By Ruwantissa Abeyratne
The overriding aim of private international air law has been to unify laws relating to the carriage of persons and cargo.
This unification started with the Warsaw Convention of 1929 and culminated in the Montreal Convention of 1999, which finally replaced the Warsaw Convention. These legal instruments were collectively called “the Warsaw Regime,” meaning that the parent treaty was the Warsaw Convention. Between 1955 and 2000, an interesting turn of events took place in the liability regime. If, for instance, a shipment was lost by the carrier – which flew it from country A to country B – the courts had to decide which treaty of the Warsaw Regime to apply. If country A had ratified the Warsaw Convention, and country B had instead ratified the Hague Protocol, courts applied the principles of the lower common denominator. In this case, it was the Warsaw Convention.
In 2000, this changed when the U.S. Court of Appeals held that if there was no commonality between the two countries involved in carrying cargo, no legal instrument applied and the applicable law would be as existing in the domestic jurisdiction concerned be it common law or civil law. This situation led to considerable chaos, which is counterintuitive to the whole purpose of unification of laws.
So now with an abundance of caution, the U.S. has ratified the Hague Protocol, the Montreal Protocol No. 4 and the Montreal Convention, just to make sure that the U.S. will fall into at least one instrument.
To make confusion worse, the basic principle applicable to treaties is that a country can adhere to an amendment to a convention only if the parent convention or treaty allowed such partial adherence. There is no such mention in the Warsaw Convention. Therefore, the U.S. is deemed not to have ratified any instrument in this context. Although the Court of Appeals did not focus on this fact, the ultimate conclusion of the court was valid, in that both parties had not ratified the same instrument and therefore it was left to the common law applicable to the U.S. to take over.
The Montreal Convention of 1999, which has entered into force, replaced the Warsaw Convention and its several protocols. At least we now have a clean slate, and countries should take the opportunity they have to unify the laws applicable to carrying people and cargo by air by signing onto the Montreal Convention. This would eliminate all doubt, particularly for the courts.
In its World Air Cargo Forecast for 2012–2013, Boeing suggests that over the next 20 years, world air cargo traffic will grow 5.2 percent per year and that airfreight, including express traffic, will average 5.3 percent annual growth. Airmail traffic will grow much slower, averaging only 0.9 percent annual growth through 2031.
By any standards, these statistics instil confidence in the future of air cargo carriage. The least the industry could ask for is a clear system of laws that would help both the carrier and the shipper.
Ruwantissa Abeyratne has worked in aviation management for 30 years and was a senior professional at the International Civil Aviation Organization for 23 years.