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Published online by Cambridge University Press: 04 July 2016
The Legal Committee of the International Civil Aviation Organization met recently in Montreal and decided to recommend a modification of the Montreal Interim Agreement to provide for a novel rule of liability. The rule would make the carrier absolutely liable, regardless of whether the carrier was at fault. The only exception to the rule would be where the passenger or person claiming damages had himself caused or contributed to the accident. The limit of the air carrier's liability would be raised to $100 000.
I will attempt to outline not only the current state of the law of aviation, but to critically dissect those provisions of the proposed treaty which I believe to be incompatible with fundamental concepts of justice and equality, and violative of constitutional safeguards of the Constitution of the United States. Recognisably, some of these comments may be controversial, but it is hoped that they will provide luminosity concerning a complex subject and reduce polarisation of views.
* Lowenfeld and Mendelsohn. The United States and the Warsaw Convention. Harvard Law Review, Vol. 80, No. 3, p. 554, January 1967
* In a recent opinion, Burdell v. Canadian Pacific Airlines, 10 Avi. 15,151 (1968), the court ruled that the Warsaw Convention Treaty damage and venue provisions were unconstitutional. To quote Arthur John Keeffe, Catholic University of America, Columnist, The American Bar Association Journal, concerning this decision
“It is a dreadful thing to have to say, but, in truth, decisions such as Kilberg (9 N.Y. 2d 34), Pea'son (309 F. 2d 553), Long (16 N.Y. 2d 337), and Scott (399 F. 2d 14), lack the simplicity and honesty of Judge Bua's ruling in Burdell. Here at last is a Judge who faces up to the real problem, the constitutionali'y of outrageous, discriminatory, out of date, rotten laws.” (Emphasis supplied.)