McGILL LAW JOURNAL
Volume 14
Montreal
1968
Number 2
The Future of the Warsaw Convention
A. B. Rosevear, Q.C.*
It is common knowledge that very few of the millions of passengers
who travel on the world’s airlines ever read the conditions of the
contract of air carriage printed on the back of the front cover of
the standard form of the IATA 1 ticket. For one thing the conditions
are printed in very small type and this alone discourages most people
from even making an effort to read them. Then too, the average
traveller, who has no knowledge whatsoever of air law can not
be expected to understand the true meaning of conditions such as
number 2 (a) which reads: “Carriage hereunder is subject to the
rules and limitations relating to liability established by the Convention
unless such carriage is not ‘international carriage’ as defined in the
Convention.” 2 If questioned, the attitude of most passengers would
undoubtedly be that, as they are unable to change any of the con-
ditions, to attempt to read and understand them would be a waste
of time. Nevertheless, the importance of these conditions for the
passenger can not be underestimated, especially in the light of recent
developments in the field of limitation of liability.
For a little over a year now airline passengers have been handed
with their tickets, a small form of notice which has a heading printed
in red ink and in bold faced type reading: “Advice to international
passengers on limitation of liability.” The notice is for the purpose
of advising all
passengers on a journey to, from or with an agreed stopping place in
the Convention and special contracts of
the United States…
[that]
* Formerly General Attorney, Air Canada and later Director, Institute of
Air and Space Law, McGill University.
iIATA, International Air Transport Association.
2 Condition 2(a), of course, relates to the Warsaw Convention.
McGILL LAW JOURNAL
[Vol. 14
is
limited …
liability..,
carriage embodied in applicable tariffs provide that the liability of…
certain carriers, parties to such special contracts, for death of or personal
injury to passengers is limited …
to… $75,0003 per passenger. For such
passengers travelling by a carrier not a party to such special contracts
or on a journey not to, from or having an agreed stopping place in the
United States…
to approximately $8,290 or
$16,580.4
One may see at a glance that the form of notice above described
advises airline passengers that there are now three different limits
of liability, depending on whether the Warsaw Convention, that
Convention as amended by the Hague Protocol or a special contract
between the carriers under what is known as the Montreal Agreement
applies. Now the Warsaw Convention, which became effective in
some countries in 1933 and in Canada in 1947, was designed to
regulate “in a uniform nanner the conditions of international trans-
portation by air in respect of the.., liability of the carrier.” r The
question which arises and which this article will attempt to answer
concerns the present value and probable future of the Warsaw Con-
vention.
I.
The Warsaw Convention was drafted by that talented group of
European lawyers known as the CITEJA, (Le Comit6 International
Technique d’Experts Juridiques A6riens) which was created as a
committee of the International Private Air Law Conference. Its
initial meeting took place in Paris in 1925, and in 1929, in Warsaw,
3 American dollars. Unless otherwise indicated, all amounts are in American
currency.
the notice contained
4 The printed advice to passengers respecting limitation of liability is an
improvement over
in the IATA form of ticket. The
improvement no doubt resulted, in part, at least, from the decision in the case
of Lisi v. Alitalia-Linee Aeree Italiane, (1966), 253 F. Supp. 237, 9 Avi. 18, 120,
affirmed by Court of Appeals, (1966), 370 F. 2d 508, 9 Avi. 18, 374 (N.Y., 2nd
Cir.). The majority opinion of that court adopted the words, in part, of the
trial judge on the inadequacy of the notice to passengers respecting limitation
of liability contained in the IATA ticket. “Camouflaged
in Lilliputian print
in a thicket of conditions of contract… Indeed, the exculpatory statements
on which defendant relies are virtually invisible.” Article 3 (2) of the Convention,
which provides in part that “the absence, irregularity or loss of the passenger
ticket shall not affect the.., validity of the contract of transportation, which
shall none the less be subject to the rules of this convention” was disregarded.
The U. S. Supreme Court has granted a certiorari to bring this case before
it for decision. For a Canadian case on notice to passengers on limitation of
liability under the common law see Grand Trunk Pacific Coast S. S. Co. V.
Simpson, (1922), 63 S.C.R. 361.
5 The Preamble of the Convention.
No. 21
THE FUTURE OF THE WARSAW CONVENTION
the CITEJA completed its work on the Convention, which became
effective in 1933, when it was ratified by the required minimum of
five states.6 Like most international conventions
it was scarcely
declared in force when suggestions were made from various quarters
respecting the necessity of amending it. It has, nevertheless, been
one of the most successful private international law conventions ever
drafted.
One should always bear in mind that in 1929, international air
transport was in its infancy. Even the most confirmed optimists
of that time would not have predicted the rapid growth which the
industry has enjoyed, assisted by the grim necessities of World War II.
When therefore, the CITEJA provided in the Convention for a limi-
tation of an air carrier’s liability arising out of injuries to passengers,
including those resulting in death, of $8,290, no one was greatly
shocked.7 The air transport industry was at that time struggling
along with small revenues and a scarcity of capital. As the years
passed, it became obvious that this comparatively low limitation of
liability must be increased and that other amendments should be
made to the Convention. World War II intervened, however, and
all work on the revision of the Convention was suspended. After
the war, the Legal Committee of the International Civil Aviation
(ICAO) assumed the work formerly performed by
Organization
CITEJA. In 1947 the revision of the Warsaw Convention was placed
high on its work program. It was not, however, until 1955, after
the Legal Committee had completed its work on a draft protocol
amending the Convention, that ICAO called a diplomatic conference
at the Hague to deal with the draft. There were those who believed
that the proper way to amend the Convention was to make an
entirely new pact containing a provision that when a certain number
of states had ratified it, the new Convention would be substituted
for the existing one. Unanimity on the nature and scope of the
amendments which should be made or even on the necessity for
amending the Convention at all did not, however, exist and it was
decided, therefore, to amend it by way of a protocol; the Convention
itself would continue in those states which did not wish to accept
the Protocol. This arrangement had the effect of destroying the
uniformity of the Warsaw Convention throughout the world.
0 Art. 37(2). The Warsaw Convention is in force in Canada by virtue of
the Carriage by Air Act, 3 Geo. VI, S.C. 1939, c. 12; R.S.C. 1952, c. 45 and
by virtue of Proclamations of the Governor-in-Council dated June 13, 1947,
and January 30, 1948, declaring the said act in force on July 1, 1947, and
declaring the Convention in force on September 8, 1947, respectively.
7Art. 22(1).
McGILL LAW JOURNAL
[Vol. 14
The United States delegation at the Hague Conference left no
doubt in the minds of the other participants that difficulty could be
expected in obtaining the approval of the United States government
to the new limitation of liability of $16,580, as provided in the
Protocol.8 To assist in obtaining this approval the Conference included
a special provision respecting legal fees and costs 9 –
a complicated
problem because of differences in the assessment thereof between
one country and another. In all jurisdictions in Canada costs arising
between the parties are distinguished from solicitor and client costs.
Party and party costs are taxed by the courts against the unsuccessful
litigant in accordance with the relevant tariffs in force. Solicitor and
client fees, on the other hand, are subject to the inherent jurisdiction
of the common law courts to summon solicitors before them to show
cause why their fees should not be reduced. In addition to this
restraint, the various law societies have the right and do make tariffs
of fees which are mandatory. In a number of jurisdictions in the
United States, contingency fees are allowed. This is a device whereby
a client agrees to pay to his attorney a certain percentage of the
amount of damages recovered in litigation or through a settlement.
These fees may be as high as fifty percent of the amount of the
judgment or settlement but usually they are in the area of one third
thereof. They are subject to regulation by the law societies and the
courts concerned, and in some American states they are governed
by rules of court.10
The statement has been made that the entire movement for
denunciation of the Warsaw Convention by the United States came
originally from the National Association of Claimants Compensation
Attorneys, now called the American Trial Lawyers Association
(A.T.L.A.).11 Whether this is a fact or not may be open to argument,
but there is no doubt that A.T.L.A. conducted a strong lobby in
Washington against the ratification of the Hague Protocol and for
the denunciation of the Warsaw Convention. They were, as a result,
undoubtedly influential in bringing about the Senate’s refusal to
SArt. XI, amending art.’ 22(1) of the Convention. The Hague Protocol is
in force in Canada by virtue of An Act to Amend the Carriage by Air Act,
12 Eliz. II, S.C. 1963, c. 33 and by a Proclamation of the Governor-in-Council
issued pursuant thereto, declaring
for
Canada as July 18, 1964.
the effective date of
the Protocol
9 bid., adding art. 22(4) to the Convention.
i0 See Lowenfeld and Mendelsohn, The United States and the Warsaw
Convention, (1966-67), 80 Harv. L. Rev. 497 at pp. 562 et seq.
“Kean, A.W.G., in a speech delivered to a meeting of the Air Law Group of
The Royal Aeronautical Society, printed in (1967), 71 Journal of the R.A.S.,
501 at p. 505, para. 43.
No. 2]
THE FUTURE OF THE WARSAW CONVENTION
165
consent to the Hague Protocol and its advice to the government to
denounce the Convention. A.T.L.A. used the argument that the right
of Americans to recover full damages for personal injuries should
not be infringed. They referred to the “narrow philosophical horizons
of Warsaw.” 12 A fair comment would be that A.T.L.A. is a group
of special pleaders who have a financial interest in the denunciation
of the Convention.
It is not my intention to give an account in detail of the events
which followed the notice of denunciation of the Warsaw Convention
sent by the State Department of the United States Government to
the Government of Poland, as the depository thereof.’ 3 Since United
States air carriers transport a large percentage of the world’s
air traffic and all the important carriers in the world have air
routes to and from the United States, the denunciation by the United
States, if it had become effective, would have dealt a severe blow
to the unification of private international air law. Both ICAO and
IATA exerted every effort to reach an agreement with the United
States Government concerning acceptable limits of liability. An
agreement between the air carriers which has become known as the
Montreal Agreement was the result. When it was completed the
Department of State of the United States Government notified the
Polish Government that the United States wished to withdraw its
notice of denunciation. The State Department made it very clear
that the step it had taken was temporary, pending the negotiation
of an international agreement between the governments concerned,
under which they would agree to a substantial increase in the
limitation of liability for damages arising out of injuries to pas-
sengers.
The legality of the Montreal Agreement depends upon the inter-
pretation of the last sentence of article 22(1) of the Convention
repeated in the Hague Protocol, which reads: “Nevertheless, by
special contract, the carrier and the passenger may agree to a higher
limit of liability.” By giving notice of the special contract to each air
passenger with his ticket it must be assumed that, in accepting
delivery of the ticket and in subsequently boarding an aircraft of
12President’s Column, “The Power and the Right”,
(1966),
9 A.T.L.A.
Newsletter 145.
13 For an excellent account of the position of the United States Government
and the steps that were taken to bring about the Montreal Agreement, see
Lowenfeld and Mendelsohn, loc. cit. For the text of the press release issued
by the U. S. Department of State respecting the notice of denunciation of the
Warsaw Convention dated Nov. 15, 1965, see
(1966),
60 A.J.I.L. 395; for
withdrawal of the notice, see (1966), 60 A.J.I.L. 826.
McGILL LAW JOURNAL
[Vol. 14
an airline for a journey, the passenger has agreed to the terms of
the contract of carriage. No test of the soundness of this assumption
seems to have taken place in the courts, but, at least, under the
common law, it has become a question of fact, and not of law, as to
whether or not a certain notice to a passenger of special conditions
in the contract of carriage limiting a carrier’s liability is sufficient
to make them binding on a passenger. 14 In the present writer’s
opinion, the notice required by the terms of the Montreal Agreement
is sufficient and the fixing of a higher limit of liability is a compliance
with article 22(1).1i In addition the carrier agrees to waive the
defence permitted by the Convention to the effect that, if the carrier
“proves that he and his agents have taken all necessary measures
to avoid the damage or that it was impossible for him or them to
take such measures,” he is not liable to a plaintiff. This defence
would probably apply in a case of sabotage affecting the airworthiness
of an aircraft or destroying it in flight.16
There is, however, one other defence available to the carrier,
which is not affected by the Montreal Agreement. If the carrier is
able to prove that “the damage was caused by or contributed to by
the negligence of the injured person the Court may, in accordance
with the provisions of its own law, exonerate the carrier wholly or
partly from his liability.” 17
Furthermore, the Montreal Agreement does not deprive the
passenger of his right to break the limitation on the carrier’s liability,
by proving, either that the carrier failed to deliver a ticket to him
(and in addition, under the Hague Protocol, failed to notify him
of the Convention applying to his contract of carriage and that it
contains a limitation of liability) or that the carrier was guilty of
wilful misconduct.13 The Convention, of course, forbids the making
of a contract of carriage less favourable to the passenger.’ 9
II.
In order to illustrate the absence of uniformity, on a world basis,
respecting the limitation on an air carrier’s liability for injuries to
14 See Shawcross and Beaumont, Air Law, 2nd ed., (London, 1951), p. 329,
note (d).
15 In Canada, the conditions would also have a statutory sanction because
they are in the applicable tariffs which are at least tacitly sanctioned by
Canadian Transport Commission.
16 Art. 20 (1).
17 Art. 21.
1s Convention, Art; 3(2), Protocol, Art. III; Convention, Art. 25, Protocol,
Art. XIII.
19 Art. 23.
No. 2]
THE FUTURE OF THE WARSAW CONVENTION
167
passengers, 20 let us examine the respective rights of four hypothetical
passengers travelling on an Air Canada flight from Montreal to
Vancouver.
Passenger A holds a ticket, Montreal to Vancouver: The air
carrier’s liability to him is not limited as the provisions of the
Warsaw Convention do not cover domestic carriage 21 and liability
in this case is subject to the defences allowed by law in Canada.
Passenger B holds a ticket Vienna to Vancouver via Montreal:
The limitation of $8,290 applies to him because Austria is a party
to the Warsaw Convention but not to the Hague Protocol. Liability
is presumed but may be rebutted.
Passenger C holds a ticket London, England, to Vancouver via
Montreal. The limitation in the Hague Protocol of $16,600 applies
to him because both the United Kingdom and Canada are parties
thereto. Liability is presumed but may be rebutted.
Passenger D holds a ticket London – New York – Montreal –
Vancouver. The provisions of the Montreal Agreement apply to him
thus making the limitation either $75,000, including legal fees and
costs or $58,000, excluding legal fees and costs, depending upon the
rules respecting costs in the jurisdiction where he or his dependents
20 While it is true that the Warsaw Convention applies to other matters such
as liability for the loss of or damage to baggage and freight, a contracting
party who is dissatisfied with the provisions respecting passenger injuries
cannot denounce them and be a party to the remainder of the Convention. A
party must ratify, adhere to or denounce the whole Convention. Now the
present crisis respecting the continuance of the Convention is entirely concerning
its provisions relating to the limitation of the carrier’s liability for passenger
injuries. This does not mean that all other provisions of the Convention are
working smoothly and do not require amendment. See, for example, Sand,
The International Unification of Air Law, (1965), 30 Law and Contemporary
Problems 400 where the author discusses basic problems, definitions of member-
ship in conventions, transformation of treaties into national laws, interpretation
by national courts and amendments; Pourcelet, The International Element in
Air Transport, (1967), 33 J. Air L. and Com. 75 at p. 83 where the author
discusses lack of judicial unification; Pourcelet, L’Accord du 4 mai, 1966 sur
les limites de responsabilitg dans le transport agrien international de passagers,
(1966), 29 Rev. Gen. de l’Air et de L’Espace 247 at p. 258 where the author
states: “Le syst~me varsovien, s’il m6rite encore ce nom, puisque s’y greffent
[a Convention de Guadalajara, le Protocole de la Haye et l’accord nouveau –
ressemble h un arbre aux branches folles.” In comparison to the dissatisfaction
of the United States Government over the matter of damages for injuries to
passengers, however, the other defects in the Convention are considered of
secondary importance. Time and space will not permit a discussion of these
matters.
21 Compare, however, the situation in the United Kingdom where the Convention
has been extended to cover domestic carriage.
McGILL LAW JOURNAL
[Vol. 14
bring suit. The liability of the carrier is absolute except for the
defence of the contributory negligence of the passenger. 22
In all of the above cases the limitation of liability may be broken
if the passenger or his dependents are able to prove wilful misconduct,
in the case of the Convention, 23 and intentional or reckless conduct
either intending to do harm or knowing that damage would result
therefrom, in the case of the Hague Protocol.24
From the time of the notice of denunciation of the Convention,
to which reference has been made above, ICAO took an active part
in the arrangements for the temporary solution to the problem under
the terms of the Montreal Agreement. Following the acceptance
of that Agreement by IATA and other carriers and by the United
States Government, the ICAO Council in June, 1966, appointed a
panel of experts to study the problem of compensation for personal
injuries to air passengers and to report its findings and recom-
mendations to the Council. 25
The panel of experts has had two sessions and has issued a
report of their deliberations for each session. Unfortunately these
reports were circulated by ICAO on a restricted basis which means
that they are semi-confidential. There has, however, been such a
wide discussion of the limits of liability for passenger injuries
contained in the panel’s second report that I believe one would not
be violating the restricted nature of the reports by discussing them
briefly.
The panel has placed before ICAO two solutions with a recom-
mendation that the second one should be adopted. The first solution
recommends a retention of the rules of the Warsaw Convention as
amended at the Hague with two modifications:
1) the carrier will not be deprived of limitation of liability because
of failure to deliver a ticket or notice; and
2) the limits should be in two levels, as follows –
basic limit $75,000 ($100,000 including costs)
lower limit $37,000 ($50,000 including costs)
The second solution recommends strict liability. Under this latter
proposal the carrier would be liable for death or injury to a passenger
caused by an aircraft accident (Article 17 of the Convention),
irrespective of how the accident was caused, with the exception of
221t should be pointed out that the Montreal Agreement does not apply to an
airline which is not a party to it and the notice to passengers so states.
23 Art. 25.
24 Art. XIII.
25 58th Session, 10th Meeting; Doe. 8596 –
10e/964-10.
No. 2]
THE FUTURE OF THE WARSAW CONVENTION
169
war or comparable situations. The carrier would retain the protection
of article 21 of the Convention relating to contributory negligence
(the panel was of the opinion that the Article applies also to cases
of deliberate acts of the passenger or claimant). Where the damage
resulted from the act or omission of a third party, the carrier’s right
of recourse against him should not be prejudiced and the new protocol
or convention should contain a provision to that effect. The panel
supported the view that the carrier should not lose his limitation
only because he failed to deliver a ticket or to give notice to a
passenger. This would mean a revision of article 3(2) of the Con-
vention and of the Hague amendment thereto. It also recommended
that, if the carrier is found guilty of wilful misconduct (article 25)
or of intentional acts likely to cause damage or reckless conduct
(article 25 as amended by the Protocol), the limits of liability should
not apply. The limits which the panel decided upon were as follows:
1) basic limit of $58,000 ($75,000
including costs)
2) lower limit of $33,000 ($43,000 including costs).
The second solution, it is submitted, is to be preferred over the
first one. The Montreal Agreement has demonstrated that the
carriers themselves accept the principle of strict liability. In conceding
this, the carriers are not in fact making much of a sacrifice. Under
the common law, the courts are likely to apply the rule of evidence
known as res ipsa loquitur, which makes it insufficient for the
defendant to show that there were several hypothetical causes of an
accident consistent with the absence of negligence. He must go
further and either show that there was no negligence or give an
explanation of the cause of the accident which did not connote
negligence. 26 In other words, the onus of proof is shifted to the
defendant to such an extent that he must explain how the accident
happened without negligence on his part –
a very heavy onus
indeed. Under the civil law, generally, a contract of carriage implies
that the carrier will transport the passenger from A to B safely and
soundly. His obligation is one of result (obligation de r~sultat) and
in order to exculpate himself, he must establish that the accident
was caused by vis major or some such cause entirely beyond his
control.27 This also constitutes a heavy burden of proof.
26 Laidlaw, J. A., in Zerka V. Lau Goma Airways Ltd., [1960] O.W.N. 166
(C.A.).
27 In Quebec, of course, carrier suits are taken under articles 1053, 1054 and
1056 C. C. and not under the contract of carriage and article 1024 C. C. In
this connection see Cr~peau, Le contenu obligationnel dun contrat, (1965),
43 Can. Bar. Rev. 1, at p. 27, where the author states: “L’article 1024 du
Code civil dcr~te enfin que l’on doit ins6rer dans le cercle contractuel les
McGILL LAW JOURNAL
[Vol. 14
Strict liability of the carriers, with a limit on that liability for
personal injuries to air passengers would appear to be a better
solution to the problem than to retain the principle of presumption
of fault contained in the existing Warsaw Convention. Under a
regime of strict liability the carriers and their insurers would tend
to settle claims quickly. The limit, however, might well be set at,
say $100,000 inclusive of legal fees and costs and $75,000 exclusive
of them. At the same time, article 25 of the Convention relating
to wilful misconduct or intentional and reckless acts, as the case
may be, should be deleted, thus preventing all attempts to break
the much higher limit. The right of the carrier to allege the negli-
gence of a passenger should be retained, as this would not affect the
claims of other passengers or their dependents when the same acci-
dent caused damage to them. The obligation on the carrier to give
adequate notice to passengers of the limits of liability in their con-
tracts of carriage with the precise wording of the notice set out in
the Convention should remain. In addition, if the carrier is required
to set out these notices of limits in each passenger ticket, then failure
to deliver a ticket would, of course, constitute failure to give the
passenger notice. The penalty should, in this situation, be a removal
of the limits of liability.
It is highly important that there should be only one limit of
liability. To the objection, which no doubt will be made by some
countries, that the suggested limit is too high, it may be answered
that the courts of each country should assess damages according
to their several national standards. If to obtain wide acceptance
of the Convention containing the proposed limitation, it is necessary
to provide for a higher and a lower limit, then the lower limit
should only be for a trial period and then become inoperative. This
would be a step towards unification.
That part of article 19 of the Convention which provides that
the carrier is liable for the delay of a passenger should be eliminated
entirely. In any event, the damages for delay should be limited to
a refund of the price of the passenger’s ticket and payment of his
actual out-of-pocket expenses, if any, and should not be awarded
unless it is proved that the delay was caused by the carrier’s own
fault or negligence. It is entirely unreasonable to apply the limits
obligations implicites qui d6coulent de la loi. Cette disposition s’applique, A
notre avis, aux prescriptions l~gislatives tant provinciales que f6drales. C’est
ainsi, par exemple, que la 16gislation fdd6rale relative au transport a6rien
international s’incorpore au contrat de transport a6rien international au mme
titre que la 16gislation provinciale touchant les voituriers.” See also Prof.
Cr6peau’s remarks respecting air transport and particularly p. 13, note 47.
No. 2]
THE FUTURE OF THE WARSAW CONVENTION
171
of liability for the carriage of passengers in the Convention, the
Protocol or the Montreal Agreement to the quantum of damages
which a passenger is entitled to claim for delay under article 19.
Where that article refers to damages for delay in the carriage of
goods and luggage, however, the limitations on the liability of the
carrier, set out in article 22(2), are not unreasonable.2 8
It should be pointed out in passing that questions of law have
arisen respecting the application of the rules contained in the
Warsaw Convention to the hire, charter and interchange of aircraft.
Such arrangements introduce a third party into the picture, namely,
the contracting carrier who is not the actual carrier of passengers,
luggage and freight. The Legal Committee of ICAO dealt with this
problem by drafting another international convention which was
opened for signature following a diplomatic conference called by
ICAO at Guadalajara, Mexico in 1961. This Convention is grafted
on to the Warsaw Convention as amended by the Hague Protocol.
It is bound to raise difficult questions of interpretation.29
From the foregoing it seems evident that the whole matter of the
liability of air carriers should now be submitted to a body consisting
of the jurists of the world who are experts in air law for study and
for the drafting of an entirely new and consolidated convention. This
will, however, no doubt take about ten years to complete, unless it
it done as an emergency project. In the meantime it
is necessary
to deal with the limit of air carriers for injuries to passengers in
order to bring about uniformity throughout the world and to prevent
the denunciation of the Warsaw Convention by the United States
and possibly by other countries as well. A body of jurists independent
of the Legal Committee of ICAO is suggested in order to avoid, as
far as possible, political considerations affecting the initial stages
at least of the work. This is not intended as a criticism of the Legal
Committee, but it is readily realized, I believe, that in such a body
international politics cannot be entirely eliminated or even discounted.
28 For a discussion of the subject of delay under the Convention and the
Protocol, see Cheng, The law of “International” and “Non-international” Carriage
by Air, [1964] Law Soc. Gaz. 37 at p. 115.
29 See Pourcelet, Transporteur contractuel et transporteur de fait dans la
Convention de Guadalajara, (1963), 9 McGill L.J. 317 and especially at pp.
335-336 where the author states: “N’efit-il pas 6t6 pr~f6rable d’int~grer dans
]a Convention de Varsovie quelques dispositions relatives aux problhmes de
l’affr~tement a6rien, ce qui aurait eu pour effet imm6diat d’6viter des conflits
quant aux conditions d’application de la Convention de Varsovie et de Guada-
lajara.”
McGILL LAW JOURNAL
[Vol. 14
III.
Generally speaking, in North America, public policy has not
favoured limited liability in the carriage of passengers. There are
a few exceptions to this statement but. the general policy of govern-
ments is well expressed in section 353 of the Canadian Railway Act.30
That section prohibits the inclusion in any contract of carriage of
conditions impairing, restricting or limiting the liability of railway
companies without the approval of the Canadian Transport Com-
mission. The section further provides that the Commission may, in
any case, determine the extent of any such impairment, restriction
or limitation. Railway companies accept full responsibility for injuries
to passengers. The same rule also applies to highway transport
companies. Although the Canadian Aeronautics Act 31 does not have
a section corresponding to section 353 of the Canadian Railway Act,
the Canadian Transport Commission provides by regulation that air
transport operators must not limit their liability for injuries to
passengers below $20,000 (Can.) per passenger seat. As such a
limitation, under the common law, would not be binding, in any
event, upon the dependents of a passenger killed in an aircraft
accident, the airlines of Canada accept full liability in the domestic
field. What justification is there, therefore, for limitation of liability
for injuries to passengers in the international field by adherence to
the Warsaw Convention?
To answer this, it is relevant to set down the principal advantages
which accrue to a plaintiff in Canada seeking relief in damages
from an international air carrier under the Warsaw Convention. The
Convention contains:
First, a presumption of the liability of the carrier;
Secondly, a protection from lower limits of liability than those set
out in the Convention; and
Thirdly, the provision of four fora in which an action against an
international carrier may be commenced. These fora are
at the option of the plaintiff, in the territory of one of the High Con-
tracting parties, either before the Court having jurisdiction where the
carrier is ordinarily resident, or has his principal place of business, or
has an establishment by which the contract has been made or before
the Court having jurisdiction at the place of destination.3 2
30 R.S.C. 1952, c. 234. But for a limit in fatal accident cases of $15,000,
see Mass. Gen. Laws Ann. c. 229 No. 2 (1955) as in effect Sept. 1958. This
limit has been raised and now stands at $50,000.
(Mass. Gen. Laws Ann. c.
229 No. 2 (supp. 1965)).
31 R.S.C. 1952, c. 2.
32 Art. 28.
No. 2]
THE FUTURE OF THE WARSAW CONVENTION
173
A plaintiff, therefore, escapes from the uncertainty which would
otherwise exist as to the proper place in which to found an action.
In addition to the above three advantages there is, as well,
uniformity in the choice of law and the right of action and remedies
for wrongful death. Article 24 of the Convention leaves open the
questions as to who are the persons who have the right to bring
suit and what are their respective rights. The Carriage by Air Act
(Canada) settles these questions by providing that the provisions
of the Convention which relate to the rights and liabilities of carriers,
passengers, consignors, consignees and other persons have the force
of law in Canada in relation to any carriage by air to which the
Convention applies, irrespective of the nationality of the aircraft
performing the service.33 The Act also provides that article 17 of
the Convention, the liability of the carrier, applies to cases involving
the death of a passenger in substitution for any law in force in
Canada and that the Second Schedule to the Act “shall have effect
with respect to the manner in which it may be enforced.” 34 It
follows from the foregoing that when an action is commenced in
Canada, in one of the fora named in the Convention, the plaintiff
is not faced with the problem of the law to be applied in determining
the cause of action, who are the persons having a right to bring
suit and what are their respective rights. The Carriage by Air Act,
the law of the forum, applies.35
Quite apart, therefore, from the importance of finding a solution
to the problem of fixing a limit to the liability of international air
carriers which would receive world wide acceptance, it will, I believe,
from a careful reading of the foregoing, be conceded that the Warsaw
Convention contains provisions helpful to those seeking compensation
from international air carriers and that accordingly the Convention
should be continued.
33 Carriage by Air Act, R.S.C. 1952, c. 45., s. 2 (1).
34Ibid., s. 2(4).
35 For a discussion of the difficulties encountered in the United States, see
G. Nathan Calkins, Jr., The Cause of Action Under the Warsaw Convention,
(1959), 26 J. Air L. & Com. 217, 323; for a discussion of the law to be applied,
see Lowenfeld and Mendelsohn, loc. cit., at pp. 552 et seq.
