Air Charter and the Warsaw Convention: A Study in International Air Law

141 Pages·1956·3.137 MB·English

by  Kurt Grönfors LL.D. (auth.)

IN
1929, when the Warsaw Convention containing certain rules
relating to international carriage by air was drafted, charter ope
rations were very rare in the field of aviation. The question of the
applicability of the Warsaw Rules to air charter was therefore
intentionally left open. Nowadays charter operations form a sub
stantial part of air transportation. Thus, we are now forced to
seek a solution of the important problem whether or not the War
saw Rules are applicable to air charter agreements.
In this book, the problem of interpretation just mentioned has
for the first time been discussed in detail. The book may be useful
for all those who are interested in air law or engaged in air charter
operations. It may also be of current interest from an international
legislative point of view, as the problems concerning hire and char
ter of aircraft are now on the agenda of the Legal Committee
of ICAO.
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Air Charter and the Warsaw Convention
AIR CHARTER
AND THE WA«SAW CONVENTION
A Study in International Air Law
By KURT GR0NFORS
LL.D., Assistant Professor
Universib' of Stockholm
Springer-Science+Business Media, B.V
PUBLISHED WITH THE SUPPORT OF THE
Swedish Social Science and Legal Research Council
0 Springer Science+ Business Media Dordrecht
Originally published by Almqvist & Wiksel/Stockholm in 1956.
Softcover reprint oft he hardcover 1st edition 1956
Almqvist & Wiksells Boktryckeri AB
UPPSALA 1956
ISBN 978-94-017-6699-9 ISBN 978-94-017-6762-0 (eBook)
DOI 10.1007/978-94-017-6762-0
PREFACE
This study deals with a problem which is of practical im
portance chiefly to air carriers and may therefore seem to
be highly specialized. But it may also be looked upon as a
modest contribution to one particular aspect of an ever
fascinating general problem in legal theory-that of the
effect of mandatory rules.
Much of the material was collected during a stay in the
spring of 1954 at the Institute of International Air Law,
McGill University, Montreal. My research work in this world
center of civil aviation organization was made possible mainly
thanks to an invitation by Professor John Cobb Cooper, who
was then the Director of the Institute. I should like in this
place to express my gratitude to Professor Cooper for the
kind and generous interest he has taken in my work.
I also want to acknowledge the generosity of the Sweden
America Foundation, as well as of the Edvard Cassel Founda
tion, University of Stockholm.
For inspiring discussions and valuable information I am
much indebted to several foreign experts in air law and to
a number of Swedish friends.
january, z956.
K.G.
CONTENTS
Preface . .
5
Introduction
II
I
CHAPTER
The Concept of Charter Contract IS
The concept of charter contract in maritime law, p. I 5· - Differen
ces between maritime and air charter and their influence on the con
struction of the concept of air charter contract, p. I6. - The term char
ter as used in the air transport industry, p. 20. - Charter situations here
dealt with, p. 2 I. - A survey of the contents of a typical air charter
agreement, p. 22.
II
CHAPTER
The Two Main Problems
The parties to an air charter agreement, p. 25. - The question of the
applicability of the Warsaw Convention to charter situations, divided
Into two main problems, p. 26. - The relationship between these two
problems, p. 27. - Some remarks concerning the ability of the parties
to extend the scope of the Convention by agreement (Warsaw Clauses),
P· 29.
III
CHAPTER
Previously Suggested Methods for Deciding the Ap
plicability of the Warsaw Rules to Air Charter . . . 32
Introductory remarks, p. 32. - (I) The opinion that the Warsaw
Convention never applies, p. 33· - ( 2) The opinion that the Con-
vention applies where one of the parties controls the crew and, therefore,
the technical execution of the carriage, p. 37. - (3) The principles of
interpretation argued by Goedhuis, p. 40. - (4) The doctrine of "ob
ligation to carry" as basic principle for the interpretation, p. 48. -
(5) The importance of the issuance or the practical possibility of issuing
the required transportation documents, p. 55· - (6) The opinion that
the Convention always applies (with the important exception of bare
hull charter), p. 57·
IV
CHAPTER
An Analysis of the Two Main Problems 59
Introductory remarks, p. 59· - (I) The basic difference between car
riage by air and air charter, p. 59· - ( 2) The concept of carrier by
air, p. 62. - (3) The typical functions of a carrier within the mean
ing of the Warsaw Convention, p. 64. - (4) Some remarks concern
ing the relative importance of the various functions typical of a War
saw carrier, p. 6g. - (5) The possibilities of adapting the Warsaw
Rules to charter situations, as illustrated by an example: a travel agency
(a forwarding agency) charters an aircraft from an airline and then
individually sells the space, p. 71. - (6) Is the airline carrier in re
lation to the travel agency? p. 72. - ( 7) Who is carrier in relation
to passengers and shippers, the airline or the travel agency? p. 74· -
(8) The effects of agency and of interline traffic agreements, p. 82. -
(g) The characteristics qf the method of interpretation here suggested
as compared with previously discussed methods, p. 86. - (10) The
importance of the transportation documents, p. 87.
V
CHAPTER
Examination of Different Types of Situations Relat-
ing to Air Charter . . . . . . . . . . . . . . . . . go
Introductory remarks, p. go. - (I) The charterer uses the aircraft for
himself or for transporting his own merchandise p. go. - (2) The
charterer invites his family or his friends to join the flight without
charge, p. 92. - (3) Bare-hull charter, p. 93· - (4) Interchange
agreements (interchange of equipment), p. 94· - (5) Bare-hull charter
combined with "back charter" with licensed crew, p. 97· - (6) A
travel agency charters an equipped airplane and then individually sells
the space under Its own name, p. 100. - (7) The travel agency issues
the tickets and consignment notes on behalf of the owner qf the chartered
plane, p. I o I. - (8) The owner issues new sets qf transportation docu
ments before the actual take-off (joint liability?), p. I02. - (g) Other
cases qf group charters and combinations qf different types of charter
agreements, p. 105. - ( 10) Charter arrangement used in order not to
disclose the airline company really running a certain air service, p. I o6.
- (I I) Sub-charter contracts, p. 107. - (I 2) The "mixed crew cases",
p. 109·
VI
CHAPTER
Warsaw Clauses in Air Charter Agreements I I I
Reasons why the parties may be interested in including Warsaw Clauses
in the charter agreement, p. rr I. - The effect of these clauses, p. rr2.
- The lATA General Conditions qf Carriage, p. I I5. - The
ability of the owner and the charterer to decide which of them shall be
deemed to be carrier in relation to passengers and consignors, p. I I 5·
CONCLUSION II8
The applicability of the Warsaw Rules to the contract between the air
plane owner and the charterer, p. I I 8. - Recommendation as to the
construction qf the concept of charter, p. I I 8. - The applicability qf
the Convention in relation to passengers and consignors, p. I I g. - The
revision of the Warsaw Convention and its influence on the problem qf
interpretation analyzed in this study, p. I2I.
APPENDICES • • • • • • . • • . • • • • • • • • • • • • • I23
A. The Warsaw Convention, p. I25·
B. Extracts from the !ATA "Resolution 045" concerning the resale of
chartered space, p. I 42.
INTRODUCTION
In 1929, when the Warsaw Convention containing certain
rules relating to international carriage by airl was drafted,
the type of contract known as charter contract (charter agree
ment) was very rare in the field of aviation. Although the
question as to the applicability of the Convention to air
charter was raised at the Warsaw Conference, it was inten
tionally left open.2 The reason was that charter operations
were not yet sufficiently developed and clarified. Since that
time the situation has completely changed. Nowadays charter
operations form a substantial part of air transportation and
they show an increasing tendency to become more important.
One result of this evolution is that we now are forced
1 For the full text of this Convention, see infra, Appendix A.
1 II Conference Internationale de Droit Prive Aerien, 4-I2 Octobre
I929, Varsovie, Warszawa 1930 (lmprime et publie par les soins du Mi
nistere des Affaires :£trangeres de Pologne), pp. 97, 216-217. Cf. Coquoz,
Le droit prive international aerien, Paris 1938, pp. go, 279; Riese, Luft
recht, Stuttgart 1949, pp. 408-4og; Ambrosini, Noleggio e trasporto
aereo, Nuova rivista di diritto commerciale, diritto dell'economia, diritto
sociale 1952, pp. 224 et seq., on p. 225; Alten, ICAO Doc. 7450-LC/136,
p. 130; Litvine, Precis elementaire de droit aerien, Bruxelles 1953, No.
177 (p. 133); and Drion, Limitation of Liabilities in International Air
Law, The Hague 1954, No. uS (p. 13lJ)·