The Warsaw Convention-GEORGE W ORR

The Warsaw Convention
Author(s): George W. Orr

Source: Virginia Law Review, Vol. 31, No. 2, Symposium: Aviation Law Looks to the Future (Mar.
, 1945), pp. 423-437
Published by: Virginia Law Review
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1945] THE WARSAW CONVENTION 423
THE WARSAW CONVENTION*

THE "Conventionfor the Unificationof Certain Rules Relat-
ing to InternationalTransportationby Air" is of interestto
all lawyers, whetheror not they are engaged in a practice that
ordinarilyincludes internationallaw. This is because the pro-
visions and limitationsof the Warsaw Convention may apply
to a passenger on a purely local flight,when it is a part of an
internationalflight as defined by the Convention; and passen-
gers on internationalflightsare from all sections of the nation,
hence lawyers fromall sections of the nation are called upon to
handle claims or litigationfor their clients. There have already
been many cases involving this convention,the writer having
been responsible for the handling of considerablymore than a
hundred,and with the anticipatedexpansion of internationalair
transport,a proportionateincrease may be expectedin the future.
The Warsaw Convention is carefully and precisely drawn.
While not entirelycompletein itself,since no right of action is
created and questions of procedure are governed by the law of
the court to which each case is submitted,the provisionsare clear
and quite understandableto the average lawyer withoutthe serv-
ice of a specialist in internationallaw.' There are few reported
cases to date, although a numberof cases are presentlypending.
This article must, therefore,be more in the nature of a discus-
sion of the Conventionthan a legal treatise,althoughmost of the
cases upon which we have had decisions will be cited.
A brief background of the Convention may be of interest.
There has been a movementfor internationalcodificationof pri-
*When the author attended The American Bar Association Round Table
at Chicago in September 1944, to read a paper on "The Aviation Insurance
Policy," he learned with surprise that although many lawyers present were
interestedin the Warsaw Convention, they were not familiar with it. Be-
cause of this experience,this article was writtenfrom the viewpoint of infor-
mation to a person with no knowledge of the Convention and intended as
merely an introductionto the basic ideas and principles involved.
1. The whole text may be found in 49 STAT. 3000 (1934).
424 VIRGINIA LAW REVIEW [Vol. 31
vate air law since 1923 whenthe FrenchGovernment proposed

an internationalconference on the subject. The First Interna-
tionalConference on PrivateAerial Law took place in October
1925 at Paris; seventy-six delegates,representing na-
forty-one
tions,but not the UnitedStates,tookpart. At thatconference
was planneda continuingcommissionof expertsto prepare
draftsof conventions for submissionto successiveinternational
governmental conferences.This commission is calledtheComite
InternationalTechnique d'Experts JuridiquesAeriens (Interna-
tional Technical Commissionof Experts in Air Law), com-
monlyreferred to as C. I. T. E. J.A., and has continuedto func-
tion up to the beginningof the presentwar. It has drafted
twelveconventions as follows: I. Liabilityto Passengersand
Shippers; II. Liabilityfor TerrestrialDamage; III. Liabil-
ity for Collision Damage; IV. Registrationof AircraftTi-
tle; V. Mortgagesof Aircraft;VI. Attachment of Aircraft;
VII. AircraftCommander'sAuthority;VIII. AircraftPerson-
nel's Contractof Employment; IX. Salvage at Sea; X. Salvage
on Land; XI. Lessor's and Lessee's Relative Responsibility;
XII. Interpretation and Applicationof These Conventions.
C. I. T. E. J. A. includesin its membership manyleadinglaw
expertsof Europe. Our Governmentappointedno members
duringits firstnineyears,sendingonlyobservers, butbeginning
in 1935 theUnitedStateshas sentmembers to theannualmeet-
ingsofC. I. T. E. J. A.
Threeof the above twelveconventions are of particularinter-
est becauseinternational conferenceshave adoptedthemand an
effort has beenmade to get sufficient ratification
by the various
nationsoftheworldto putthemintoeffect.These are: I. Lia-
bilityto Passengersand Shippers(knownas the Warsaw Con-
vention); II. Liabilityfor TerrestrialDamage (knownas the
Rome Convention);and IX. Salvage at Sea (known as the
BrusselsSalvage at Sea Convention).
The Warsaw Convention(Liabilityto Passengersand Ship-
pers) was adoptedby representatives of governments through-
out theworldin Warsaw in 1929 and is as yettheonlyone that
has becomebindingon theUnitedStatesor has receivedgeneral
adherence. It has been ratifiedor adheredto by most of the
countriesof Europe,a few Latin Americannationsand by the

date of United Statesadherencebe-
UnitedStates,the effective
ing October29th,1934.2 The purposeof theConvention, which
2. RATIFICATIONS
The effective was February13, 1933. The dates
date of the Convenition
followingthe names of the countriesare the dates of deposit.
Australia (includingPapua, NorfolkIsland, New Guinea,and Nauru)
August 1, 1935
Belgium............ July 13, 1936
Brazil............ May 2, 1931
Czechoslovakia ............ November17, 1934
Denmark............ July 3, 1937
France (includingcolonies,protectorates and mandates)....November15, 1932
Germany .. .......%. September30, 1933
Great Britain........... February14, 1933
Greece........... January11, 1938
Italy........... February14, 1933
Latvia........... November15, 1932
Netherlands(includingNetherlandsIndies, Surinamand Curacao)
July1, 1933
Norway....... July 3, 1937
Poland. ..... November15, 1932
Rumania....... July8, 1931
Spain....... March 31, 1930
Sweden....... July3, 1937
Switzerland ....... May 9, 1934
Union of Soviet SocialistRepublics.. August20, 1934
.......................................
Yugoslavia......................................... May 27, 1931
ADHXRENCfS
The effective dates of adherencesare ninetydays afterthe dates of notifi-
cation. The dates followingthenamesof the adheringcountriesare thedates
of notification.
UnitedStates of America....................................... July31, 1934
BritishColonies,Protectorates, etc.: Aden,Burma................ February24, 1938
Bahamas,Barbados; Bermuda;BritishGuiana; BritishHonduras; Ceylon;
Cyprus; Falkland Islands and Dependencies;Fiji; Gambia (Colony and
Protectorate); Gibraltar; Gold Coast of Africa: (a) Colony, (b)
Ashanti, (c) NorthernTerritories,(d) Togoland under BritishMan-
date: Hong Kong; Jamaica (includingthe Turks and Caicos Islands,
and the CaymanIslands); Kenya (Colony and Protectorate);the Lee-
ward Islands: Antigua,Dominica,Montserrat, and Ne-
St. Christopher
vis, VirginIslands; Malta; Mauritius;Nigeria: (a) Colony,(b) Pro-
tectorate,(c) Cameroonsunder BritishMandate: NorthernRhodesia;
NyasalandProtectorate;Palestine (excludingTrans-Jordania);St. He-
lena and Ascencion; Seychelles;Sierra Leone (Colony and Protecto-
rate); BritishSomaliland;StraitsSettlements; Territoryof Tanganyika;
426 VIRGINIA LAW REVIE:W [Vol. 31
deals only with internationaltransportationof persons,baggage,

or goods performedby aircraftfor hire, is to effecta uniformity
of procedure and remedies. After being in operation about a
decade, its resultsappear to have been most helpfuland satisfac-
tory. Adherence by a majority of the importantnations of the
world has extended the benefitsvery widely, although the Con-
vention is effectivein the Western Hemisphere only in the
United States, Mexico, Brazil, and certain European posses-
sions. On June 15th, 1934, the Senate of the United States of
America gave its advice and consent to the adherence by the
Presidentto the Convention. On June27th, 1934, the President
declared the adherence of the United States to the Convention,
and in accordance with its termsthe governmentof Poland was
notifiedon July 31st, 1934, and the adherence of the United
States accordinglytook effecton the 90th day thereafter,or on
October 29th, 1934.
The officialversion is French, but the Senate had beforeit the
English translation,as quoted herein,and therecan be no doubt
about the intentionof the Senate that the English translation
(which was Americanized with respect to the British trans-
lation) is to be accepted by American courts as the officiallan-
guage. Chapter 1, Article 1, provides:
Trinidadand Tobago; Uganda Protectorate;Islands of the Western
Pacific: BritishProtectorate of the SolomonIslands,Colonyof the Gil-
bertand Ellice Islands; the WindwardIslands: Grenada,St. Lucia, St.
Vincent;Protectorate of Zanzibar.. December3, 1934
...........................
FederatedMalay States: Negri Sembilan,Pahang, Perak, Selangor; Un-
federatedMalay States: Johore,Kedah, Kelantan,Perlis, Trengganu,
Brunei................................. July 4, 1936
NorthBorneo,Sarawak,and Tonga.. ...............................
July4, 1936
ChannelIslandsand Isle of Man.. February14, 1933
...............................
Trans-Jordania ................................. December17, 1937
Danzig................................. March 18,1935
Finland....... July3, 1937
Hungary....... May 29, 1936
India....... November20, 1934
Ireland....... September 20, 1935
Liberia.M.......... May 2, 1942
Liechtenstein ............ -..May 9, 1934
Mexico..............--.. February14, 1933
New Zealand (includingWesternSamoa) ................................... April6, 1937
Newfoundland ................... July5, 1939
SouthernRhodesia......................................................................
January3, 1935
"(1) This Convention shall apply to all internationaltrans-

portation of persons, baggage or goods performedby air-
craft for hire. It shall apply equally to gratuitous trans-
portation by aircraftperformedby an air transportation
enterprise.
"(2) For the purposes of this Conventionthe expression 'in-
ternational transportation'shall mean any transportation
in which,according to the contractmade by the parties,the
place of departureand the place of destination,whetheror
not there be a break in the transportationor a transship-
ment,are situated eitherwithinthe territoriesof two HigTh
ContractingParties, or withinthe territoryof a sing-leHigh
ContractingParty, if thereis an agreed stoppillgplace with-
in a territorysubject to the sovereignty,suzerainty,manl-
date or authorityof anotherPower, even thoughthat Power
is not a party to this Convention. Transportationwithout
such an agreed stopping place between territoriessubject
to the sovereignity,suzerainty,mandate or authorityof the
same High ContractingParty shall not be deemed to be in-
ternationalfor the purposes of this Convention.
"(3) Transportation to be performedby several successive
air carriers shall be deemed, for the purposes of this Con-
vention, to be one undivided transportation,if it has been
regarded by the parties as a single operation,whetherit has
been agreed upon under the formof a single contractor of
a series of contracts,and it shall not lose its international
character merely because one contract or a series of con-
tracts is to be performedentirelywithina territorysubject
to the sovereignty,suzerainty,mandate or authorityof the
same High ContractingParty."
It will be noted under article one that the Conventionapplies
to internationaltransportationby aircraftfor hire, but that it in-
cludes gratuitoustransportation. Whether "internationaltrans-
portation" comes within the Convention,is determined,not bv
the place of accident,but by the contractof transportation. The
Conventionapplies when the place of departureand the place of
destination,as determinedby the contract,are each within the
territoryof a partyto the Convention,3or withinthe territoryof
3. Wymanv. Pan American,181 N. Y. Misc. 963, 43 N. Y. S. (2d) 420

(1943); 1943U. S. Av. R. 1; 235 C. C. H. 1943Av. Law Serv. 1348. This
case involvedthedeathof a passengerbetweenGuamand Manila whileon one
a singleparty,if thereis an agreed stoppingplace in a foreignju-

risdiction,even thoughthat jurisdictionis not a partyto the Con-
vention.4For instance,the United States and Mexico are parties
to the Convention; Cuba is not. A ticketor contractfromChi-
cago to Mexico City would subject that whole flightto the Con-
vention. If injury were sustained at Chicago in taking off,even
though this accident happened on a portion of the flight,say,
from Chicago to St. Louis, the Convention would apply as to
those passengers holding ticketsfrom Chicago to Mexico City.
Naturally,it would not apply to any passengersaboard who held
ticketsonly from Chicago to St. Louis, so it is possible to have
passengers aboard both subject and not subject to the Conven-
tion, all in the same accident. The Conventionwould not apply
to passengers, for instance,from Miami to Cuba, even though
this is an internationalflightin the usual sense of that term,as
Cuba is not a partyto the Convention. But a returnticketfrom
Miami to Cuba to Miami (or any other point in the United
States) would be subject to the Conventionas the point of de-
parture and the place of destinationwould be within the juris-
diction of a party to the Convention and there would be an
agreed stoppingplace in a foreignjurisdiction,it not being nec-
essary that the jurisdictionof the agreed stoppingplace be that
of a partyto the Convention. Therefore,if passengers or goods
were injured on the take-offfrom Miami or the landing at Ha-
vana, some of the passengers might be subject to the Warsaw
Convention,those with return tickets to Miami, while others,
those with one way tickets,would not be subject to the Conven-
tion.
Articlethreesimplyclarifiesthe explanationgiven above. For
leg of a throughpassage fromSan Franciscoto Hong Kong, bothpointsof

departureand destination beingin jurisdictions
adheringto the Warsaw Con-
vention. The Convention was declaredapplicableand recoverylimitedto the
limitprovidedby the Convention.This is presentlythe leading American
case as it decidesseveralpointsof importance.It was decidedby Schreiber,
J., Stateof N. Y., SupremeCourt,New York County,June25, 1943,affirmed
unanimously withoutopinionby the AppellateDivision and appealedto the
N. Y. Court of Appeals,whichunanimously affirmed
the judgmentof the
lower courtswithoutopinion,December1944.
4. Greinv. ImperialAirwaysLtd. (1937) 1 K. B. 50, 1936 U. S. Av. R.
211.
instance,in the illustrationsuggested, Chicago to Mexico City,

it makes no differenceif a part of the transportation,for ex-
ample, from Chicago to Brownsville, is to be performedby
American Airlines and the balance, Brownsvilleto Mexico City,
is to be performedby Pan American Airways, provided the
whole contractwas forthe journey fromChicago to Mexico City,
even though a portionof the tripwould be covered by an Ameri-
can Airlines ticketand the balance by a Pan American ticket.
Chapter II specifiesthe forms of ticket,5baggage check and
Air Waybill,6but the next item of particularinterestis Chapter
III, Liability of the Carrier.
"Article 17. Injury to passenger. The carrier shall be liable
for damage sustained in the event of the death or wounding
of a passenger or any other bodily injury sufferedby a pas-
senger,if the accidentwhich caused the damage so sustained
took place on board the aircraftor in the course of any of the
operationsof embarkingor disembarking.
"Article 18. Damage to goods and baggage. (1) The carrier
shall be liable for damage sustained in the event of the de-
structionor loss of, or of damage to, any checked baggage
or any goods, if the occurrencewhich caused the damage so
sustained took place during the transportationby air.
"Definitionof air transportation. (2) The transportationby
air within the meaning of the preceding paragraph shall
comprisethe period during which the baggage or goods are
in charge of the carrier,whetherin an airport or on board
an aircraft,or, in the case of a landing outside an airport,
in any place whatsoever.
"(3) The period of transportationby air shall not extend to
any transportationby land, by sea or by river performed
outside an airport. If such transportationtakes place in
the performanceof a contractfor transportationby air, for
the purpose of loading, deliveryor transshipment, any dam-
age is presumed,subject to proof to the contrary,to have
been the result of an event which took place duringthe
transportationby air."
It will be noted that "The carriershall be liable for damages"
5. See note 3 supra.

6S Westminster Bank v. Imperial Airways, K. B. D., June 29, 1936, 55 L.
L. R 242; 235 C. C. H. 1936 Av. Law Serv. ? 904; 1936 U. S. Av. R. 39.
in theeventof deathand injury,so bothdeathclaimsand claims

forinjuriescome withinthe controland limitation of the Con-
vention. This is, however,not a "liabilitywithoutfault"law,
butit does placetheburdenon thecarrierin theeventof injury
to passengersor passengers'property.That is accomplished by
Article20 as follows:
"Exemption- All necessary measures taken- Impossibility.
(1) The carriershall not be liableif it provesthatit and
its agentshave takenall necessarymeasuresto avoid the
damageor thatit was impossible forit or themto takesuch
measures.
"(2) Jnthe transportation of goods and baggagethe carrier
shallnotbe liableifit provesthatthedamagewas occasioned
by all errorin piloting,in thehandlingof theaircraftor in
navigationand that,in all otherrespects,it and his agents
havetakenall necessarymeasuresto avoid thedamage."
Thus, thecarriershallnot be liableif it provesthatall neces-
sarymeasuresto avoid thedamageweretakenor thatit was im-
possibleto take such measures. Therefore, if the carriercan
provethattheaccidentwvasan Act of God or its cause was be-
yondits control,thereis a completeexemption fromany damage
fordeathor injuryto passengersor goods. This saves the law
fromthe rankinjusticeof a liabilitywithoutfaultstatute,and
placesthecarrierin thepositionthatifit can offeran affirmative
defenseshowingthateverymeasurenecessaryand possiblewas
takento avertthe damage,all liabilitywouldbe avoided. It is
to noticethattheprovisionwithrespectto goods and
interesting
baggagegivesthecarrierthefurther exemption fromdamageif
an in
thesame was occasionedby error piloting,in thehandling
or in navigation.
of theaircraft,
Article21 providesthatif thecarrierprovesthatthe damage
was causedor contributed to by negligence of theinjuredperson
thecourtmay,in accordancewithitsown law, exoneratethecar-
rierwhollyor partlyfromits liability. The limitof liabilityis
in Article22.
stipulated
"Passengers. (1) In the transportation of passengersthe
liabilityof thecarrierforeach passengershallbe limitedto
thesumof 125,000francs. Where,in accordancewiththe
law of the court to which the case is submitted,damages

may be awarded in the form of periodicalpayments,the
equivalent capital value of the said paymentsshall not ex-
ceed 125,000 francs. Nevertheless,by special contract,the
carrier and the passengers may agree to a higher limit of
liability.
"Baggage and goods. (2) In the transportationof checked
baggage and of goods, the liability of the carrier shall be
limited to the 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 declarationof the value
at deliveryand has paid a supplementarysum if the case so
requires. In that case the carrierwill be liable to pay a sum
not exceeding the declared sum, unless it proves that that
sum is greater than the actual value to the consignorat de-
livery.
"Property in passengers' charge. (3) As regards objects of
which the passenger takes charge himselfthe liabilityof the
carriershall be limitedto 5,000 francsper passenger.
"Standard of currency. (4) The sums mentionedabove shall
be deemed to referto the French franc consistingof 65 /2
milligramsof gold at the standard of finenessof nine hun-
dred thousandths. These suimsmay be convertedinto any
national currencyin round figures."
The fact that these limits are given in francs does not cause
uncertainty,regardlessof the fluctuationof the value of the franc,
because the standard of finenessis fixed in gold. The standard
provided by the Convention, with relation to our present gold
standard, is $.066335 per franc. Therefore,the limit of liability
for the death or injury of a passenger,fixedat 125,000 francsis
$8,291.87 United States currency. The 250 francsprovided per
kilogram for baggage and goods amounts to $16.58 per kilo-
gram, which is 2.2046 lbs. The 5,000 francs provided for ob-
jects of which the passenger takes charge himself amounts to
$331.67. It should be noted that these are not indemnitiesbut
limitations. It is thereforeup to the passenger to justify dam-
ages withinthe limit; but he is preventedfromgettingdamages
beyond the limits specified,regardless of the amount of his loss.
All air lines provide the passengers with the opportunityto de-
clare excess value and to pay an additional sum for same. This
mustnotbe confused, as it oftenis by passengers,

withtheirdec-
larationof excess weight,for whichtheypay. Excess weight
naturallyhas nothingto do withexcessvalue. If thepassenger
does notdeclareexcessvalue or provideotherinsurance, he sim-
ply mustcontenthimselfwiththe limitsprovidedby the Con-
vention.
Article23 prohibitsthecarrierfromrelievingitselfof liability
or fromfixinga lowerlimitthanis laid downin theConvention,
whileit is providedin Article24 thatany actionfor damages
underArticles17 and 18 can onlybe broughtsubjectto theCon-
ventionand withinthelimitsset out in theConvention.
Article25 provides:
"(1) The carriershallnotbe entitled to avail itselfofthepro-
visionsof thisConventionwhichexcludeor limitits liabil-
ity,if the damageis caused by its wilfulmisconduct or by
suchdefaulton itspartas, in accordancewiththelaw of the
courtto whichthe case is submitted, is consideredto be
equivalentto wilfulmisconduct.
"(2) Similarly, the carriershallnotbe entitledto avail itself
of the said provisions,if the damage is caused underthe
same circumstances by anyagentof thecarrieractingwith-
in the scope of his employment."
This Articleprovidesthe"Escape provision". It willbe seen,
however,thatit is verystrictand placestheburdenon theplain-
tiffto provewilfulmisconduct or suchdefaulton thepartof the
carrieror its agent actingwithinthe scope of his employment
thatthecourtwouldconsiderto be theequivalentof wilfulmis-
conduct. This is not even wilfulnegligence,
but wilfulmiscon-
duct,whichis, in the writer'sopinion,a muchmorerestricted
term. For instance,in W/assv. Stephens' theNew York Court
of Appealssaid:
"But theword 'wilfully'in the statutemeanssomething more
than a voluntaryact, and more also than an intentional
act whichin factis wrongful.It includestheidea ofan act
intentionallydone witha wrongful purpose,or witha de-
sign to injureanother,or one committed out of merewan-
tonnessor lawlessness."
7. 83 Sickels 123 (N. Y. 1891).
19451 THE WARSAW CONVENTION 433
The leadingEnglishcase on the point,Lezwisv. GreatWest-

ernRy.,Yis writtenby Lord JusticeCottonwho says:
" * * * Willfulmisconduct is somethingentirely
differ-
ent fromnegligence,and far beyondit, whetherthe negli-
gencebe culpable,or gross,or howsoeverdenominated."9
The propertranslation of the worddol in the originalFrench

textof thetreatywas madea pointin Wyman v. Pan Amineric(an
Airzways.10In Factorv. Lauben-Limer,1"it is said:
themeaningof a treatywe maylook beyond
"In ascertaining
and diplomaticcorre-
its writtenwordsto the negotiations
partiesrelatingto the subject
spondenceof the contracting
matter."
The translation of theworddol was givenconsiderable atten-
tion in severalconferencesof the Warsaw Conference of 1929
whentheconvention was drafted.The conclusionof thediscus-
withrespectto its Englishtrans-
sion on thispoint,particularly
lation,is givenin theminutesof the7th Session,12whenSir Al-
fredDennis stated:
"I wouldlikeit to be notedin theminutesthatit followsfrom
the views that have been exchangedthat we are able to
translatethese words into the English expression'wilful
misconduct',whichis veryfamiliar,and whichis verywell
definedin our law."
There would, therefore,appear to be no doubt as to the under-
standing of the way the framersof the conventionexpected the
word dol to be translatedinto the English language. The trans-
lations used by Great Britain, the United States, and Canada,13
all translatethe word "wilfulmisconduct".
8. 3 Q. B. D. 195,213 (1877).
9. See also: In re Burns,218 Mass. 8, 105 N. E. 601 (1914); Walker v.
Bacon, 132 Cal. App. 625, 23 P. (2d) 520 (1933); Wick v. Gunn,66 Okla.
316, 169 Pac. 1087 (1917).
11. 290 U. S. 276, 294-5,54 Sup. Ct. 191,196,78 L. Ed. 315, 316 (1933).
12. P. 140.
13. The Canadian Parliamenthas authorizedadherenceto the Convention
and passed necessarylegislation,but the law has not been made effective by
the GovernorirkCouncil. 1939U. S. Av. R. 303.
The leading English case of Grein v. Imperial Airways,

Ltd.,14furnishesan excellentillustrationof the applicationof the
Conventionto an action for death. This was a suit by a widow
for the death of her husband, a passenger in a scheduledairliner
which collided with a radio tower, resultingin the deaths of all
on board. The transportationcontractedfor was a round trip
flightfrom London with a stop-overin Belgium. The justices
agreed that the plaintiffhad establishedthe negligenceof the de-
fendant,but the defendant'sliabilitywas neverthelesslimited,in
view of the internationalnatureof thetransportation,15to 125,000
francsor its equivalent in English currency. While the burden
is on the air carrier to avoid liabilityas provided by article 20
supra, it is undoubtedlyon the plaintiffto plead and prove wilful
misconduct.1
No rightof action for wrongfuldeath is provided by the Con-
vention,17so apparently the party having the right of action
would have to be determinedby the applicable Death Act of the
place of accident.18 If on the high seas, the Federal Death on the
High Seas Act would 'apply. Article28 does state that an action
must be brought,at the plaintiff'soption, in the territoryof one
of the parties to the Convention,either before the court of the
domicile of the carrier,his principleplace of business, or where
he has a place of business throughwhich the contractwas made,
or place of destination. Questions of procedure are determined
by the court to which the case is submitted.
Article 29 imposes a time limit on the action by a provision
that the right to damages shall be extinguishedif action is not
broughtwithin two years from date of arrival, or scheduled ar-
rival at destination, or from date on which transportation
stopped; the calculationof the period of limitationis to be deter-
mined by the court to which the case is committed.

15. Garcia and Alvarez (Diaz) v. Pan AmericanAirways,N. Y. Supreme
Court,Westchester County,Sept. 8, 1944; 235 C. C. H. 1944Av. Law Serv.
1366.
17. Choy v. Pan AmericanAirways; 1041 A. M. C. 483; 1942 U. S. Av.
R. 93; 235 C. C. H. 1941Av. Law Serv. ? 3063 (S. D. N. Y. 1941).
Conclusion
Manyinterestinglegalpointshave developedas to thelegality
and scope of the Warsaw Convention. The followingconclu-
sionsappearto be indicatedby precedent.
First, the Warsaw Conventionis the "supremeLaw of the
Land" and trialcourts,federaland state,mustgive effectto its
provisionslimitingthe carrier's responsibility.The United
States Constitutiondeclares:19
"This Constitution, and the Laws of the UnitedStateswhich
shall be made in Pursuancethereof;and all Treatiesmade,
or whichshall be made,underthe Authority of theUnited
States, shall be the supremeLaw of the Land; and the
Judgesin everyState shall be boundthereby, any Thing in
the Constitution or Laws of any Stateto the Contrarynot-
withstanding."
Unlikethesituationin Englandand in othercountries, where
a treatyis lookeduponas a compactor bargainto be carriedout
by the executiveand legislativedepartments of the government
and not by the courts,20 a treatyenteredinto by the United
Statesis a law operatingand bindingupon thecourts,stateand
federal,whichare tinderthe same obligationto give it effectas
theyare to enforcethe Constitutionitself.21
Second,the Warsaw Conventionis a self-executing treaty.22
In Contmonwftealthv. HawesY23a decisionthatwas approvedand
describedas a "veryable one" bythe SupremeCourtin U. S. v.
Rauscher24 ChiefJusticeLindsaysaid:
19. Article6, Clause 2.
20. U. S. v. Rauscher,119 U. S. 407,7 Sup. Ct. 234,30 L. Ed. 425 (1886).
21. U. S. v. Rauscher,supra note20; Fosterv. Nielson,2 Pet. 253 (U. S.
1829); Dainese v. Hale, 91 U. S. 13, 23 L. Ed. 190 (1875); Asakurav. Se-
attle,265 U. S. 332,44 Sup. Ct. 515,68 L. Ed. 1041 (1923); Valentinev. U.
S. ex rel. Neidecker,299 U. S. 5, 57 Sup. Ct. 100,81 L. Ed. 5 (1936); Ba-
cardi Corp.v. Domenech,311 U. S. 150,61 Sup. Ct. 219,85 L. Ed. 98 (1940).
22. In Indemnity InsuranceCompanyv. Pan AmericanAirways,Inc., et al.,
13 U. S. L. W. 2334 (1944), thecourtheld: (1) thattheWarsaw Convention is
notunconstitutionalbecauseit encroacheson thepowver of Congressto regulate
commerce;(2) that the Conventionis self-executing;'3) thatthe treatyis
not invalidon thegroundthatits applicationwoulddeprivethe plaintiff of his
propertywithoutdue processof law.
23. 13 Bush 697 (Ky. 1878).
24. 119 U. S. 407,428, 7 Sup. Ct. 234, 245, 30 L. Ed. 425,432 (1886).
"When it is providedby treatythatcertainacts shall not be

done,or thatcertainlimitations or restrictions
shall not be
disregarded or exceededbythecontracting parties,thecom-
pact does not need to be supplemented by legislativeor ex-
ecutiveaction,to authorizethe courtsof justiceto decline
to overridethoselimitations or to exceedtheprescribed re-
for the palpableand all sufficient
strictions, reason,that
to do so wouldbe notonlyto violatethepublicfaith,butto
transgress the 'supremelaw of the land.'"n25
Third,Public Policyof a statewill not interferewiththe en-
forcement of treatyprovisions. The publicpolicyof thestateis,
of course,subordinatedto the requirements of the Constitution,
so in the enforcementof treatyprovisionsno questionarises in
thisregard. See U. S. v. Belnont,26wherethe SupremeCourt
said:
"We do not pause to inquirewhetherin facttherewas any
policyof the State of New York to be infringed,sincewe
are ofopinionthatno statepolicycan prevailagainstthein-
compacthereinvolved."27
ternational
Fourth,the Warsaw Conventionis a valid exerciseof the
treatymakingpowerof theUnitedStates. The authority of the
federalgovernment "to regulatecommercewithforeignnations"
is grantedby the Constitution.28 Concerningthe scope of the
powerthus conferred, ChiefJusticeHughes said in Board of
Trusteesv. U. S.29:
"The wordsof the Constitution 'comprehend everyspeciesof
commercial intercourse
betweenthe United States and for-
eign nations. No sort of tradecan be carriedon between
thiscountry and anyother,to whichthispowerdoes notex-
tend.' Gibbonsv. Ogden,9 Wheat. 1, 193. It is an essen-
tial attribute
of the powerthatit is exclusiveand plenary.
As an exclusivepower,its exercisemaynotbe limited,qual-
ifiedor impededto any extentby stateaction. Id. pp. 196-
25. Also see Hamiltonv. Erie, 219 N. Y. 343, 114 N. E. 399 (1916); Techt
v. Hughes,229 N. Y. 222, 128 N. E. 185 (1920).
26. 301 U. S. 324,327, 57 Sup. Ct. 758, 759, 81 L. Ed. 1134,1137 (1936),
27. See also U. S. v. Pink,315 U. S. 203, 62 Sup. Ct. 552, 86 L. Ed. 796
(1941).
28. U. S. CONST.Art. I, ? 8.
29. 289 U. S. 48, 56-7,77 L. Ed. 1025,1028 (1932).
1945] THE WARSAW CONVENTlON 437
200; Brown v. Maryland,12 Wheat. 419, 446; Alniyv.

California,24 How. 169, 173; Buttfield
v. Stranahan,192
U. S. 470, 492, 493."
The treaty-making powerof the UnitedStates extendsto all
mattersconfided by theConstitutionto theFederalGovernment,
including,of course,the powerto regulatecommercewithfor-
eignnations. In Holden v. Joy,30theSupremeCourtstated:
"Express power is given to the President,by and with the
advice and consentof the Senate, to make treaties,pro-
videdtwo-thirds of the 'senatorspresentconcur,and inas-
muchas the poweris given,in generalterms,withoutany
description of the objects intendedto be embracedwithin
its scope,it mustbe assumedthattheframersof theConsti-
tutionintendedthat it should extendto all those objects
which in the intercourse of nationshad usuallybeen re-
gardedas the propersubjectsof negotiation and treaty,if
not inconsistentwiththe natureof our government and the
relationbetweenthe States and the United States."31
GeorgeW. Orr.
NEW YORK,N. Y.
30. 17 Wall. 211, 242-3 (U. S. 1872).
31. See also Holmes v. Jenninson, 14 Pet. 540, 569-70 (U. S. 1840); Geo-
froyv. Riggs,133 U. S. 258, 10 Sup. Ct. 295,33 L. Ed. 642 (1889). Numer-
ous examplesmay be cited of treatieswhich,like the Warsaw Convention,
regulatethe privaterightof citizensof thiscountry, includingtheirrightsas
againstone another. The ShipownersLiabilityConvention of 1936,54 STAT.
1693 (1939) is one such treaty. In O'Donnell v. Great Lakes Dredge-Dock
Co., 318 U. S. 36, 42, 63 Sup. Ct. 488, 491, 87 L. Ed. 596, 601 (1942), the
rightof an Americancitizento recovermaintenance and care froman Amer-
ican shipownerwas held to be confirmed by article2 of the Convention re-
ferredto. Otherexamplesof suchtreatiesare referred to in WIGMORZ,GuIDF
To AMERICAN INTERNATIONAL LAW AND PRACTICE (1863), underthe head-
ing "Treaties ConcerningPrivate National Law."

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The Warsaw Convention-GEORGE W ORR

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The Warsaw Convention

Author(s): George W. Orr

THE WARSAW CONVENTION*

vate air law since 1923 whenthe FrenchGovernment proposed

countriesof Europe,a few Latin Americannationsand by the

deals only with internationaltransportationof persons,baggage,

"(1) This Convention shall apply to all internationaltrans-

3. Wymanv. Pan American,181 N. Y. Misc. 963, 43 N. Y. S. (2d) 420

a singleparty,if thereis an agreed stoppingplace in a foreignju-

leg of a throughpassage fromSan Franciscoto Hong Kong, bothpointsof

instance,in the illustrationsuggested, Chicago to Mexico City,

5. See note 3 supra.

in theeventof deathand injury,so bothdeathclaimsand claims

law of the court to which the case is submitted,damages

mustnotbe confused, as it oftenis by passengers,

The leadingEnglishcase on the point,Lezwisv. GreatWest-

The propertranslation of the worddol in the originalFrench

The leading English case of Grein v. Imperial Airways,

14. See note 4 supra.

"When it is providedby treatythatcertainacts shall not be

200; Brown v. Maryland,12 Wheat. 419, 446; Alniyv.

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