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Cargo ?
No definition of cargo : qualification lex fori
> Classification of Human Remains
> Document of nature of cargo- only for housekeeping purposes?
> Distinction between cargo and baggages
- Aya v Lan Cargo SA, 2004 (US district Court)
The contracting carrier & The actual carrier
contracting carrier & actual carrier
Liability of contracting
carrier & actual carrier
Article 39 the provisions of this chapter
apply when "the contracting carrier" ,as
a principal, makes a contract of carriage
with
- a consignor
- a person acting on behalf of a consignor
"the actual carrier" performs the whole or part of the carriage.
Article 40 If an actual carrier performs the whole or part of carriage,
both contracting carrier and actual carrier shall be subject to the rules of this convention.
The former for the whole of the carriage contemplated in the contract, the latter solely for the carriage which it performs.
Article 29 : Any action for damages, however founded, whether under this Convention, or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this convention (...)
= 'however founded' / 'otherwise' :
allow damages to be covered specificity from common law and civil jurisdictions.
Mutual liability
Article 41 - The acts and omissions of the actual carrier and of its servants and agents acting within the scope of their employment shall be deemed to be also those of the contracting carrier.
- The acts and omissions of the contracting carrier and of its servants and agents acting within the scope of their employment shall, in relation to the carriage performed by the actual carrier, be deemed to be also those of the actual carrier.
*Nevertheless, no such act or omission shall subject the actual carrier to liability exceeding the amounts referred to in Articles 21, 22, 23 and 24.
E.g. : In front of a UK Jurisdiction
- Contract
- Tort
- Bailment
(Article 12) Consignor : Right of disposition of the cargo - during carriage by air and before goods are delivered to the consignee.
- ends when the right of consignee begins.
(Article 13) Consignee : Right to require the delivery of the cargo - unless the consignor has exercised his right, the consignee has the right to delivery of goods.
Combined Carriage
Successive Carriage
Article 14 : The consignor and the consignee can respectively enforce all the rights given to them by Articles 12 and 13 each in its own name, whether it is acting in its own interest or in the interest of another, provided that it carries out the obligations imposed by the contract of carriage.
see Western Digital Corporation and ors.V.British Airways PLC [2001] Q.B. 733 (C.A.)
Article 38 - In the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of this Convention shall apply only to the carriage by air.
- Nothing in this Convention shall prevent the parties in the case of combined carriage from inserting in the document of air carriage conditions relating to other modes of carriage, provided that the provisions of this Convention are observed as regards the carriage by air.
Article 36
- In the case of carriage performed by successive carriers,
each carrier which accepts baggage or cargo
- is subject to the rules set out in this Convention
- is deemed to be one of the parties to the contract of carriage in so far as the contract deals with that part of the carriage which is performed under its supervision.
i.e. a consignor contracts with a carrier for a carriage from point A to point B, and from point B to point C, and the carrier's timetables (which form part of the contract of carriage) indicate that part of the journey is to be performed by another carrier.
see Haldimann v. Delta Airlines Inc., 168 F 3d 1324 (DC Cir. 1999)
Article 33.1: Action for damages = option for the plaintiff, in the territory of one of the state parties
= Same than Warsaw System
- Before the court of the domicile of the carrier (head office or main branch).
- The court of its principal place of business
- The court where the office of the air carrier through which the contract has been concluded
- The court at the place of destination.
> No 5th jurisdiction for the cargo's owner
> Article 46 : additional jurisdiction against the actual carrier (at its domicile or its principal place of business)
> What if after the occurrence of the damage?
Exonerations
= New
The carrier is not liable if he proves that the destruction, loss, or damage to the cargo resulted* from :
- an inherent defect, quality or vice of that cargo
- defective packing of that cargo performed by a person other than the carrier or its servants or agents
- an act of war or an armed conflict
- an act of public authority carried out in connection with the entry, exit or transit of the cargo
*Remove of 'Solely' : being a dominant cause of deterioration is sufficient?
Law of procedure
Article 22.3
Limits V. Freedom to contract
!! 'The all necessary measures' is now ONLY available for delay (cf Art.19 WC)
Article 25 : A carrier may stipulate that the contract shall be subject to higher limits of liability than those provided for in this convention, or to no limits of liability whatsoever.
Article 26 : Any provision tending to relieve the carrier of liability or to fix a lower limit shall be null and avoid (do not involve the nullity of the whole contract).
Which weight?
Article 22.4 :
The weight to be taken is limited shall be only the total weight of the package or packages concerned.
Nevertheless, when it affects the value of other packages covered by the same air waybill, or same receipt, or record, the total weight of such packages must also be taken into consideration in determining the limit of liability.

REMINDER : The carrier is prima facie liable if three requirements are fulfilled
1. the claimant must complain in writing to the carrier within a specified number of days;
(damage : 14D / delay : 21D)
2. the claimant has two years to bring a court action or arbitral proceedings;
3. the claimant has to prove the extent of his loss as damages are only payable.
1. Which convention is applicable ?
HOWEVER the carrier is entitled to rely
- either on specified defences, which he need to prove to exonerate himself, wholly or partially,
- or limitation of his liability
Art 9: Non-compliance with the provisions of Articles 4 to 8 shall not affect the existence or the validity of the contract of carriage, which shall, nonetheless, be subject to the rules of this Convention including those relating to limitation of liability.
Art 5:
a) an indication of the places of departure and destination;
b) if the places of departure and destination are within the territory of a single State Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place; and
c) an indication of the weight of the consignment.
Scope of application of Montreal Convention
cf. WC Art 9: If the carrier accepts goods without an air consignment note having been made out, or if the air consignment note does not contain all the particulars set out in Article 8(a) to (i) inclusive and (q), the carrier shall not be entitled to avail himself of the provisions of this Convention which exclude or limit his liability.
Corocraft Ltd v Pan American Airways Inc [1969] 1 Q.B. 616 -- ''absurd' provision per Lord Denning
Art 7:
1. Air waybill shall be made out by the consignor
2. 3 original parts
3. The signature of the carrier and consignor may be printed or stamped
4. If, at the request of the consignor, the carrier makes out the air waybill, the carrier shall be deemed, subject to proof to the contrary, to have done so on behalf of the consignor.
cf. WC Art 8: (a)-(q)
WC/HP Art VI: (a)- (c):
(c): Hague notice
Art 4:
(1) an air waybill shall be delivered
(2) Any other means which preserves a record of the carriage to be performed may be substituted for the delivery of an air waybill. If such other means are used, the carrier shall, if so requested by the consignor, deliver to the consignor a cargo receipt permitting identification of the consignment and access to the information contained in the record preserved by such other means.
Article 1.2: “the expression international carriage means any carriage in which, according to the agreement between the parties (…)” = carriage without contract is not included.
But no definition of air transport contracts.
WC Art 6(1): ... be handed over with the goods
6(3): The carrier shall sign acceptance of the goods
HP Art V: 6(3) -- The carrier shall sign prior to the loading of the cargo on board the aircraft.
Article 1 = similar to Warsaw Convention
cf. WC Art 5
Article 1.2 :
- the country of departure and the destination are within the territories of two contracting states,
- or within the territory of a single state party if there is an agreed stopping place within the territory of another state, even if that state is not a state party (flying over without an intermediary landing is not sufficient)
Article 1.1 : Carriage must be carried out in exchange of remuneration. It can however be gratuitous if it is carried out by an air transportation company.
Art 12: Rights of disposition of cargo

Cargo Claim
Art 13: delivery of the cargo
13(1): Except when the consignor has exercised its right under Article 12, the consignee is entitled, on arrival of the cargo at the place of destination, to require the carrier to deliver the cargo to it, on payment of the charges due and on complying with the conditions of carriage.
13(3): If the carrier admits the loss of the cargo, or if the cargo has not arrived at the expiration of seven days after the date on which it ought to have arrived, the consignee is entitled to enforce against the carrier the rights which flow from the contract of carriage.
Art 11:
WC Art 8(f): air consignment shall contain: the name and address of the consignee, if the case so requires;
HP Art IX: To Article 15 of the Convention - the following paragraph shall be added:
“3. Nothing in this Convention prevents the issue of a negotiable air waybill.”
(1) The consignor is responsible for the correctness of the particulars and statements relating to the cargo + also apply where the person acting on behalf of the consignor is also the agent of the carrier.
(2) The consignor shall indemnify the carrier against all damage suffered by it.....
(3) Subject to the provisions of paragraphs 1 and 2 of this Article, the carrier shall indemnify the consignor against all damage suffered by it, or by any other person to whom the consignor is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements inserted by the carrier or on its behalf in the cargo receipt or in the record preserved by the other means referred to in paragraph 2 of Article 4.
MC Art15: 1. Article 12,13,14 do not affect either the relations of the consignor and the consignee with each other or the mutual relations of third parties whose rights are derived either from the consignor or from the consignee.
1. Regime : which convention is
applicable?
2. Law and jurisdiction ?
3. Proceeding issues
4. Title to sue ?
5. Against whom ?
6. Liability
7. Defences of the carrier
- air waybill can be substituted
- reduction of the requirements in air-waybill
- mutual responsibility of the correctness in the air- waybill
- limitation of liability: in non-compliance with documentary requirements
- the amount of the limits of liability
- exclusion of liability specific for cargo : addition of act of war, armed conflict and/or sovereign activity in connection with import, export or transit of goods.
- 'all necessary measures' defence only available in case of delay
- application of limits of liability even if the carrier intent to cause the damage.
*International Civil Aviation Organization (a United Nations Specialized agency)
28 may 1999 : signed by 52 states of the 122 states attending the conference (including USA and 18 european states)
Article 53.6 MC : need of 30 ratifications to come into force.
4th November 2003 : the MC came into force (4 years after signatures)
Main changes
Drafted by ICAO* – approved in may 1997
Goals
- Mandatory Insurance
- No definition of cargo
- Developments about the situation when the carriage by air is performed by a person other than the contracting carrier (chapter V)
- development of Arbitration
- application of the convention in case of the substitution of the carriage by another mode of transport without the consent of the consignor