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Article 18.1 : The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air.

= Strict liability

18.3 : Definition of the carriage by air = 'the period during the cargo is in the charge of the carrier'

Swiss Bank Corp. and Others v. Brink's-MAT Ltd and Others [1986] 2 Lloyd's Rep. 79

18.4 : "If a carrier, without the consent of the consignor, substitutes carriage by another mode of transport for the whole or part of a carriage intended by the agreement between the parties to be carriage by air, such carriage by another mode of transport is deemed to be within the period of carriage by air."

> Art 38 (1) v Art 18(4)

> Pandora's Box- What constitutes 'consent of the consignor'?

Successive Carriage- Art 36

First/ Last carrier- Can you sue twice?

Joint and Several Liability

6. Liability of the carrier

Cargo ?

Damage occasioned by delay

Article 19 : Presumed Liability of the Carrier

No special rules on monetary limitation of liability for delay- rules of cargo damage to apply

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)

5. Against Whom ?

Damage to Cargo

4. Title to Sue

The contracting carrier & The actual carrier

Basis of claims

- Contracting Carrier & Actual Carrier :

artcle 39

- Successive carriage : article 36

- Combined carriage : article 38

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.

Claimant?

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)

2. Law and jurisdiction

Jurisdiction

3. Proceedings issues

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)

Arbitration

Article 34: Arbitration clauses are admissible

(Article 32 WC)

Requirements :

- the agreement shall be writing

- the arbitration proceedings shall, at the option of the claimant take place within one of the jurisdictions referred to in Article 33.

- application of the convention by the arbitrator or arbitration tribunal

- any term of such clause or agreement which is inconsistent shall be null and void.

Notification of charges

Preclusion periods

Law and jurisdiction clauses

Article 31 – Timely Notice by the person entitled to delivery

  • Damage : Complain after the discovery within 14 days from the date of the receipt
  • Delay : Complain at the latest within 21 days from the date on which the cargo have been placed at his or her disposal.

If failure: exclusion of the claim unless it is because of the carrier that the claimant did not respect the deadlines or fraud from the carrier.

> What about destruction and loss?

> Partial loss and partial destruction can be viewed as a damage, so that they ought to be notified within the deadline.

> Nothing about how and where the notice should be send

> Actual-Contracting carrier : Art 42 (same effect whether addressed to the contracting carrier or not).

Article 35 – Limitation of actions:

Action for compensation for damages may only filed within a preclusion period of two years.

(for court action or arbitral proceedings)

Beginning of the deadline : the day on which the aircraft arrived at the destination or should have there, or on which the carriage was interrupted.

As a preclusion it cannot be interrupted or arrested.

(different for time-bar)

> Only for action for damages (cf article 18): it does not apply for example to actions against its assistants or actions for compensation for damages due to non fulfillment.

Article 49 : all provisions of the carriage and all special agreements concluded by the parties prior to the occurrence of the damage, in which they make provisions on the applicable law or the place of jurisdiction that deviate from the convention, are null and void.

The choice of law and the choice of jurisdiction are thus no subject to the disposition of the parties.

7. Defences of the carrier

> What if after the occurrence of the damage?

Exonerations

Damage to the cargo : Article 18.2

Damage occasioned by delay : Article 19

Others

The carrier shall not be liable if it proves that it and its servants and agents

> took all measures that could reasonably be required to avoid the damage

or

>that it was impossible for it or them to take such measures (eg :natural disaster)

= 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

Limits of liability

Article 33.4 : Questions of procedure shall be governed by the law of the court seized of the case

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).

Principle : In case of destruction, loss, damage or delay during the carriage of cargo, the liability is limited to a sum of 17 SDR per kilogramme.

(19 SDR from 30 december 2009 - Art 24)

= Special Drawing right (no more gold franc), creating certainty.

BUT If the consignor has made a special declaration of the value and has paid a supplementary sum if the case so requires : the liability is limited to the declared sum.

(unless the carrier proves the declared sum exceed the actual value)

=unbreakable

!!! the exclusion of the limits in case of intention of causing the damage do not apply for carriage of goods, only for carriage of baggage and persons. The carrier of goods will always have the benefit of the limits.

2 effects :

- simplify settlements and avoid lenghtly and costly litigations

- incentive the carrier to provide a declaration of value in the air waybill

Involvement of the claimant in the causation : article 20

No punitive damages

Article 30 : ' In any such action, punitive, exemplary, or any other non-compensatory damages shall not be recoverable'.

If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability (...).

  • 'other wrongful act or omission' : refer to act that are deliberate rather than negligent (eg : false declaration of weight or content rising a delay in customs clearance)
  • Whether there is a contributory negligence and the attribution of losses were determined previously lege fori. Montreal convention does not anymore refer to it.

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

Documentation-cargo

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

Consequence of non-compliance with documentary requirement

Contents of Air waybill

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.

Conflict of conventions

Description of Air waybill

Scope of application of Montreal Convention

If the legal issue is not covered by Conventions

Documentation - cargo

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 55 - Relationship with other Warsaw Convention Instruments

= In case states are commonly being party to Montreal Convention and Warsaw Convention Instruments, the Montreal Convention prevails.

Conflicts with other conventions of transport ?

  • Combined carriage (Art 38) : application of the convention only on the air transport.
  • Loading, delivery and transhipment by another transports (Art 18.4) : 'any damage is presumed, subject to proof to the contrary, to have occur during the carriage by air'.
  • Substitution of the carriage by another mode of transport without the consent of the consignor (Art 18.4) : application of Montreal Convention

Examples of situations not covered by Conventions :

- what is to be recognized as damage

- how damages are calculated

- definition of cargo

- non performance of the contract of carriage

Application of rules of conflict of laws to determine the applicable law

Eg : if an european judge is seized, application of Rome 1 Regulation for a contractual claim

Article 1 = similar to Warsaw Convention

  • a carriage agreement

  • an international carriage

  • for reward / gratuitous carriage

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.

  • Not a document of title

Function of air waybill

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:

  • prima facie evidence of the conclusion of the contract
  • prima facie evidence of the acceptance of the cargo and of the conditions of carriage

  • Any statements relating to the weight, dimensions and packing of the cargo, as well as those relating to the number of packages, are prima facie evidence of the facts stated; those relating to the quantity, volume and condition of the cargo do not constitute evidence against the carrier except so far as they both have been, and are stated in the air waybill or the cargo receipt to have been, checked by it in the presence of the consignor, or relate to the apparent condition of the cargo.

Negotiable?

Art 10 Responsibility for Particulars of Documentation

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

Montreal Convention 1999

Dates

Who? Goals?

Limits of liability

Airway bill

- 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

  • modernize and consolidate the Warsaw Convention and related instruments
  • protect of the interests of consumers
  • achieve an equitable balance of interests

Liability

General changes

- 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

Carriage of goods by Air under Montreal Convention (1999)

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