CHAPTER 9

THE WARSAW CONVENTION

Warsaw Convention – is the convention for the unification of certain rules relating to international
transportation by Air. Ratified on Nov. 9, 1950 took effect Feb 7, 1951.

1. BINDING EFFECT – applies to all international transportation of persons, baggage or goods

performed by an aircraft gratuitously or for hire.

Objective is “to regulate in a uniform manner the conditions of international transportation by air”

2. PURPOSES – designed to protect and promote the international airline industry that was, at the
time of the drafting of the treaty, still in its infancy.

3. CONSTITUTIONALITY – Court explained “the treaty was a joint legislative and executive act. The
presumption is that it was first carefully studied and determined to be constitutional before it was
adopted and given the force of law in this country.”

4. COVERAGE – applies to international air carriage. Provides that the carrier is liable in international
air transportation for loss, damage or delay in the delivery of cargoes and death or injury to passengers.

a) Does not cover cases between the consignor/shipper and consignee.

b) Does not apply to international carriage by air performed by way to experimental trial by air
navigation undertakings with the view to the establishment of a regular line of air navigation, nor does it
apply to carriage performed in extraordinary circumstances outside the normal scope of an air carrier’s
business.

5. MEANING OF INTERNATIONAL TRANSPORTATION

There is international transportation within the Warsaw Convention when:

1) The place of departure and place of destination are within the territories of two contracting
countries regardless of whether or not there was a break in the transportation or transshipment;

2) Place of departure and place of destination is within the territory of a single contracting country if
there is an agreed stopping place within a territory subject to the sovereignty, mandate or authority of
another power, even though the power is not a party to the Convention.

6. PERIOD COVERED BY INTERNATIONAL TRANSPORTATION

GR: Means the period during which the baggage or goods are in charge of the carrier, whether in an
airport or on board an aircraft, or in the case of landing outside an airport, in any place whatsoever.
Does not cover any transport by land, sea or river performed outside an airport.
EXP: if transportation takes place in the performance of a contract for transportation by air, for the
purpose of loading, delivery or transshipment, any damage is presumed, subject to proof to the
contrary, to have been the result of an event which took place during transportation by air.

7. INTERNATIONAL CARRIER IS LIABLE if:

1) There is death of an injury to a passenger;

2) The death or injury was caused by accident; and

3) The accident happened on board, the aircraft, or while the passenger in embarking or disembarking.

Accident – means an event peculiar to air travel and external to the passenger.

For checked in baggage or goods – carrier is liable if damaged occurred during air transportation or
when there is delay.

8. LIMIT OF LIABILITY is provided in Art 22 as follows:

1) Transportation of passengers, - each passenger limited to 125,000 francs, damages may be awarded
in periodical payments, by special contract parties may agree to higher liability.

2) Transportation of checked baggage and goods – liability limited to 250 francs per kg, unless special
declaration of the value was made and has paid supplementary sum.

3) Objects that passenger takes charge himself – limit of liability 5,000 francs per passenger

4) Sums on French franc

Liability arises only if a passenger’s injury is caused by an unexpected or unusual event or happening
that is external to the passenger. (Art 17 of Warsaw Convention)

8.01 MONTREAL AGREEMENT AND CAB RULES ON LIMIT OF LIABILITY

8.02 TARIFF LIMITATIONS

That air carrier is not liable for the loss of baggage in an amount in excess of the limits specified in
the tariff which was filed with the proper authorities , such tariff is binding regardless of lack of
knowledge.

8.03 DEFENSES AGAINST LIMIT OF LIABILITY

Limit of liability is not applicable in case of:

1) Willful misconduct; - passenger can recover unlimited damages upon proof of wm.

3 essential elements for claim of willful misconduct:

i. An intentional act or omission done with conscious awareness that such an act or
omission done was wrongful;
 ii. An awareness of the probable consequences of an act or omission;

iii. A casual relationship between the act or omission and the injury sustained.

2) Gross negligence; - amounts to bad faith or willful misconduct

3) Absence of baggage check; - will deprive the carrier of its right to invoke the limited liability under
Warsaw Con.

4) If there was waiver on the part of the carrier; - when air carrier failed to raise timely objections
during trial when q&a regarding the actual claims and damages sustained by the passenger were asked.

5) If the carrier is estopped from invoking the provision on limit liability.

9. TORT LIABILITY

Warsaw Convention does not provide for an exclusive enumeration of instances when the carrier
is liable.

10. VENUE OF ACTION

Under Art 28 of WC, the plaintiff must bring the action for damages before:

1) The court where the carrier is domiciled;

2) The court where the carrier has its principal place of business

3) The court where the carrier has an establishment by which the contract has been made; or

4) The court of the place of destination.

Note: Article 28 of WC is jurisdictional in character not a venue provision.

11. NOTICE OF CLAIM OR COMPLAINT

Article 26 of WC, provides the rules on notice of claim:

1) Receipt by the person entitled to the delivery of baggage or goods without complaint shall be prima
facie evidence that the same have been delivered in good condition and in accordance with the
document of transportation.

2) In case of damage the person entitled to deliver must complain to the carrier forthwith after the
discovery of the damage, and, at the least, within 3 days from the date of receipt in the case of baggage
and 7 days from the date of receipt in the case of goods. In case of delay the complaint must be made at
the latest within 14 days from the date on which the baggage or goods have been placed at his disposal.

3) Every complaint must be made in writing upon the document of transportation or by separate
notice in writing dispatched within the times aforesaid.
4) Failing complaint within the times aforesaid, no action shall lie against the carrier, in the case of
fraud on his part.

11.01 PERIOD TO FILE:

1) Three days from receipt of the baggage; or

2) Seven days from receipt of goods; or

3) 14 days, in case of delay, counted from the time the baggage was placed at the disposal of the
passenger.

Note: the requirement that there is a notice of claim within the given period is not applicable if there is
fraud on the part of the carrier.

12. PRESCRIPTION

Article 29 of Warsaw Convention provides:

1) The right to damages shall be extinguished if an action is not brought within two years, reckoned
from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived,
or from the date on which the carriage stopped.

2) The method of calculating the period of limitation shall be determined by the law of the Court
seized of the case.

12.01 NATURE OF PRESCRIPTIVE PERIOD

Art. 29 par 2 was intended only to let local laws determine whether an action had been commenced
within 2-year period, and within our jurisdiction an action shall be deemed commenced upon the filing
of a complaint.

12.02 NOT APPLICABLE TO OTHER CAUSES OF ACTION

Warsaw Convention does not regulate, much less exempt, the carrier from liability for damages for
violating the rights of its passengers under the contract of carriage, especially if willful misconduct on
the part of the carrier’s employees is found or established. Hence, 2 year prescriptive period does not
apply if caused of action is based on quasi-delict.

13. SUCCESSIVE CARRIERS

ART 1 (3) Transportation to be performed by several successive carriers shall be deemed, for the
purposes of this convention, to be one undivided transportation, if it has been regarded by the parties
as a single contract or series of contracts, and it shall not lose its int’l character merely because one
contract or series of contracts is to be performed entirely within the territory subject of the sovereignty,
suzerainty, mandate or authority of the same high contracting party.

13.01 LIABILITY OF AGENT

 The fact that a successive carrier is considered an agent does not necessarily excuse the agent
from liability. The agent is liable for its own negligent acts or omission in the performance of its duties.

14. FORMALITIES

Warsaw Convention provides for the basic contents of the Passenger Ticket, the Baggage check as
well as the Air way bill. The issuance of an Air Way Bill is mandatory.

14.01 EFFECT OF NON-COMPLIANCE

Non-compliance with the mandatory provision on formality may result in the non-application of
the limit of liability.