Fundamentals Differences Between THE Montreal Convection AND THE Warsaw Convection IN Respect TO Liability PDF

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FUNDAMENTALS DIFFERENCES BETWEEN THE MONTREAL CONVECTION ANDTHE WARSAW CONVECTION IN RESPECT TO LIABILITY PURPOSEThe purpose of Warsaw convection was to foster the growth of the fledgling commercial aviation industry. 1 This is by limiting the damages one can be compensated for liability of the air...

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FUNDAMENTALS DIFFERENCES BETWEEN THE MONTREAL CONVECTION AND THE WARSAW CONVECTION IN RESPECT TO LIABILITY 

PURPOSE

The purpose of Warsaw convection was to foster the growth of the fledgling commercial aviation industry.1 This is by limiting the damages one can be compensated for liability of the aircraft. This statement is supported by the damages of the carrier’s liabilities as stipulated in the Warsaw convection article 22. They are as follows: 

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In the carriage of passengers the liability of the carrier for each passenger is limited to the sum of 125,000 francs. Where, in accordance with the law of the Court seized of the case, damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed 125,000 francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability. In the carriage of registered luggage and of goods, the liability of the carrier is limited to a 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 declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the actual value to the consignor at delivery. As regards objects of which the passenger takes charge him the liability of the carrier is limited to 5,000 francs per passenger. The sums mentioned above shall be deemed to refer to the French franc consisting of 65 « milligrams gold of millesimal fineness 900. These sums may be converted into any national currency in round figures.2

This is not the case in Montreal convection where by the main objective apart from unification of laws relating to aircrafts was to ensure that the passenger or claimants have been fully compensated for the liabilities of the aircraft that is the carrier has taken full responsibility of its actions. 3 This is evidenced in article 21 (1) of the convection that states the following; For damages arising from death or body injury of passenger that took place while the passenger was embarking or disembarking or the carrier shall not exceed 100 000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability. Montreal convection abolished the arbitrary limits that existed under the Warsaw Convention system and established a two-tier strict liability regime. Claims in excess of the Montreal 1 Law Corner The Warsaw And Montreal Convention: Carrier’s Liability & Passenger’s Protection August 29, 2020. https://lawcorner.in/the-warsaw-and-montreal-convention-carriers-liability-passengersprotection/ 2 The Warsaw convection 1929, article 22 3 https://www.mcgill.ca/iasl/files/iasl/aspl_636_2015-dempsey-air_carrier_liability_under_warsaw-montreal.pdf

convection liability limits may succeed unless the carrier can show that it was not guilty of negligence in causing death or injury. 4 Jurisdiction The Warsaw convection under article 28 has established four jurisdictions that a plaintiff can file a petition against the foreign carrier in a Warsaw signatory and that is5    

The carrier’s primary location of business; The carrier’s principal residence; The place of business where contract is made; The flight intended to have its final destination or the passenger’s place of destination6.

On the other hand the Montreal convection has established five jurisdictions a plaintiff can sue a carrier for damages. This is in accordance to article 33 of the convection and these are as follows:7     

The carrier’s principal residence; The carrier’s primary location of business; The place of business where contract is made; The flight intended to have its final destination or the passenger’s place of destination. The principal and permanent residence of the passenger at the time of the accident.8

In the matter of jurisdiction the differences between the Warsaw convection and Montreal convection are that the Montreal convection has included the residence state of the plaintiff that lacked in the Warsaw convection. Currency The Warsaw convection use francs as form of measure of currency for liability claims while the Montreal convection uses special drawing rights as measure currency. This is evidenced in the provisions of article 21 of the Montreal convection and article 22 of the Warsaw convection.9

4 Law Corner The Warsaw And Montreal Convention: Carrier’s Liability & Passenger’s Protection August 29, 2020. https://lawcorner.in/the-warsaw-and-montreal-convention-carriers-liability-passengersprotection/ 5 ibid 6 The Warsaw convection 1929, article 28 7 Law Corner The Warsaw And Montreal Convention: Carrier’s Liability & Passenger’s Protection August 29, 2020. https://lawcorner.in/the-warsaw-and-montreal-convention-carriers-liability-passengersprotection/ 8 The Montreal convection 1999, article 33 9 Law Corner The Warsaw And Montreal Convention: Carrier’s Liability & Passenger’s Protection August 29, 2020. https://lawcorner.in/the-warsaw-and-montreal-convention-carriers-liability-passengersprotection/...