Liability of The Air Carrier

Liability of The Air Carrier International Law, European Law and in Turkish Law

PREFACE International Air Law assumed great importance since the sudden increase in the International Air Transport during the twentieth century. The issue of diverging interpretations of a uniform text is not new, but it has assumed a growing importance in this century. Today’s air transport industry is a strong global sector with a vastly improved and steaİngilizcey improving safety record. Air transport plays an important role in economic development. In the 21 st century travel and tourism will be the most important factor of the economies of the world. The air transport is also bound to undergo many changes, so also the rules governing the international air transport including the amount of compensation and airfares in the real term. Especially, the air cargo industry is fascinating. Each day new challenges arise, legal problems, political, commercial, operational issues and problems must be solved just as quickly. Cargo claims are commonplace in the air cargo industry, and solving them involves dealing with the customer’s pressure for a quick and favourable solution, the insurer’s slow and rather formalistic process, and the airline’s pressure to clear all cargo claims as quickly as possible. Therefore, rather than analyzing legal issues, a person in charge of cargo claims has to find a compromise acceptable to all the parties involved . Air cargo is currently a $ 40 billion industry that is expected to develop rapidly during the next 20 years. Two main factors stimulate air cargo growth, market development and technical development. A legal analysis of international air cargo claims must start with an examination of the applicable international regime. Probably the most widely accepted instrument concerning the unification of private law is the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air of 1929, which governs international carriage by air for passengers, baggage, and goods. For 70 years the 1929 Warsaw Convention, which came into force in 1933, governed supreme, in its numerous permutations, virtually all international carriage of passengers, baggage and cargo throughout the world. The Warsaw Convention 1929 prescribes the rights and responsibilities of the International Air Carriers on one hand and passengers, consigners and consignees of goods on the other. This Convention has undergone a series of amendments or attempted amendments, assembling a system of law known as the -Warsaw System’. This Convention has been amended by a Protocol adopted at the Hague in 1955, by another Protocol adopted at Guatemala City 1971, and by four Protocols adopted at Montreal 1975. It has also been supplemented by the Guadalajara Convention inn 1961. The expression -Warsaw system’ refers to that ensemble of international treaties, as well as to the so called -Montreal Agreement’ concluded in 1966 whereby the major air carriers who signed it agreed to modify their Conditions of Carriage for the benefit of air travellers whose contract of transportation includes a place in the United States of America as a point of origin, point of destination, or agreed stopping place. The Convention helps to eliminate or reduce various problems arising from conflict of laws from varying rules on documents of carriage and on liability . In some respects, the Convention represented a progressive development in private law and a better balance of interests between the airlines and passengers, consignees and consignors than was common for other modes of transport . Its quasi-universal acceptance testifies to its success as an instrument of international uniform law, success which is in turn enhanced by its quasi-universality . The object of this study is the uniform law governing international carriage by air during international transportation of cargo which is primarily regulated by the -Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw Convention in 1929’, its amendments and in European Law and to provide a comparative study with the TCAA. During the fifty years since its signing at Warsaw, when commercial aviation was still in its infancy, the -Convention for the Unification of Certain Rules Relating to International Carriage by Air’, known as the Warsaw Convention, has gained acceptance throughout the world. It has become Magna Charta of the liability of the international air carrier, which, in many countries, applies even to domestic air carriage . Among these instruments, the Montreal Protocol No. 4 deals exclusively with cargo issues. It is likely that the Protocol will gain wider acceptance since it does not contain any controversial provisions and provides competitive advantages to air carriers. It took nearly half a century since the Warsaw Convention, as amended by the Hague Protocol in 1955, came into effect to create a new, modern, and most of all unified instrument for liability in international carriage by air. Given the differences in standards of living and in legal traditions around the world, it is impossible to unify the liability system in carriage by air with respect to every detail, but what is essential in order to a least provide the global air transportation industry and its customers with a common liability standard has, however, been established with the Montreal Convention 1999 . The International Civil Aviation Organization (ICAO) took initiative with the help of International Air Transport Association (IATA), to replace the Warsaw System into a new Montreal Convention 1999, for the Unification of Certain Rules for International Carriage by Air. The Montreal Convention 1999 is designed to meet the challenges of 21st century. The Montreal Convention primarily deals with the issues of limitation of liability and proof of exoneration. When formulating the Montreal Convention, its authors were able to fall back on the air transportation industry’s more than 60 years of experience with the Warsaw Convention. Central criteria such as definition of -international carriage by air’ or the liability criterion of an -accident’ as well as other positive elements have been retained. This promotes legal certainty, for countless international decisions and papers, addressing many specific issues of liability in carriage by air will thus also remain relevant in the future. Furthermore, may negative aspects of the Warsaw Convention have been eliminated. Over the course of its history, amendments and additional protocols as well as interim agreements under the private law and miscellaneous agreements between the airlines had created a legal labyrinth that moved further and further away from representing a unified liability system for carriage by air because different revision levels applied to the various states already party to or subsequently joining the Warsaw System . Since the air transport covers a large concept of this study, we will only deal with the air carrier liability during transportation of cargo. Thus, this study will not include transportation of passengers and baggage. As noted above, the object of this thesis is to analyse the liability of the air carrier during transportation of cargo under Warsaw Convention, under the European Law and under the Turkish law. This thesis confines itself to the contractual liability of the air carrier in respect of cargo carriage. It does not include the delictual liability of the manufacturers of the aircraft, traffic controller or airport authority or agents and tour operators towards passengers for acts of third parties are also not within the scope of the present study. This study consists of six chapters and the scheme of the thesis is as follows: First, it starts with the introduction to the story of civil aviation in general in introduction part. Chapter 1 traces the evolution of the concept of air carrier liability in international law of civil aviation, the history of the Warsaw Convention including basic sources and subsequent amendments to the Warsaw Convention beginning from the Hague Protocol 1955 to the Montreal Convention 1999. It is also dealing with the Intercarrier Agreements and European Regulations. Chapter 2 deals with the contract for the carriage of cargo by air, and the air waybill. Chapter 3 deals with the rights and obligations of the carrier. Chapter 4 deals with rights and obligations of the consignor. Chapter 5 deals with the rights and obligations of the consignee. Finally, Chapter 6 deals with the liability of the carrier, liability grounds and conditions, principles of limitation of liability, unlimited liability and liability suit.