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Compensation for Airline Passenger Death and Injury. The Future of the Warsaw Convention

Published online by Cambridge University Press:  04 July 2016

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Extract

In May 1966 under threat of USA withdrawal from the 1929 Warsaw Convention, over 30 of the world's leading international airlines agreed to increase the limit of their passenger legal liability from US $8300 (Warsaw) or US $16 600 (Hague) to US $75 000 (inclusive of legal costs) or $58 000 (plus costs) for passengers travelling to, from or via the USA. Today the number of participating airlines is over 90 and there are individual variations, eg (i) BEA has extended the new limits to all its Warsaw or Hague passengers; (ii) Lufthansa and other airlines have adopted the equivalent of a $58 000 limit for domestic passengers within Germany.

In the United Kingdom (including associated overseas territories) on 1st June 1967 the Hague Protocol came into force for the first time and the limit of liability for non-Convention (ie mainly domestic) carriage was raised to the equivalent of approximately £21 000 ($58 000).

The end of the first year of the new limits and the beginning of the new UK limits were marked by the Air Law Group of the Royal Aeronautical Society by an international discussion held at the Society on 1st June 1967. The Chair was taken by Sir William Hildred, CB, OBE, MA, and the principal speakers were: Dr. B. Cheng, University College, London; L. S. Kreindler, Trial Lawyer, New York; A. Goodfellow, Solicitor, London; and M. J. Lester, Secretary and Solicitor, BEA.

The aims of the Discussion were to:–(a) Review the present position nationally and internationally; (b) Discuss possible future developments from the viewpoint both of airlines and their passengers.

Type
Research Article
Information
The Aeronautical Journal , Volume 71 , Issue 679 , July 1967 , pp. 501 - 510
Copyright
Copyright © Royal Aeronautical Society 1967

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References

1 See “The Warsaw Convention and the Washington Compromise” by A. F. Lowenfeld. Journal of the Royal Aeronautical Society, December 1966 [this includes the text of the Montreal Agreement], and “The United States and the Warsaw Convention” by A. F. Lowenfeld and A. I. Mendelsohn 80 Harvard Law Review 3, January 1967.

2 For example: in the UK by operation of law in the Carriage by Air Acts (Application of Provisions) Order 1967; in West Germany by special conditions of carriage for domestic carriage— adopted by Lufthansa, Bavaria, Condor, Lufttransportunternehmen, Sudflug International; Alitalia, KLM, Pan American, Sabena, SAS and Swissair.

3 See “Limitation of Liability and Passenger's Accident Compensation under the Warsaw Convention” by P. H. Sand 11 American Journal of Comparative Law 21; and Lowenfeld and Mendelsohn op. cit, pp 535-546.

4 See Lowenfeld and Mendelsohn op. cit, pp 552-558.

5 See Lowenfeld and Mendelsohn op. cit, pp 558-561.

6 See Mr. Goodfellow's suggestion 12 (iv) (page 501).

7 Lisi v Alitalia 370 F.2d 508, [1967] 1 Lloyd's Rep. 140.

8 In order to avoid any conflicting treaty obligations: see “The Law of ‘International’ and ‘Non-International’ carriage by Air” by B. Cheng 60 Law Society's Gazette 7 and 11 (July and November 1963) pp 450-453, 750-753.

9 The Carriage by Air Acts (Application of Provisions) Order 1967.

10 The Guadalajara Convention is incorporated into English law by the Carriage by Air (Supplementary Provisions) Act 1962.

11 Moukataff v BOAC [1967] 1 Lloyd's Rep. 396.

12 See note 9 above; plus The Carriage by Air Acts (Application of Provisions) (Overseas Territories) Order 1967, and similar Orders for Guernsey, Jersey and the Isle of Man.

13 A return ticket would be Warsaw and Hague and could involve the UK in a conflict of treaty obligations to Finland if, for example, a Finnish carrier was sued for the Hague limits in the UK—see Cheng op. cit.

14 Article 20(1) “The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures”.

15 See Appendix B pp 506-8.

16 The USA is reported to be attempting this in relation to Aeroflot. See New York Times, 17th May 1967.

17 Payment of lawyer's fees contingent upon the lawyer's success in securing compensation as a result of either an outof-court settlement or a court award of damages. Such an arrangement is unlawful in England and many other countries.

18 One carrier has already attempted this contractually (with the consent of the CAB) by adding the following words after the first sentence of paragraph 1(2) of the Montreal Agreement: “(3) To the extent of any payments in accordance with the foregoing, the carrier succeeds to any rights of recovery of passenger or payee in relation to third parties” [Saturn Airways].

19 “Nothing in this Convention shall prejudice the question whether a person liable for damage in accordance with its provisions has a right of recourse against any other person” Article 10, 1952 Rome Convention.

20 Mertens v The Flying Tiger Line Inc. 341 F.2d 851, cert, denied 382 US 816; 1965 USA v R 1 & 978.

21 Article 4(b) of the Carriage by Air Acts (Application of Provisions) Order 1967.

22 Mr. Lester writes: “One of the reasons carriers are reluctant to extend the Montreal Agreement is that they feel that the insurance costs they may incur as a result will be excessive. This will, of course, be true of carriers who insist on insuring their passenger liability 100%. I myself am sure that a more enlightened approach to the problem of meeting the extended passenger liability would succeed in reducing this problem to manageable proportions, and indeed this has already been done by BEA. It does, of course, involve the carrier's accepting a proportion of the liability for its own account. It also involves the carrier in setting aside an insurance reserve out of profits earned to meet any contingent uninsured liability. By these means, or something similar, it is possible for a carrier to limit the expenditure on passenger liability insurance to figures not far different from those currently being paid”.