The Court finds that such provisions are arbitrary,

irresponsible, capricious and indefensible as applied in this case, in that such

provisions would attempt to impose a damage limitation of considerably less than the

undisputed pecuniary losses and damages involved in this case. Such unjustifiable,

preferential treatment of airlines is unconstitutional. The Court considers that there

is I;J.O basis tor the unequal and discriminatory treatment of common Carrier airlines,

engaged in international travel and that there is no legal or rational basis for the

discriminatory treatment.

This ultimately led to the denunciation of the Warsaw Convention by the USA,

and consequently to the Montreal Agreement of 1966. It was designed to answer the

objections raised in the United States against the law limits by the Warsaw

Convention. 87 There has been a genuine criticism with regard to the validity of the

Montreal Agreement which is seen as a tacit amendment to an international treaty that

is Warsaw. In fact, it is a bilateral agreement, or "Special Contract" in line with-the

interpretation of Article 3 of the Warsaw Convention. It has been upheld in US

Courts, for example in the case of Sheris V s. The Sheris Company. 88

87 Miller, n.7, p.185.

88 12 AV 17 3944 (Va. Sup. Ct. 1972).

105

Grounds for Limitation of Liability

Limitation of liability was adopted to protect the "infant industry" in Europe,

particularly when the airline industry had not achieved its present day standards. It

aimed to protect the industry from vexatious claim due to catastrophic accidents at a

time when the aviation insurance had not been in a position to cover the risk entirely.

H. Drion also identifies the following grounds in justification of the limitation of the

Air Carrier operators' liability: 89

(a) It is Analogous with maritime law and its global limitations of the ship owner's liability;

(b) It offers the necessary protection of a financially weak industry;

(c) Catastrophical risks should not be borne by aviation alone.

(d) It is necessary for the Carriers or operators to be able to insure against these risks; and absence of liability limits will make insurance coverage costly.

(e) In the absence of liability limits, it will also be difficult for the potential claimants to take insurance themselves;

(f) limitation of liability is a counterpart to the aggravated system of liability imposed upon the Carrier and operator quid pro quo.

(g) A cap on liability will reduce the chances of litigation by facilitating quicker settlements;

(h) It will also bring in greater unification of the law in respect of the quantum of damages to be paid.

Under the US law there is no limitation of liability of the air Carrier, either

with respect to passenger or cargo claims, or to surface damage. But then,there is no

89 H. Drion, Limitation of Liability in International Law (The Hague: 1954), p.12.

106

country m the world where civil aviation has developed to a comparable level

achieved by the USA. Now when there is a suggestion and movement to lift the

liability cap, it is the turn of developing countries which are keen to retain the

provisions for limitation of liability because of their underdeveloped civil aviation

industry and poor economy. They are keen to protect their infant domestic aviation

industry.

Once the principle of limited liability has been accepted for one reason or

another, the question remains whether there should be added certain exceptions to that

principle, and if so, why? The Warsaw Convention 1929 adopted the much litigated

and most ambiguously phrased Article 25 which deprives the Carrier of limitation of

liability in cases of wilful misconduct.

Delay

It is difficult to determine the liability of the air Carrier arising out of delay.

Article 22 of the Warsaw Convention provides the same limit for delay as it does for

death of or injuries to passengers, and loss or damage to luggage.

The lATA General Conditions (P~ssengers) 1971, which were adopted at the

1970 Honolulu Conference of lATA, and became effective from 1 April 1971, are

merely recommendatory.

In Heeiful Vs. KLM Dutch Airlines. the Dutch court rejected the claim due to

the lATA Condition of Contract relating to airway bills (lATA Resolution 600B)

because no specific points had been agreed upon for the carnage of live stock.

107

Although the minxes arrived late in a very bad condition there was bonafide

performance of the Contract of Carriage held by the Court.

In Sidhu and others V s. British Ailways90 the British Court of Appeal

rejected the claim of the passengers against air Carrier alleging negligence in unlawful

·detention by Iraqj government-- Kuwait on 2 August 1990, as time barred under the

Warsaw Convention. It. held that air Carrier was not negligent or responsible in any

manner, and also that delay was not ca~sed during the air transportation of the

passengers and the Carrier.

UNLIMITED LIABILITY

Article 25 of the Warsaw Convention provid~s that the Carrier shall not be I

entitled to avail himself of the provisions which exclude or limit his liability if the

damage is caused by intentional misconduct or such a fault as, in accordance with the

law of the court seized of the case is considered to be equivalent to intentional

misconduct by any servant or agent of the Carrier acting within the scope of his

employment. 91 The problems arising under these provisions can be examined in

three ways: (a) What kind of misconduct is required? (b) To what extent will such

misconduct by servants or agents be treated in a like manner as the Carrier's or

operator's own misconduct for the purpose of the exception and the air Carrier to be

guilty of? (c) What is the effect of such misconduct?

90 PLC (1996) 2 ASLR, p.89.

91 C.N. Showcross, K.N. Beaumont, and P.R.E. Broune, Showcross and Beaumont on Air Law (London, 1951, 2nd edn), p.98.

108

The Warsaw Convention requires the air Carrier to be guilty of "dol", in order

to be liable. Sir Alfred Dennis, the British Delegate to the Warsaw Conference,

suggested English words "wilful misconduct", which would cover wrong acts not only

done "intentionally" but also recklessly. The questions as to what constitutes dol or

faute lourde or "gross negligence", and "intentional wrong", were left to the lex fori

to interpret since the natural view would prevail, it may defeat the purpose or object

of the convention, i.e., achieving unification of rules. The Warsaw Convention is

international law and it must be construed as such. Some of the circumstances under

which the Article 25 has been made applicable by different courts are:92

1. Crimes involving mens rea committed at the instigation of the Carrier;

2. Violation of statutory safety provisions relating to safety of aircraft;

3. Death or injuries to passengers due to flying at too high an altitude, or without pressurization bumpy flying, or bad food;

4. Delay in transportation;

5. Loss of baggage.

In American Airlines Vs. Helen, the Court93 held that if the pilot violates

a Civil Air Regulation forbidding flight below an altitude of 1000 feet above the

highest obstacle located at a distance of five miles, causing injury to the passenger, I

it amounts to wilful misconduct.

92 Orion, n.89, p.213.

93 1949, US AV R. 338.

109

In Ritts Vs. A.O.A.,94 an US court held that wilful misconduct covers not

only acts done deliberately but also acts of carelessness without regard to the

consequences. It may be noted that this formula conforms to the definition suggested

by Sir Alfred Dennis at the Warsaw Conference.

In Horalin. Vs. BOAC15 an English Court for the first time explained the

meaning of wilful misconduct as under:

To be guilty of wilful misconduct the person concerned must appreciate that he is acting wrongfully or is wrongfully omitting to act and yet persists in so acting or omitting to act regardless of the consequences or acts or omits to act with reckless indifference as to what the result may be.

In the case of Broche-Hennesy Vs. Air France96 arising from the Azores

accident, a French Court, interpreted faute lourde as "misconduct betraying ·either

incapacity or _carelessness" -- recklessness, lack of skill, blindness etc.

The outcome of these cases led to adoption of the words "intent to cause

damage" in the Rome Convention of 1952.97 The Convention provides that "if the

person who suffers damages proves that it was caused by a deliberate act or omission

of the operator, done with 'intent to cause damage', the liability of the operator

should be unlimited".

94 1949 US AVR, 65, 68.

95 [1952] 2'Acl ER 1016.

96 J.CP. 1952, 11, 6985 [1952] 6 RFDA 199.

97 The Rome Convention, 1952, Article 12.

110

It is also appropriate to discuss the case of "vicarious liability" i.e., of the

Carrier operator or the servant. The Canadian Court in Nysted et a/ Vs. Wings et

a/., 98 held that "as the responsibility for fitness rests upon the Carrier, and upon

him alone, the Carrier cannot be excused for any failure of h1s vehicle by showing

that he relied upon the high reputation of the manufacturer or repair of the machine. "

In case of theft or pilferage by any servant or agent of the Carrier, whose duty

it is to deal with the baggage or cargo within the course of their employment, the

Carrier is held liable under Article 25, even if the theft was committed outside the

working hours. 99 The Rome Convention of 1952 makes the operator ultimately

liable for the gross negligence or wilful misconduct of his servants, unless he proves

"that he has taken all proper measures to prevent the damage" . 100

In the.-_case of Hennesy Vs. Air France101 the plaintiff expressly renounced

his right to bring action under the Warsaw Convention; instead he argued that their

actions be deemed under Civil Law in delictual liability and 'claimed unlimited

damages. The French court disallowed and dismissed the claim.

98 [1942] 3 D.L.R. 336.

99 Drion, n.89, p.252.

100 The Rome Convention,. 1933, Article 14(a).

101 Ibid., n.94.

111

On the other hand, under the Common Law rule the plaintiff may freely elect

to sue on any basis which is available to him. 102 Lord Radcliff, in Lister Vs.

Ramjord Ice and Cold Storage Co. Ltd., 103 stated:

It is familiar position in our law that the same wrongful act may be made the subject of an action either in contract or in tort at the election of the claimant, and although the course chosen may produce certain incidental consequences which would not have followed had the other course been adopted, it is a mistake to regard the two kinds of liability as themselves necessarily exclusive of each other.

The same freedom prevails in reiation to a Warsaw case, even though there

are factors which could have produced a different result. Because the Warsaw

Convention has concepts such as wilful misconduct and contributory negligence which

normally belong to the English law of torts, the impression is created that action

based on the Convention are tortious. In Bart Vs. British W?st Indian Ailways

Ltd., 104 the -action for late arrival of shipment was framed in contract but

principles of the law of tort ~nd law of bailment were applied by the Court.

Each country may have a distinct legal and cultural system of its own. In

France, rules of delictual liability-are in toto considered as part of ordre public, but

not so in Common Law. 105 The very concept of ordre public in France means

102 Kelly Vs. Metropolitan Railway, LR [1895], QB 944.

103 LR [1957] AC.555 [H.L. 956].

104 [1967] I, Lloyd's Report 210.

105 Miller, n.7, p.247.

112

supremacy of society over the individual. There is a similarity of tradition of Public

Policy in England and other Common Law countries.

Documents of Carriage

The liability of the air Carrier is unlimited, if the damage or injury is

attributable to non-compliance with the requirements of the Warsaw Convention in

relation to the documents of carriage.

The Warsaw Convention requires the documents of carriage to be delivered

to the passenger or shipper. 106 The documents of transportation require certain

particulars for each object of air carriage, i.e., of passenger,' luggage and cargo.

Passenger 1icket

The passenger ticket is a basic document formulating the contract for the

carriage by air of a passenger. 107 The passenger ticket should contain the

following details: 108

(a) Pl<ree and date of issue

(b) Points of departure and destination

(c) International stops, if any

106 The Wzrsaw Convention, 1929, Articles 3(1), 4(1), and 5(1).

107 G.S. Sachdeva, International Transponation Law of Carriage by Air (New Delhi, 1987), p. 78.

108 The Wzrsaw Convention, 1929, Article 3(1).

113

(d) name and address of the Carrier; and

(e) a notice that carriage is subject to the provision of the Warsaw Convention.

The Courts have been concerned with the following principal issues in relation

to the documents of carriage:

(a) What has to be included in the documents?

(b) What is the penalty for the Carrier's non- compliance?

When no ticket is issued, or when it gets lost or contains certain inaccuracies,

the contract of carriage remains valid and the Warsaw Convention is

applicable. 109 However, if the air Carrier aceepts a passenger without issuing a

ticket, he will not be able to invoke the exclusion or limitation of liability under

Warsaw, and shall be exposed to unlimited liability. The Hague Protocol, 1955,

amending the- provisions of the Warsaw Convention, requires the air Carrier to

include notice of application of the Warsaw Convention in the international transport

I,

of the passenger. In the Montreal '{'rust Co., V s. Canadian Pacific Airlines

Ltd. , 110 the Canadian Supreme Court held that the statement should be

"noticeable" and not just reasonably readable. It should be in a form ready to attract

the notice of the passenger, who may take appropriate measures, say, having

additional insurance cover, before undertaking the air journey. In this case, the Court

held that "forward half-point" type reproduction of the material required by Article

109 I.H. PH. Diederiks-Verschoor, An Introduction to Air Law, (The Hague: 1993, 5th edn.), p.60.

110 14 AVI 17310 (Supreme Court of Canada, 1976).

114

3( 1-3) of the Protocol did not constitute a notice within the meaning of that Article,

and accordingly the Carrier was not entitled to the benefit of the provisions of Article

22 which limit his liability.

The "unnoticeable" and "unreadable" notice on the air-ticket was also held by

the USA Court in Lise Vs. Alitalia111 as being "no sufficient notice". However,

when a passenger could not read English, a foreign language, the Greek High Court

of Justice held that there was compliance of the Warsaw Convention. 112

The USA court in Mertens Vs. Flying Tiger Line, 113 held that the ticket

be delivered to the passenger in such a manner as to afford him reasonable

opportunity to take measures to protect himself against the limitations of liability.

Such measures could be: not taking the flight, entering into a special contract with

the Carrier or taking additional insurance. In this case the Carrier was held liable

because the ticket was delivered to him after he had boarded. the plane.

US Court, however, ruled, in Grey Vs. American Airlines114 that an Air

ticket need not mention the intermediate stops, and reference to the official time table

of the airline is sufficient.

111 US Avi, vol.9, p.18, 120, 1966.

112 X and Y Vs. Olympic Ainvays, Schoner's Case Law Digest, Air Law, vol.1 (1976), p.259.

113 Avi. vol.9, p.17457 (1965) USAVRI.

114 [1950] US AVR, 507.

115

The Baggage Check

Article 4 of the Warsaw Convention, 1929, requires that the baggage check

shall be issued for the transportation of baggage other than the items of which the

passenger himself takes charge. In case of absence, irregularity, or loss of the check,

the contract of carriage remains valid and the provisions of the Warsaw Convention

applicable. However, the Carrier will attract unlimited liability if he accepts any

baggage without issuing a baggage check. 115 The Hague Protocol, 1955, makes

it easier by allowing the baggage check combining with the "passenger ticket".

Article 1 of lATA General Conditions of Carriage (Passenger) 1971, defines

baggage as such articles effect and other personal property of a passenger as are

necessary or appropriate for wear, use, comfort or convenience for his trip. Unless

otherwise specified, it shall ~hclude both checked and unchecked baggage of the

passenger. However, it does not include: 116

(i)

(ii)

(iii)

(iv)

Articles which do not constitute baggage as defined in Article 1 hereof;

articles which are likely to endanger the aircraft or persons or property on board the aircraft;

articles, the carriage of which is prohibited by the I

applicable laws, regulations or orders of any state to be flown from, to, or over; and

live animals.

115 J. Barret, and R.A. Louis, "Failure to Comply with Documentary Technicalities of Warsaw Convention leads to Unlimited liability in baggage Cases", Air Law, vol.XX (1990), pp.88-89.

116 lATA General Conditions of Carriage (Passengers) 1971, Article IX 1(a).

116

The Carrier may refuse to transport as baggage any of the articles described

above. The passenger is subject to personal search in order to determine whether he

is in possession of such unacceptable articles. The air Carrier may refuse to accept

baggage if it is fragile, or contains perishable articles, money, jewellery, precious

metals, negotiable papers, security and other valuable, business documents, or

samples. 117

The non-compiiance of requirements of the Warsaw Convention in respect of

baggage could expose the Carrier to unlimited liability. A British Court, too, in the

case of Westminster Bank Ltd., Vs. Imperial Airways Ltd., 118 held the air carrier

fully liable when it failed to give a proper and clear notice that the "carriage is

subject to the rules relating to liability established by the Convention". In the case of

Samuel Montagu Vs., Swiss Air Transport, 119 when a box of gold which was

booked from London to Zurich was lost, Lord Denning said that Article 8(q) should

not be given so rigid an interpretation as to hamper the conduct of business. That ~ase

followed the decision of a US court in the case of Seth V s. British Overseas Airways

Corporation 120 where it was held that a "statement that the carriages was subject

to the Convention unless such carriage is not an international carriage as defined by

the Convention, was sufficient compliance of the requirements. The US Court has,

117 Ibid., Article IX, para 5.

118 55 Lloyd's Report 242 (KB 1936).

119 [1966] 1 All ER. 814.

120 8 Avi 17, 252 (D. Mass., 1963).

117

however, dealt with cargo cases on a footing different from that of the "passenger's

transportation", with regard to damages for non-compliance requirements in relation

to documents and notice. The US Supreme Court in Southeastern Express Co., Vs.

Pastime Amusement Co., 121 held:

The Carrier is entitled to basic rates value and its compensation should bear a reasonable relation to the risks and responsibility assumed. The liability in this instance is thus governed by the provisions of the applicable tariff and no recovery could be made/had in excess of the amount permitted by its terms.

The Air Way Bill

Under the Warsaw Convention, the Airway Bill Note is the prescribed

document for the carriage of goods and constitutes prima facie evidence of the

conclusion of a contract, of the receipt of goods, and of the conditions of

carriage. 122 It is not a document of title, nor is it a transferable or "negotiable

instrument" in view of the prohibition contained under the Warsaw

Convention. 123 It is an important document to be prepared and signed by the

consignor and air Carrier jointly. It is made out in three original parts and require

"the Carrier to accept this document, and append or stamp his signatures in

acceptance of the goods." 124 The first part is marked "for the Carrier" and second

121 299 US 28 (US Supreme Court 1936).

122 The Wzrsaw Convention, 1929, Article 11(1).

123 Ibid., Article 12 to 15.

124 Ibid., Article 6.

118

part "for the consignee". The third part "shall be signed by the Carrier prior to

loading and handed over to the consignee after the goods have been accepted for

carriage by air. 125 The air consignment notice shall specify (a) The place and date

of its execution, (b) the place of departure and of destination, and (c) the agreed

stopping places.

The failure to mention "stopping place" neither violates the provisions of the

Warsaw Convention nor it invalidates the contract. The. USA court in the. case of

American Smelting and Refining Co., Vs. Philippines Airlines, 126 helq that since

there was no causal connection between such an omission and the damage, the air

Carrier could invoke the limitation of liability provisions. In Kraus

V s.KLM127 also, the New York Supreme Court held that if the "time table

schedule" mentions the "places of stoppage", reference to the "time table" is in full

compliance of the requirements of the Warsaw Convention.

With regard to "the weight, the quantity and the volume or dimensions of

goods" the failure to. comply with such details does not debar the Carrier from

claiming limitation of liability. In the case of Cosocraft Ltd., and another Vs. Pan

American Airways Inc., 128 the En~Iish Court of Appeal held that unless there is

some causal relation between the omission and damage, the good commercial sense

125 Ibid., Article 8, The Hague Protocol, 1955, Article V.

126 [1956] US AV R. 387.

127 [1949] US Av. R.306.

128 [1968] 2 All. ER 1959. LR [1969] QB 6103.

119

should prevail and compliance should be presumed. In this case where jewellery

consigned was lost, the Carrier could claim the benefit of limitation of liability

provisions of the Warsaw Convention.

If the Carrier accepts goods without an air consignment note having been made

out he does so at his own peril and gets disentitled to the benefits of the provisions

which exclude or limit his liability. It was held by an Indian High Court in Budhu

Chand Hans raj V s. Assam Travels Ltd., 129 The consigm!r is responsible for the

correction of 12 particulars and statements relating to the goods which he wants in

the air consignment note. 130

The Hague Protocol provides that "nothing in this Convention prevents the

issue of a negotiable airway bill" .131 This pro~isions was included on the

recommendation of the special subcommittee of ICAO. Therefore, the air

consignment note can, under the protocol,, be negotiated like the bill of lading or the

railway receipt.

In the case of Chan Vs. Korean Airlines Ltd., 132 where the notice on the

air ticket was printed only in eight-point type instead of ten point type as required

under the Montreal Agreement, an United States District Court held that since the

Montreal Agreement is not a negotiated amendment to the Warsaw Convention, it

129 Ibid., n.12, Article 10(1),.

130 The Hague Protocol, 1955, Article X.

131 The Hague Protocol, 1955, Article X.

132 490 us 122 (1989).

120

cannot be construed as establishing a ten-point type notice as a precondition for

acceding the Convention's grant of limited liability. The Court further noted that the

Montreal Agreement does not express any intent to have the failure to include proper

notice result in a loss of limited liability. 133 The Court also felt that to interpret

the treaty provisions in such a way as to relieve the United States of its treaty

obligations shall be . inappropriate. The Montreal. Agreement lacks judicial

enforcement, although it may be self-executing. 134

The choice of jurisdiction provided by the Warsaw Convention to the claimant

is the subject matter of analysis in the next chapter.

133 Terence Sweeney, "The Requirements of Notice in the Warsaw Convention", Journal of Air Law and Commerce, vol.6, 1995-1996, p.408.

134 Ibid., p.433.