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Published online by Cambridge University Press: 24 August 2017
Given before the Air Law Group of the Society on 20th November 1967.
Note 1— The Sub-Committee having considered a number of definitions which have been suggested, decided by a majority to retain some of them, which it considered necessary for the proper interpretation and application of the Convention.
Note 2— The Sub-Committee tried to avoid the inclusion of a definition of “carrier”, but eventually decided by a majority that this was necessary for the proper interpretation of the Convention in order to cover cases where the agreement to carry was entered into but no carriage was actually performed.
Note 3— The Sub-Committee considered whether it was necessary to make special reference to live animals especially since these are expressly excluded from the definition “marchandises” by the Bills of Lading Convention. However by employing the word “cargo” any such reference appeared to be unnecessary.
Note 4— The majority decided that, for the purpose of determining the applicability of the Convention, the places of departure and destination and, when these were in the same State, a landing place in another State, as agreed between the passenger or shipper and the carrier, should govern. On many grounds this seemed to be the most practical solution because it depends always on the actual intention of the parties as evidenced by the agreement to carry. A minority preferred to take away entirely the concept of an agreement to carry from the paragraph determining the applicability of the Convention and requested that its views be recorded. The first sentence of this paragraph would then read: “This Convention applies to all carriage by aircraft of passengers, cargo or baggage for remuneration, when the places where the carriage begins and ends are situated either in the territories of different States of which one at least is a Contracting State, or in the territory of the same Contracting State when an intermediate landing in the territory of another State, even if the latter is a non-Contracting State, has been made“; and an additional paragraph would be added reading: “Whenever the place where the carriage actually begins or ends or at which an intermediate landing is made differs from those agreed upon, whether or not such agreement would be valid and enforceable, only the latter of these places shall be taken into account in determining the applicability of this Convention”. This idea had been tentatively accepted during initial discussions but was later rejected by a large majority when its full implications and impracticability were recognized during the discussion of later provisions. The arguments of the minority in favour of the rejected proposal were: that it provided a solution to the problem of the stowaway; that it gave a better answer to problems arising when baggage or cargo was loaded by error on the wrong aircraft and also in cases of gratuitous carriage under Article 3 (1) (c). The majority rejected this proposed solution for the reasons stated above and because it arrived at the same conclusion by a circuitous method the only advantage of which was to take care of the very special case of stowaways, for which single exception there was no justification to undertake the additional complications which would be involved.
Note 5— It should be noted that under the language used in this paragraph a carrier could prevent a journey from being a single one under this Convention by refusing to agree that it is such, even though the facts indicate that the carrier and the passenger or consignor made arrangements for through transportation by connections. A minority of the Sub- Committee believed that the application of the Convention should be made to depend upon the factual situation and not upon the agreement of the carrier.
Note 6— The question whether unauthorized persons including stowaways should be dealt with under the Convention, and if so, in what manner, was the subject of considerable attention in the Sub-Committee. The majority favored a provision such as the above in order to avoid the possibility that such a person might under a number of jurisdictions have a right to recover unlimited amounts of damages and thus be in a better position than passengers travelling in the same aircraft. A minority of the Sub-Committee urged that the proviso be omitted, thus placing such unauthorized persons wholly out- side the Convention. In support of this, the minority claimed that the proviso resulted in imposing certain rules upon claims which did not arise under and were not otherwise governed by the Convention, that the proviso was ambiguous in that it did not clearly identify those rules of the Convention which would be applicable to such claims, and that no pro- vision was made for determining when such unauthorized person was in carriage by air and hence within this rule of the sub-paragraph, since obviously there is no agreement between the carrier and such person by which the places of departure and destination can be determined.
Note 7— Upon consideration of this sub-paragraph, the Sub- Committee determined to recommend to the full Committee that an appropriate provision be inserted in lieu of this provision which would permit the issuance of a single ticket in the case of persons travelling together in the same airplane as a group, subject to appropriate limitations as to the character of the group. Attention is also directed to the fact that inclusion of such a group provision will require that it be made clear under paragraph (4) that issuance of a ticket to the representative of the group will be sufficient to meet the requirements of the Convention.
Note 8— The Committee in Madrid adopted the above text. In order to take account of the “open ticket” (not containing the name of the carrier), the Sub-Committee recommends that a text in the following form should be substituted for the above: “The name and address of the carrier issuing the ticket. The name of any other carrier thereafter participating in the carriage shall be inserted in the ticket prior to such participation.“
Note 9— A minority of the Sub-Committee expressed the view that, with the exception of Article 6 (3), the provisions of Articles 6, 7, 8 and 9 of the Draft could be omitted from the Convention s'nce they dealt with questions which, in their opinion, could properly be left to the parties to be included in the contract. These views were not shared by the rest of the Sub-Committee, who were of the opinion that there was no reason to take away from the Convention provisions which have served a useful purpose. Article 5 comprises the subject matter governed by Article 5 through 11 of the Warsaw Convention.
Note 10— The text of this paragraph changes materially the present Warsaw provisions by omitting a number of the particulars enumerated in the present Convention or by taking them together in the more general requirement of “sufficient information to identify the cargo”.
Note 11— Some members thought it desirable to give a detailed list of the particulars required for identifying the cargo, in view of the uncertainty which might otherwise result. The majority felt, however, that the proposed text is entirely adequate for all practical purposes, because it would be impossible to specify all particulars required to deal with all kinds of cargo. The proviso follows closely the wording of the proviso in Article 3 (3) of the Brussels Convention of 1924 “for the Unification of Certain Rules Relating to Bills of Lading”.
Note 12— The moment at which the consignor's right of disposition ceases has been more clearly defined than it is in Article 12 (4) of the present Convention, which merely refers to Article 13.
Note 13— The present Convention does not provide for the transferability of the consignor's right of disposition. The present text does so. As in many cases of air transportation full negotiability will be impracticable, it has also seemed desirable, besides providing for a negotiable air waybill, to revise the non-negotiable air waybill to facilitate credit transactions. Some members felt that the way in which the right of disposition should be transferred should be left to the national laws, provided that the consignor's part of the air waybill would in every case have to be delivered. The majority felt, however, that without a positive rule as to how transfer of the right of disposition can be effected, the situation existing under the present Convention would be very little improved.
Note 14— The provisions of the present Convention as to the respective rights of the consignor and consignee in case of loss, damage or delay are not very clear except in case of successive carriage. Articles 13 (3) and 14 deal with them only partly and indirectly. A provision, independent of that of the consignor's right of disposition, has been incorporated.
Note 15— In Madrid the Legal Committee appointed a Sub- Committee to study, inter alia, the desirability and practicability of providing for a negotiable air waybill. The provisional conclusions of that Sub-Committee were that the commercial world wishes for such provision; that it would be difficult to prepare special uniform provisions dealing fully with this matter, and that in principle the solution proposed by the British Delegation of referring in matters of negotiability to the national laws relating to shipping bills of lading was therefore preferable. This Sub-Committee has reached the same conclusions.
Note 16— A majority of the Sub-Committee felt it desirable to adopt a conflict of laws rule to determine which national law should apply to all questions of negotiability, in order to avoid the uncertainty and lack of uniformity which would arise from the lack of such uniform choice of law. Some members were of the opinion that any choice of national law in this very complicated field would meet serious opposition and would thereby endanger the acceptance of these provisions concerning negotiability. They pointed out that a uniform conflict of laws rule did not exist with respect to shipping bills of lading law, and that the absence thereof had not caused serious difficulties for those interested in negotiability. As to the law to be applied, the Sub-Committees favoured the law of the place where the air waybill was issued, subject to the right of the consignor and carrier to agree upon a different law. No limitation of the law which might be thus chosen by the parties was thought necessary in this field. The proviso offers protection to the holder in good faith to the extent that the carrier would not be allowed to dispute the agreement as to choice of law expressed in the air waybill. Some members suggested that this protection should only be offered to persons who have acquired both in good faith and for value. It was pointed out, however, that there was here no question of determining the rights under the air waybill, but only of fixing the law to be applied, and that, therefore, the additional requirement of acquisition for value was unnecessary and undesirable, as it would be contrary to some national legal systems which might be applicable to the substantive matters of negotiability.
Note 17— In view of the fact that a certain number of national legislations already provide for negotiability of air waybills specifically or documents of carriage generally, and that the number doing so will probably increase, it was felt logical and desirable that the national law should apply. Only in the absence of applicable national law would it be necessary to resort to the national laws relating to shipping bills of lading. Specific provision has been made for certain limited aspects of negotiability, in view of the vagueness of the term “negotiability” which might otherwise be construed to include formal matters and questions of liability. The Sub- Committee decided that the carrier should not be obliged to issue a negotiable air waybill at the request of the consignor because it would be undesirable to apply, in this case, the law which is applied to shipping bills of lading. The greater speed of air transport and the lack of sufficient storerooms at a number of smaller airports would in many cases impose a heavy burden on the carriers if they had to issue negotiable air waybills under all circumstances, as is generally the case under maritime laws. The carrier's obligations in this respect should be left to the national laws without specific reference to the rules relating to shipping bills of lading.
Note 18— The Sub-Committee has provisionally included liability for delay of registered baggage and cargo within the provisions dealing with the period of liability for registered baggage and cargo but did not have time to consider fully all aspects of the problem. In his draft of March 1951 the Reporter proposed that the provisions of the Convention should extend from the moment cargo or registered baggage entered the custody of the carrier at the place of departure until the moment when it was delivered to the consignee or passenger at the place of destination. Although this principle was eventually rejected at the Eighth Session of the Legal Committee, after a tie vote, it might be desirable to give further consideration to this question. While it would have the effect of imposing the Convention rules upon certain surface carriage prior to departure by air and perhaps after arrival at the airport of destination, it would have the advantages of increasing international uniformity, providing greater certainty as compared with uncertainty as to where loss or damage occurred and eliminating present difficulties due to multiplicity of insurances. Under the above paragraph three separate periods have to be dealt with by different systems of law and different insurances, namely (a) the period from the time of collection by the carrier until the cargo and baggage reach the airport, which is governed by the law of the place of departure; (6) the carriage from airport to airport, which is governed by the law of the Convention so far as Contracting States are concerned; and (c) the period from the time when the cargo and baggage leave the airport of destination until they are delivered to the consignee or passenger at some point remote from the airport, after having been cleared through Customs. The carriers and their insurers desire the Convention rules to extend over the whole period during which the cargo and baggage are in the custody of the carrier because of the practical and legal difficulties involved by the other system.
Note 19— A majority of the Sub-Committee was of the opinion that, despite the fact that the Convention did not otherwise purport to establish or govern the personal liability of servants or agents as distinct from that of the carrier, provision should be made whereby the servant or agent would not be subjected to a risk of greater limits of liability than that to which the carrier would be subject for the same damage. The Sub-Committee also took into account the possibility that if the servant or agent were personally liable in such circumstances without limit, even in the absence of deliberate breach of duty, in practice the carrier might likewise be subjected to unlimited liability by reason of being required by law or agreement to indemnify the servant or agent. A minority was opposed to this sub-paragraph on the ground that since the conditions and circumstances under which servants or agents were personally liable were governed by national law and might differ substantially from the rules of liability of the carrier established by the Convention, the entire matter of the personal liability of servants or agents should be left to the respective national laws.
Note 20— The sums shown in brackets in this Article are those of the existing Convention, except the references in paragraph (2). The Sub-Committee has taken no decision on these amounts in view of the fact that the Committee has referred this aspect of the matter to the Council.
Note 21— The majority of the members of the Sub-Committee considered that, in order to constitute conduct which would involve unlimited liability, there must be three elements, namely: the act or omission must be intentional or deliberate; it must be a breach of duty; and it must have been done either with intent to cause damage or recklessly not caring whether damage was likely to result. The majority, therefore, considered that the phrase “breach of duty” the idea of which is comprehensible in all three languages and therefore correctly translatable, should be included in the formula of this important paragraph, because otherwise both of the first two elements above referred to might not be adequately covered. Other members of the Sub-Committee desired the inclusion of the phrase “breach of duty” for the purpose of making certain that a deliberate act involving damage, committed for the purpose of avoiding greater damage, was not conduct which could involve unlimited liability. A minority opposed the addition of “breach of duty” as being unnecessary in order to import the first two elements above referred to, which they considered were inherent or implied in the previous formula which did not include this phrase. They also considered that the addition of the phrase concerned was unnecessary in order to deal with the point about damage done to avoid greater damage, on the ground that an act done with intent to avoid greater damage was not done with intent to cause damage. The Sub-Committee discussed at length the meaning of the words “within the scope of their employment”, especially with respect to intentional acts committed by servants, such as acts of sabotage or theft. As there was not a complete agreement as to the meaning of these words, and as it was considered important that these words be construed in a uniform manner, the Sub-Committee recommends that the Committee give special attention to the problems arising in this connection.
Note 22— It will be observed that the periods for making claims in respect of damage to or partial loss of baggage and cargo have been extended to five and seven days respectively. The Sub-Committee considered that even seven days might not be sufficient in the case of a claim by a consignor in respect of cargo delivered to a far distant country, and recommends that the Legal Committee should give further consideration to this matter. It is desirable that the periods concerned should be limited as much as possible in the interests of carriers who have to make enquiries, but that they should not be so short as to impose hardship on passengers and consignors. In the meantime the Sub-Committee desires that the periods suggested should be regarded as tentative only.
Note 23— The Sub-Committee contemplated adding a further paragraph to this Article reading: (6) “Any of the courts mentioned in this Article shall be competent to try actions under this Convention”. Eventually it was considered that the additional paragraph might be miscontrued, and that it was not necessary because it appeared certain that Contracting States would arrange for their courts to be available and to exercise jurisdiction for the trial of actions in respect of claims arising under the Convention.
Note 24— The Sub-Committee considered the desirability of inserting another paragraph in this Article to provide for the submission of questions of interpretation of this Convention to the International Court of Justice, through the Council of ICAO, since some members of the Sub-Committee thought that such a system might facilitate uniform interpretation of the Convention. The majority, however, considered that such a provision would have little, if any, value because it is unlikely that cases arising under this Convention would become the subject of disputes between States.
Note 25— Articles 26 to 32 have been added to complete the draft. They are taken from the Reporter's Draft of March 1951 and follow the form of the draft of the revised Rome Convention settled in January 1951. They have, therefore, not been re-examined by the Sub-Committee.