2

CONTRACTS ON INTERNATIONAL SALES OF GOODS BY AIR

Members:

Santiago Montenegro Rovalino

Diana Baldeón Zambrano

Marjory Agüero Tello

Naysha Sanchez Barboza

Fabiola Delgado Nunjar

Christina Guerra Huayllasco

Course: International Law

Professor: Johansen Carlos Meyer Tapia

Table of contents

Introduction..................................................................................................................1

1. The International Contract Carriage by Air...................................................2

1.1. Concept........................................................................................................2

1.2. Characteristics............................................................................................2

1.3. Key Concepts...............................................................................................2

1.3.1. Consignor.................................................................................................2

1.3.2. Consignee..................................................................................................2

1.3.3. Goods or Merchandise............................................................................3

1.3.4. Carrier......................................................................................................3

1.4. Obligations of the Parties to the Contract of Carriage by air................3

1.4.1. Obligations of the Carrier.......................................................................3

1.4.2. Obligations of the Consignor..................................................................4

2.1. Warsaw Convention 1929..........................................................................6

2.2. Hague Protocol 1955...................................................................................8

2.3. Montreal Convention 1999.........................................................................8

3. Determining the applicable international air convention...............................9

4. Air Waybill.......................................................................................................11

4.1. Introduction...............................................................................................11

4.2. Definition...................................................................................................11

4.3. Advantages and Disadvantages...............................................................11

4.4. Classification.............................................................................................12

4.5. Functions performed by the Airway Bill................................................12

4.6. Requirements of the Airway Bill.............................................................13

4.7. Structure of the Airway Bill.....................................................................14

4.8. Conditions..................................................................................................14

3

5. Case Study.........................................................................................................16

6. Conclusions.......................................................................................................19

7. References.........................................................................................................21

4

Introduction

An international business transaction requires a precise and detailed underlying

contract. However, it can be expensive and time-consuming to draft such a contract oneself.

The International Chamber of Commerce, the world business organization, has responded to

the market’s need for a reliable and equitable model with the ICC Model International Sale

Contract, which provides a solution in presenting a set of clear and concise standard

contractual conditions for the most basic international trade agreement.

Although this Model is denominated a ‘sale’ contract, it is equally appropriate for use

by buyers as it balances the interests of exporters (sellers) and importers (buyers). It may thus

also be used for a so-called ‘purchase’ agreement.

Not only this standard conditions are the ones that are going to be applied in cases of

breach of contract, there are certain conventions specifically related to the international

carriage of goods by air as the Warsaw Convention 1929, The Hague Protocol 1955 and the

Montreal Convention 1999 that mention conditions related to obligations, liabilities,

documents, etc.

It is important to mention that the most important document in a transaction made by

two parties in different contracting states using the air carriage is the Air waybill, being this

topic the most important on this academic article.

This academic article is divided into 6 parts, beginning with the international contract

carriage by air and topics related to this; The legal regime of international contracts for sales

of goods by air, being mentioned the conventions; The Air Waybill; and finally a case study,

conclusions and references.

1

1. The International Contract Carriage by Air

1.1. Concept

The international contract carriage by air is an agreement between the

consignor or owner of the goods, and a carrier in which the last is obligated and must

send the goods to a consignor in the place of destination. The carrier can be an airline

company or international carriage company.

The contract of carriage includes the acceptance of the cargo terminal of the

airline cargo at the place of departure, the physical movement of the goods, the scales

performed by the flight during your trip, as well as delivery of the cargo to recipient in a

cargo terminal located in the country of destination.

1.2. Characteristics

- Consensual: The contract of carriage of goods is formed by the mere agreement of

wills. As soon as there is consent and agreement between the parties, it is required

to perform the contract, making the transport according to the conditions specified

therein.

- Principal: Totally independent from other existing air transport agreements. It is

done by itself, unlike the contract of carriage of baggage, which is ancillary to the

contract of carriage of persons.

- Accession: Formal acceptance from de user to the transport conditions made by

the carrier. The user cannot change these conditions due to the accession nature of

the contract.

1.3. Key Concepts

1.3.1. Consignor

The consignor or the seller (owner of the goods) is the person or firm

who delivers a consignment to a carrier for transporting goods to a consignee.

1.3.2. Consignee

2

The consignee or the buyer (future owner of the goods after payment)

is a party named by the consignor in transportation documents (as the AWB)

to whose order a consignment will be delivered at the port of destination.

1.3.3. Goods or Merchandise

An inherent useful and relatively scarce tangible item (article,

commodity, material merchandise, wares) produced from manufacturing

activities that are going to be traded between parties whose places of business

are in different countries. According to the CISG the term “goods” does not

include (a) goods bought for personal use […], (b) by auction, (c) on

execution […], (d) stocks, shares, […], (e) ships, vessels, hovercraft or

aircraft, (f) electricity. (Convention on Contract for International Sales of

Goods, Art. 2).

Dangerous goods; they are articles or substances which potentially

dangerous characteristics are defined as substances whose danger is obvious,

such as acids, alcohols, fuels, explosives, radioactive materials, etc. Also other

items and substances used daily in the home, such as clothing products for

spotting, aerosols, thermometers, etc. (Warsaw Convention, 1929).

Restricted goods; It is considered restricted the export or import of

goods that are controlled or supervised by the relevant sectors, which require

prior authorization by the competent authority before being shipped.

(MINCETUR, 2009)

1.3.4. Carrier

The carrier is the person that undertakes to move something from one

place to another in exchange for a price called freight. It can be in the case of

air transport, an airline company or international carriage company.

1.4. Obligations of the Parties to the Contract of Carriage by air

1.4.1. Obligations of the Carrier

Under the contract of carriage by air, the carrier has the fundamental

obligation to receive goods and transport them by air to an agreed place and at

the agreed time, in addition to deliver the goods to the consignee in the same

condition they were received.

3

This implies two basic services:

a. The physical movement of the goods; which involves providing a suitable

vehicle, performing transport within the agreed time or, in case of no

agreement,

in the reasonable period of time and the use of reasonably direct route.

In air transport is very little chance that the sender and the carrier agree

to a specific time for delivery of the goods. This does not mean, however, that

time is not a critical factor driving the consignor to choose air travel instead of

going to other modes of transport. Usually the goods for air transport are

particularly sensitive to delivery time, either because it is perishable goods

(flowers, pharmaceuticals, etc.), or because the case of parts or spare parts that

need to be replaced with urgency. Therefore, the air carrier is expected to take

into account these characteristics of air cargo, when running the transport, so

that an excessive delay in the transport of the goods to their destination be held

liable to the carrier for delay delivery.

Regarding reasonably direct route is also expected running conveyor

contracted through direct flight path, that is, without scales. Nevertheless, it

must review the terms of the contract, which is often the carrier insert clauses

that give wide latitude to make scales and even for misusing.

b. The care and preservation of the goods in transportation; to accomplish

this fundamental obligation, the carrier has to have knowledge of the nature of

the goods, being this information delivered and mentioned by the consignor in

all the related documents when transferring the goods to the carrier.

If the goods requires special care, it is the obligation of the consignor

express to the carrier and provide the necessary instructions for the carrier to

fulfill its duty of care and conservation of cargo. It is logical to assume, of

course, in respect of the goods that deserves special care the value of freight

may increase.

1.4.2. Obligations of the Consignor

The obligation of the consignor is to provide the required information

in respect to the precautions needed for the care and preservation of the goods

4

being delivered, in addition to all the documents related to the cargo needed to

meet the local customs requirements, health permits (if needed), etc. “The

carrier is under no obligation to enquire into the correctness or sufficiency of

such information or documents” (Warsaw Convention 1929, Art. 16 (2)).

Another obligation of the sender, in practice the load generators do not

consider and cause innumerable problems, is obliged to pack the goods

transported. Although the Warsaw Convention does not have an express

stipulation to that effect, the Commercial Code, Article 1013, provides that the

sender is obliged to deliver the carrier duly packed, i.e. with proper packaging

and sufficient to withstand the route under normal conditions, without

suffering failures without cause them to other loads.

At the time to deliver cargo to the carrier, if he note than the same has

an improper or inadequate packaging, he can choose to reject for

transportation, or give notice to sender of the failure of the packaging. If the

sender insists the carriage of the cargo in these conditions, the carrier left a

note to that effect on the air waybill and therefore excludes liability for

damage resulting from improper packing.

Air cargo is normally stowed on board aircraft using load units called

"pallets", which are secured by meshes. These meshes always have the effect

of clamping the load, in order to prevent movement while away, possibly

causing security risks for flight. If the load is not properly or sufficiently

packed, this simple operation can damage the goods, without necessarily can

compromise the liability of the carrier, unless such packing insufficiency was

evident.

Finally, with regard to the obligations of the shipper or consignor, is the

payment of freight. The national and international law, including the Warsaw

regime, has two characteristics for the payment of freight, including:

while it is true the obliged of payment of freight is the sender or consignor

of the cargo

The addressee is jointly and severally liable to pay the same, so that if the

sender does not cancel the freight, the carrier is entitled to cash to the

addressee.

5

the carrier has a lien on the goods transported, pending the freight will be

canceled

One point that is controversial is the payment of freight when the goods have

been damaged, or when it is presented a partial or total missing. While in these

cases the obligation it is questionable to pay the freight, is necessary to

consider the matter, not just what was said above about the lien of the carrier

of the goods, but rather by custom, and also the recommendation of the IATA,

invariably air transport contracts contain a clause which provides that the

freight for the transport shall be paid "in any event" these is, even if it exists a

partially or completely missing, or if the goods were delivered damaged. This

type of clause, generally is respected by the courts.

2. Legal Regime on Contracts for International Sales of Goods By Air

2.1. Warsaw Convention 1929

The basic rules of international carriage of goods by air, passengers and

luggage, is contained in the Warsaw Convention of 1929.

The first international air convention, the "Convention for the Unification of

Certain Rules relating to International Carriage by Air", was signed in Warsaw in

1929. The convention is aimed at unifying the rules on international carriage by air.

This convention entered into force on 13 February 1933 and has been adopted

by 151 States. To date, it is the most adopted international convention. (UNCTAD,

Carriage of Goods by Air, 2006)

This convention "Applies to all international carriage of persons, luggage or

goods performed by aircraft for reward. It applies equally to gratuitous carriage by

aircraft performed by an air transport company." (Warsaw Convention 1929)

The Warsaw Convention 1929 provides a comprehensive structure of a unified

liability regime applicable to claims of international air transport.

The main areas in this convention may be summarized as follows:

The Convention:

Standardizes particulars to be included in the documents of carriage;

Indicated in Chapter III, Section III – Air Consignment Note ( Just in the

6

Warsaw Convention 1929 mention this name to the document, because in

the Montreal Convention it is changed to Air Waybill).

Creates a penalty for non-compliance with the particulars to be

included in the documents of carriage, (carrier loses monetary cap

limiting his liability); Art. 9 (Warsaw Convention 1929) says if the

carrier accepts goods without an air consignment note (AWB) or if the air

consignment note does not include all the particulars needed, then the

carrier has no right to avail himself of the provisions of this convention

which exclude or limit his liability, This in respect of the carrier.

For the Consignor, Art. 10 (2) (Warsaw Convention 1929) says, the

consignor will be liable for all damages made by the carrier or any person

by reason of irregularity, incorrectness or incompleteness of the

particulars and statements.

Thus, the Air Waybill is a very important document in this kind of

international transaction due to the consequences that bring because of

failure or incorrectness in the particulars of the documents, as cargo

description, place of destination, the movement and maybe special

handling requirements for example.

Sets out rules whereby the claimant does not need to prove the fault of

the carrier, or his agents, in respect of a loss;

Specifies a limited number of defenses to liability for the benefit of the

air carrier; Just Articles 20 and 21 prevent the carrier to be liable for

damages on goods if all the necessary measures to avoid damage and if

the measures were impossible for the carrier to perform were taken.

Fixes a monetary cap limiting the liability of the air carrier. The monetary

cap is 125,000 gold francs (about US$ 5,000 at the rates of exchange

prevailing in 1929) for passenger injury or death, 250 gold francs (about

US$ 10) per kilogram for loss or damage to cargo or registered baggage

and 5,000 gold francs (about US$ 200) per passenger for unregistered

baggage.

Defines the circumstances in which the carrier may lose the benefit of

the monetary cap limiting his liability; In cases where damage is caused

7

by willful misconduct or by such default from the carrier and if the

damage is caused as aforesaid by any agent of the carrier.

The provisions of the Warsaw Convention 1929 are of exclusive application

and have mandatory effect. This means that in circumstances where the Warsaw

Convention 1929 applies to a particular claim, a claimant can only rely on the liability

rules of the Warsaw Convention 1929.

2.2. Hague Protocol 1955

The Hague Protocol 1955 modifies the Warsaw Convention 1929. The Hague

Protocol 1955 doubles the monetary cap on the carrier's liability in respect of

passenger injury or death from 125,000 gold francs (about US$ 5000) to 250,000 gold

francs (about US$10,000). However, the Hague Protocol 1955 does not change the

financial limitation of the carrier's liability in respect of cargo and registered baggage

(which remains at 250 gold francs, about US$ 10), or in respect of unregistered

baggage (which remains at 5,000 gold francs per passenger, about US$ 200). Some

other innovations of the Hague Protocol 1955 include the following. (UNCTAD,

Carriage of Goods by Air, 2006)

The Protocol:

Simplifies the particulars to be included in the documents of carriage,

however, maintains the penalty for non-compliance with the particulars to

be included in the documents of carriage (carrier loses monetary cap

limiting his liability);

specifies that legal costs are excluded from a claimant's award of

damages;

Introduces an incentive for out of court settlements.

The Hague Protocol 1955 provides that if a State becomes a Contracting State

to the Hague Protocol 1955, but is not a Contracting State to the Warsaw Convention

1929, this "should have the effect of adherence" to the Warsaw Convention 1929

modified by The Hague 1955 called now "Warsaw-Hague Convention 1955".

(UNCTAD, carriage of goods by air, 2006)

8

The Hague Protocol 1955 entered into force on 1 August 1963 and has been

adopted by 136 States.

2.3. Montreal Convention 1999

The Montreal Convention 1999 provides that it "shall prevail over any rules

which apply to international carriage by air", according to Art. 55 Montreal

Convention 1999, as between Contracting States to the Montreal Convention 1999,

which are also Contracting States to one or more of the Warsaw-system conventions.

Thus, as between States, which are Contracting States to any one of the Warsaw

system conventions, and the Montreal Convention 1999, the Montreal Convention

1999 takes precedence.

The Montreal Convention 1999 entered into force on 4 November 2003 and

has, to date, been adopted by 70 States. The fact that such a large number of states

have adopted the Montreal Convention1999 in a relatively short period of time

illustrates the need for greater uniformity in the field of air law; it also suggest that the

Convention has achieved the right balance between the conflicting interests of the

different parties involved in air transportation.

The primary objectives of the Montreal Convention are:

- To provide for equitable compensation for damage to baggage and

cargo, that occur in international air carriage.

This objective refers to Article 18 of the Convention, the carrier

is liable for damage caused during transport cargo by air, but the

carrier is not liable wrong packaging, always that has not been made

by the carrier or by some of its servants or agents; the nature of the

cargo, and finally charger majeure, be an act of war or armed conflict,

and an act of public authority carried out in connection with the entry,

exit or transit of the cargo.

Another article mentions the liability of the carrier is Article 22,

which refers to that in cases of failure, delay or loss, the amount paid

by the carrier is equal to the total weight of the packages concerned.

- To facilitate the efficient operation of international carriage by air of

cargo.

9

To facilitate the efficient operations of international carriage by

air of cargo. Montreal convention realize it through the use of the

articles related to the carriage of goods belonging to Chapter II, like

article 5 which talks about the contents of air waybill or cargo receipt,

this article allows know the needed information of the places of

departure and destination that air waybill shall include, also the article

7 allows know the mandatory information inside the air waybill; ergo

makes efficient the operations related to the merchandise.

3. Determining the applicable international air convention.

As is evident from the above overview, there are different legal regimes which may

be applicable to a claim arising from the international carriage of goods by air. Whether the

Warsaw Convention 1929 or the Montreal Convention 1999, is often a complicated question.

In all cases, the trigger for the application of any of those international air conventions

and its corresponding legal regime is the concept “international carriage”. There is a single

definition of international carriage, which has not been changed by the various amendments

to the original Warsaw Convention 1929. To determine whether a specific contract is

international carriage, making one of the two international conventions applicable, there is a

two-stage inquiry, which is complex and in practice often creates considerable difficulty.

First, is necessary to determine whether the carriage comes within the technical

concept of international carriage defined as (by the two conventions):

(i) The agreed place of departure and the place of destination are situated within

the territories of two Contracting States, whether or not there is a break in the

carriage or a transhipment;

(ii) The agreed place of departure and the place of destination are situated within

the territory of a single Contracting State, if there is an agreed stopping place

within the territory of another State, whether or not this is a Contracting State.

(UNCTAD, Carriage of Goods by Air, 2006).

Secondly, it is necessary to check that the states of departure and destination are

contracting states to the same version of either the Warsaw Convention 1929 or the Montreal

Convention 1999. Therefore, it is imperative to study the Airway Bill closely to ascertain the

agreed places of departure and destination, as well as any agreed stopping place, and to

determine whether these meet the requirements set out in i) or ii) above. In cases where the

requirements for international carriage do not apply, then none of the international

10

conventions is applicable. Therefore, national law or the terms of the contract (i.e. terms and

conditions printed on the air waybill) will be applicable.

The term High Contracting States or, changed later by the Montreal Convention,

Contracting States has induced a conflict in respect to the meaning of this concepts. Tapia

Salinas1 indicates that the logical way to consider two parties as contracting states, are not

only those who signed the convention, but also the ones that later on rectified it or adhere to

the conventions.

4. Air Waybill

4.1. Introduction

The contract for air transport is concluded between a user and an

airline, which the airline commits to move from one place to another by air, certain

goods for delivery to the addressee or consignee, after complying with the provisions

of the Act General of Customs and its Regulation.

The air transportation contract includes from acceptance of cargo at a

terminal designated by the airline at the point of origin to delivery to the user or his

representative in a terminal also designated by the airline to the destination. In any

case the charge is delivered on the platform or ramp maneuvers airports (DS No. 050-

2001-MTC, Regulations of the Civil Aeronautics Law No. 27261 of Peru).

International air transport is regulated by the Convention for the

Unification of Certain Rules for International Carriage by Air 1999 (Montreal

Convention), the Convention on International Civil Aviation of 1944 (Chicago

Convention), the Convention for the Unification of Certain Rules International Air

Transport 1929 (Warsaw Convention), approved by res. Leg. No. 24819; Civil

Aeronautics Law of Peru and its Regulations, the General Customs Law and its

Regulations, and as noted in the RAP 112.

The air waybill is by far the most essential document issued in respect of the

international carriage of cargo. It evidences the contract or agreement of international

carriage between the parties and plays a central role in the liability regime. In current

practice, air waybills are usually not negotiable. This is explained by the speed of air

transport, which means that there is normally no need for a document, which enables

sale of goods in transit. (UNCTAD, Carriage of Goods by Air, 2006).1 Tapia Salinas, L. (1980). “Curso de Derecho Aeronáutico”. Barcelona. Retrieved from: http://www.academia.edu/975178/El_Contrato_de_Transporte_A%C3%A9reo_Internacional_An%C3%A1lisis_Comparado

11

4.2. Definition

The Air waybill can be defined as a document made out by or on behalf of the

shipper, which evidences the contract between the shipper and the carriers for carriage

of goods, by air and specific goods between places and conditions expressly

determined.

4.3. Advantages and Disadvantages

ADVANTAGES DISADVANTAGES

- Fast and punctual- Agility in customs procedures and administrative- Security- Global reach- Flexibility for its limited capacity

-Restrictions on load capacity and dimensions- Expensive relative to other means of transport (with higher incidence when oil rises)- Subject to very strict safety standards- Contaminant

4.4. Classification

(1) According to the classification Carrier Name

(a) Airline Air Waybill

Printed plane ticket (emission carrier) name and logo (emblem

aircraft, code, etc.) of the air waybill.

(b) Neutral Air Waybill

Without preprinted name and logo of any company in the

consignment the consignment. AWB constitutes neither an

airline is neutral letters bearing.

(2) According to the classification of different roles

(a) Air Master Air Waybill (MAWB)

When the delivery note issued by the air transport company

called Master Air Waybill.

(b) House Air Waybill HAWB

Company of transportation of goods by aircraft Published a

roadmap of each carrier for operates businesses.

4.5. Functions performed by the Airway Bill

12

Besides being a document, which accredits the contract of carriage, the air

waybill serves in turn to perform the following functions:

It is a Proof of receipt of goods

Contains the list of shipment, in which all the documents accompanying the

shipment

It is the invoice for freight and fees charged by the airline.

It is a commercial document required for customs clearance.

It is a commercial document required by the payment of the letter of credit or

documentary collections.

Used to accredit direct shipment of the goods and, that way, comply the rules of

origin to be subject to tariff preferences.

4.6. Requirements of the Airway Bill

It is a document that certifies the international air transport agreement, in

which all registered information must be complete and valid; it is composed of the following

requirements:

a) Shipper or exporter.

b) Name of consignee.

c) Number of flight and destination.

d) Airport departure and arrival.

e) Details of cargo: weight, volume, quantity, price and description.

f) Indicate if the freight is paid at origin or destination.

g) Amount of freight.

h) Number of air waybill.

I) Date of issue.

It should be contain information required by the aeronautical technical

regulations and standards, In the sending of the air cargo and issued the corresponding

letter Porte that protects must be documents which originate as a result of it, for

example commercial invoice, certificate of origin, packing list etc. and these are

delivered to importer in the country of destination together with the original Porte

Charter The consignment, unless proven otherwise, the receipt of the cargo by the

airline and transport conditions; can replace the document by other electronic means,

13

The absence, irregularity or loss of the consignment note, or a breach of

contract does not invalidate the existence of the contract of carriage, which may be

credited with any other evidence, under the responsibility of the carrier.

International air transport is regulated by the Convention for the Unification of

Certain Rules for International Carriage by Air 1999 "Montreal Convention" means

the Convention on International Civil Aviation 1944 "Chicago Convention"

means the Convention for the Unification of Certain Rules International Air

Transport 1929 "Warsaw Convention", approved by Legislative Resolution 24819;

Civil Aeronautics Act of Peru and its Regulations, the Customs Act and its

Regulations, and as noted in the Aviation Regulation No. 112 of Peru, known as RAP

112. In our country, the Air Charter has the Porte scope of a Title value, remains

applicable Law 27287.

4.7. Structure of the Airway Bill

The air waybill consists of a series of standard forms of green, pink, blue,

yellow,and numbered forms with the same content. Pages 1, 3 and 4 are considered

original and the back of each contract terms are specified, this is distributed to other

operators engaged in air transport in the following way:

The "original 1 (green)" is for the airline issuing the air waybill.

The "original 2 (pink)" is for the consignee.

The "original 3 (blue)" is for the consignor.

The "Copy 4 (yellow)" is the certification of cargo delivery to the

consignee.

Additionally, there white copies required for transport. The relevant provisions

are set out in the Montreal Convention and on the conditions of the contract.

The AWB is not a document of title to the goods; it does means that not

transfer any property rights over the goods. Therefore, the airway cannot be issued "to

order" and declare the consigned by name and exact address.

The contract of carriage evidenced by the AWB, has no legal force until it has

been signed by the user (or his agent) and the carrier (or its agent) and ends with the

delivery of the goods to the consignee at the point of destination.

14

4.8. Conditions

The conditions of the air way bill are essential requirements of the contract,

where support to fulfill obligations and that the obligation is fulfilled or not fulfilled

in the agreed manner, the recognition value of the goods or provide contractual

penalty.

transportation is subject to the liability rules relating to Warsaw established by the

Montreal Convention as the condition 2 airway bill unless the carriage is not

"international carriage" applicable laws and government regulations take the country

from .According defined by the agreements applicable carrier and related services

may be subject to an application or bring an action against it for loss, damage or delay

of goods. Delay or failure to schedule service constraints, such as rerouting or

alternative transport change are rights of the carrier.

In the case of using alternative transportation according to the condition 3 of

air waybill it is set to the face hereof or shown in Carrier's timetables as scheduled for

the road, except the place of departure and destination, the transport is performed by

several successive carriers shall be considered as a single operation.

For transport in which neither the Warsaw Convention or the Montreal

Convention, limiting the liability of the carrier shall not be less than the monetary

limit kilogram established in the rates of the carrier or general conditions of carriage

for cargo lost, it does not apply according to the condition 4, provided that such

limitation of liability in an amount less than 17SDR (Standard Dimension ratio) per

kilogram.

Depending on the condition 5.2 as the sent was not received, you can access a

claim, even if the transport has been paid.

• In cases of loss by damage to the cargo or delay of it, the weight to be taken into

account in determining the limit of liability of the carrier shall be only the weight in

question.

• In the case of loss damage or delay of part of a shipment, the shipment weight in

7.2.1. It will be prorated to the packages covered by the same air waybill, in which

value is affected by the loss, damage or delay. The weight applicable in the case of

loss or damage to one or more articles in a package shall be the weight of the whole

package.

us the condition 10 means that the receipt by the person entitled to delivery of the

cargo without complaint shall be prima facie give evidence (at first glance) that the

15

cargo has been delivered in good condition and in accordance with the contract

transportation, in the case of loss or damage or delay to cargo a written complaint

must be made to the carrier by the person entitled to delivery. This complaint must be

made:

• In case of any damage to the load immediately after discovery and no later than

within 14 days after receiving the charge.

• In the case of delay, within 21 days from the date the charge was placed at the

disposal of the person entitled to delivery.

• In the case of non-delivery of the cargo, within 120 days from the date of issuance

of the air waybill, or if an air waybill has not been issued, within 120 days the date of

receipt of the cargo for transportation by the carrier.

• the complaint can be made to the air waybill that was used or the carrier or the first

carrier or the last carrier or the carrier who performed the carriage during which the

loss, damage or delay took place.

• Complaints must be filed within the limits specified above in 10.1, otherwise no

action will be made against the carrier.

• Any right to damages against Carrier shall be extinguished unless an action is

brought within two years from the date of arrival at destination or from the date on

which the ship must arrive or the date on which the carriage stopped.

5. Case Study

REAL CASE STUDY

FIRST DIVISION OF THE SUPREME COURT: APPEAL

JUDGMENT NO. 214 OF MARCH 10, 2009.

Case Summary:

 It is about a breach of an air carrier, who had been hired to bring an engine, gearbox

and suspension system of a car, from Prague to Costa Rica. The service is paid in advance,

and should be given the December 5, 2004, so that these components may be installed in a

race car for the race "Three Hours of Costa Rica" to be held on December 12 2004. A part of

the suspension came on 9 December and the rest on 12 December. The merchandise had

16

damage, so the applicant had to run with another car, a series of additional costs and lost a

sponsorship to cover the cost of transport passenger coming from Brazil.

The ruling resolved married in due course:

 "Condemned to the driven payment of ¢ 5,254,666.00 in respect of sponsorship

Skoda vehicle, airline costs Sao Paulo San Jose vice versa, buying two wheels and an engine

for a vehicle Suzuki Ignis, that car leasing sensor, Skoda car preparation, arrangement of the

engine brought from Czech Republic and payment of warehousing. It also ordered him to pay

legal interest from the firmness of the judgment until actual payment. "

The Division basically came to analyze the following three aspects:

Air Waybill wihtout date of delivery charge

- It has shown that the carrier has a number of formulas predisposed to place the data

transport and lack of reference to the date of delivery, the transport company argued in its

favor that the service lacked a deadline.

- Meanwhile the Division: A) rejects the possibility of being faced with a contract

without delivery, which considers contrary to the principles of good faith and fairness in

business; B) He argues that the time of fulfillment is an essential condition of any legal

business.

- To solve this aspect, he reasoned as follows:

"... It is not unusual for contracting collected through writing (if used) only some of

the core aspects of the business, but others, for various reasons, are left out. This does not

allow saying that the lack of graphic support for nonexistent forces have such agreements,

whether through other evidence, analyzed according to the rules of sound judgment, they can

be credited. Furthermore, it should be added that, in a case like the one under discussion, is

the carrier who is able to establish a definitive or approximate date (reasonably) compliance,

as it is he who knows his business and who also made formulas guide bearing, so the deadline

should consist of them as data to complete…”

Liability for damages

[...] The Division, it recognizes the validity of the Warsaw Convention and the

Montreal Convention of 1999, had only been signed by Costa Rica, but was not in force.

Further recognizes that there is a liability regime to be applied as provided for in paragraph

22, subsection 2 “In the carriage of registered luggage and of goods, the liability of the carrier

17

is limited to a sum of 250 francs per kilogram, unless the consignor has made, at the time

when the package was handed over to the carrier, a special declaration of the value at

delivery and has paid a supplementary sum if the case so requires. In that case the carrier will

be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is

greater than the actual value to the consignor at delivery. (Warsaw Convention, 1929), but

this paragraph only regulates the damages arising from the delay, loss or damage to the

goods, but not limited to be the only compensation he understands that in the event that the

failure cause other harmful consequences these could be compensated.

This reasoning is adapted of Article 41 of the Constitution, so that the person can ask

for compensation for loss, damage or delay of goods under the Warsaw Convention; and

under other rules other damages which result of that failure has caused a negative effect on

their heritage: "... It noted, as sense of civil responsibility to repair. This involves reaching the

indemnity of the victim, ergo, place him in the same situation they had prior to the damaging

event, which, in the light of the case discussed would recognize the compensation ceiling for

damage of goods carried, but not over other impairments inflicted on other legal rights. Then,

this calculation formula will be used -so only- to determine the amount corresponding cover

in respect of the damage experienced by the goods transported ... "

FINAL THOUGHTS

In our country, the criteria that have been outlined by the First Chamber of the

Supreme Court at the time of having to apply the Warsaw Convention with their respective

modification of the Protocol to the Hague, adequately meet the criteria of interpretation to be

made an obligation of results that has been captured in a contract of adhesion; so it is denoted

when they resolved the lack of indication of delivery in the air waybill, not giving advantage

to the carrier for such failure; and conversely, allowing the injured 152 could prove the

existence of that term by a testimony, which is adjusted to our domestic law. It also proved

important that the essence that has the delivery within a contract of carriage, to stand out [...];

and that the late completion shop, carries responsibility for the carrier.

[...] Therefore, international agreements are a limitation to apply a different standard

of responsibility in regulated cases, but does not imply disengagement from the rest of the

domestic legal provisions; Thanks to its provisions, the liability regime of the Montreal

Convention, it becomes a new advance for the protection of the interests of the charger and

18

international air passenger transport, by attributing the risk objectively shuttle, to the air

carrier.

6. Conclusions

Whether one of the Warsaw-system conventions or the Montreal Convention 1999

applies to a claim arising from the carriage of goods by air is an important and often a

complicated question. In all cases, the relevant criteria for the application of any one

of the international air conventions and its corresponding legal regime is the concept

of "international carriage", as defined uniformly in the various international legal

instruments. Thus, all the international air conventions apply only in respect of

carriage between two Contracting States to the same international air convention.

As international commercial activities have dramatically increase in the last 30 years

due to globalizations, there is a greater demand for unification of commercial law at

international level.

Unification of laws means “adoption of an agreed set of rules, standards or guidelines

for application to transnational transactions’ In other words, unification of laws means

implementation of homogeneous set of laws that are assigned by international

organizations and embraced by separate states.

Unification may be seen as the adoption by countries of a uniform legal criterion that

governs specific aspects of international commercial transactions.

19

Given the increasing economic importance of air transport and its inherent

development potential, modernization, transparency and easy accessibility of laws and

regulation in this field are key, in particular for developing countries.

The Montreal Convention 1999 represents the most modern international convention

in the field. It consolidates the various earlier legal instruments known as the

"Warsaw-system conventions" into a single text and provides the basis for genuine

uniformity of laws governing transportation by air.

Air transportation is increasingly gaining in importance, both in terms of its

contribution to global trade and in terms of its development dimension. Although in

terms of weight, air carriage accounts for only around 2% of all cargo moved at the

global level, in terms of value.

In cases where more than one of the international conventions has been adopted by a

State, particular care is required to ensure effective implementation of each of the

international air conventions at the national level.

Adoption of an international air carriage convention at the international level, through

ratification or accession, is vital, to ensure that any relevant national enactment will be

fully effective.

20

7. References

International Air Transport Association-IATA. Retrieved from

https://www.iata.org/whatwedo/cargo/pages/air_waybill.aspx

Ministerio de Comercio Exterior y Turismo (2009). “Guía de control de mercancías

restringidas y ventanilla única de comercio exterior”. Retrieved from

http://www.mincetur.gob.pe/Comercio/ueperu/licitacion/pdfs/Informes/150.pdf

Ministerio de Comercio Exterior y Turismo (2009). “Guía de Orientación al usuario del

transporte aéreo”. Retrieved from

http://www2.congreso.gob.pe/sicr/cendocbib/con4_uibd.nsf/22853E566072CB2F

05257DE2007925C0/$FILE/Gu%C3%ADa_Orientaci

%C3%B3n_UsuarioTransporteA%C3%A9reo.pdf

Montreal Convention 1999.

United Nations Conference on trade And Development (2006) “Carriage of goods by air:

A Guide to the International Legal Framework” Retrieved from

http://unctad.org/en/Docs/sdtetlb20061_en.pdf

United Parcel Service UPS. Air Waybill. Retrieved from

http://www.ups.com/aircargo/using/services/supplies/airwaybill.html

Uribe Calderón, D. (2011). “El contrato de Transporte Aéreo Internacional: Análisis

Comparado”. Retrieved from

http://www.academia.edu/975178/El_Contrato_de_Transporte_A

%C3%A9reo_Internacional_An%C3%A1lisis_Comparado

Vicente Guzmán, J. (2003). “Aspectos Generales del Contrato de transporte aéreo

Internacional de Mercancías”. Retrieved from

http://www.emercatoria.edu.co/paginas/volumen2/pdf01/aspectos.pdf

Warsaw Convention 1929.

21

22