Limitation of Liabilities in International Air Law

415 Pages·1954·11.487 MB·English

by  H. Drion (auth.)

LIMITATION OF LIABILITIES
IN INTERNATIONAL AIR LAW
LIMITATION OF LIABILITIES
IN INTERNATIONAL AIR LAW
BY
H. ORION
I I
.
.
Springer-Science+Business Media, B.V.
1954
© I954 Springer Science+ Business Media Dordrecht
OriginaUy published by Matinus Nijlwff, The Hague, Holland in I954
Softcuver reprint rf the hardcuver 1st edition I954
All rights reserved, including the right to translate or to reproduce
this book or parts thereof in any form.
ISBN 978-94-017-5751-5 ISBN 978-94-017-6127-7 (eBook)
DOI 10.1007/978-94-017-6127-7
PREFACE
Though the title speaks generally of limitation of liabilities
in international air law, this book will only deal with the problems
arising in connection with limitation of liability under the
Warsaw Convention of 1929 and under the two Rome Con
ventions of 1933 and of 1952 on surface damage. With respect
to the latter Conventions most attention will be devoted to the
Convention of 1952, for the practical reason that, whatever may
be the future of this more recently signed Convention, the
interest of its predecessor, notwithstanding the popularity which
it has enjoyed with students of air law, now seems mainly to lie
in its past.
Since the limitations of liability provisions are as important
for the Warsaw Convention as they are for the Rome Con
ventions, and since they raise a number of similar problems, it was
thought worth while to devote a combined study to the three
conventions, in order to bring out the similarities and the differ
ences. For that purpose it was necessary, in stead of dividing
this book in two sections, one devoted entirely to the Warsaw
Convention and the other to the Rome Conventions, to discuss
with respect to each separate problem arising in connection With
limitations of liability, how it has been treated in the three
Conventions respectively. This has resulted in a somewhat
complicated pattern.
Another source of complications was the necessity of frequent
references to national laws. International air law, like one of
these huge waringin trees of tropical countries, has its aerial roots
hanging down in the soil of as many national systems of laws,
as there are countries flown over by aircraft. It is not a self
sufficient closed system, but must feed itself on local law. One
cannot transplant it to the hot-house of a textbook without
taking also parts of these national laws sticking to its roots.
v
PREFACE
What in other fields might be a more or less superfluous parade
of learning, is in a study on international private air law the
minimum - or an attempt thereto - for a realistic description
of the actual problems arising in this branch of the law. Even to
limit the references to the legal systems of England, the U.S.A.,
France and Germany - as studies in comparative law often do
- would be to ignore the fact that civil aviation refuses to be
kept within the geographical boundaries of what happen to be
the countries with the better known systems of law. The interest
of French or English law becomes academical when a flight, say,
between Buenos Aires and Amsterdam is involved. Meanwhile
it is clearly impossible to deal, be it ever so superficially, with
the laws of all or even the majority of countries where aircraft
may pass. A choice must be made, and it will be an arbitrary
choice, determined by the hazard of available books and of
personal preferences. The real purpose of discussing national
laws in a study on international air law, therefore, can only be
to cultivate a certain awareness as to the existence of possibilities
outside the sphere of one's own legal thinking, an awareness
which is as essential for the intelligent interpretation of the air
law conventions, as it is necessary for the handling of the day
to-day legal problems which arise out of international air
transportation. In order not to obscure the international charac
ter of the air law conventions which are the subject of this study,
matters of national law have generally been relegated to the
footnotes.
Since Latin has ceased to be the accepted medium of communi
cation of the learned world, the language problem has become
one of the most difficult in international discussions of legal
matters. The loss which the disappearance of the Latin language
has been to Western civilization is felt most keenly perhaps by
those whose mother tongue happens to be one of the less spoken
languages. There was a time that Dutch authors would write
their books in Latin and would be understood all over the Western
world. Authors and readers would have the same handicap, if
any. The Dutch author who now wants to write for a public
outside the boundaries of the Dutch language, has to choose one
of the international languages and will experience - at least
this author did - the kind of frustration suffered by the person
VI
PREFACE
who attends a formal dinner in borrowed clothes which he knows
do not fit too well. Moreover, in legal thinking even more than
in other matters, choice of a language implies a choice of ap
proach. The mere using of the English language sets its stamp
on the way of one's legal thinking.
The writing of this book has been made possible thanks to the
generosity of the Van Vollenhovenfonds of Leiden University,
of the Harvard Law School, and of the Institute of Air Law of
McGill University, as well as to the kind and generous co-oper
ation of the Koninklijke Luchtvaart Maatschappij N.V. (K.L.M./
Royal Dutch Airlines). Though it is the direct result of work
done at the Institute of Air Law of McGill University, under the
inspiring guidance of its Director Professor John Cobb Cooper,
much of the materials relating to comparative law were already
collected during the author's stay in 1946/1947 (repeated in May
1953) at the Harvard Law School, that paradise for students in
comparative law. To work at these institutes and to enjoy the
hospitality so liberally offered, was a unique experience. I
should also like at this place to express my gratitude for having
enjoyed through a number of years the privilege to make use of
the fine collections of international law and comparative law at
the Library of the Palace of Peace at The Hague, and especially
for the never failing helpfulness of the members of the Library
Staff.
The writing of this book was completed by the 1st of March,
1954, so that publications and decisions which have appeared
after that date could not be taken into account.
August, 1954. H.DRION
VII
TABLE OF CONTENTS
References are to pages
TABLE OF CASES . . . . xn
LIST OF BOOKS . . . . . xxu
LIST OF ABBREVIATIONS xxv
I. THE GROUNDS FOR LIMITATION OF LIA
BILITY IN PRIVATE AIR LAW
§ I. INTRODUCTORY REMARKS • . • . . • . • • •
§ 2. RATIONALESOFTHEVARIOUSFORMSOFLIABILITY 6
§ 3. RATIONALES OF LIMITATION OF LIABILITY . 12
a) Analogy with maritime law . . . . . . . . 13
b) Protection of a financially weak industry . . I 4
c) Catastrophical risks should not be borne by
aviation alone . . . . . . . . . . . . . I 7
d) Desirability that the carrier or operator be able
to insure his liability risks . . . . . . . . 20
e) Possibility for the potential claimants to take
insurance themselves . . . . . . . . . . 2 I
f) Limitation of liability as a counterpart of the
aggravated system of liability imposed upon the
carrier and operator . . . . . . . . . . . 28
g) A voidance of litigation by facilitating quick
settlements . . . . . . . . . . . . 36
h) Unification of the law with respect to the
amounth of damages to be paid . . . . . . 4 I
§ 4. EXCEPTIONS TO LIMITATION OF LIABILITY:
WILFUL MISCONDUCT . . . . . . . . . . . . 44
II. SCOPE OF APPLICATION OF THE LIMITATION
OF LIABILITY PROVISIONS 51
§ I. WARSAW CONVENTION . • . • . • • . 5 I
A) Scope of Application of the Convention 5 I
IX
TABLE OF CONTENTS
B) Scope of Application of Article 22 69
§ 2. THE ROME CONVENTIONS 87
§ 3. RECOURSE ACTIONS . . . 99
A) Warsaw Convention. 99
B) Rome Conventions. . 107
§ 4. LEGAL INTERESTS AND LEGAL EXPENSES . 112
III. EXTENT OF DAMAGES FOR WHICH LIA
BILITY IS TO BE LIMITED 116
§ I . REMOTENESS OR UNFORESEEABILITY OF DAMAGES 117
§ 2. CONTRIBUTORY NEGLIGENCE • . . . • • . • 123
§ 3. EFFECT OF CONVENTIONAL LIMITS ON LOWER
LIMITS IN APPLICABLE MUNICIPAL LAWS • • • • 125
IV. PERSONS PROTECTED BY THE LIMITATION
PROVISIONS 132
§ 1. CARRIER AND OPERATOR 133
A) Warsaw Convention . I33
B) Rome Conventions 143
§ 2. OTHER PERSONS BURDENED WITH LIABILITY BY
MUNICIPALLAW • . . • . . . • . . . . • 146
§ 3. SERVANTS, AGENTS AND OTHER THIRD PARTIES 152
V. CALCULATION OF LIMITS 163
§ 1. WARSAWCONVENTION • • • . . • . . 163
§ 2. ROME CONVENTIONS • • . • • • . • • 174
§ 3. CONVERSION INTO NATIONAL CURRENCIES 182
VI. WILFUL MISCONDUCT AND GROSS NEGLI
GENCE: THEIR EFFECT ON LIMITATION OF
LIABILITY 195
§ 1. INTRODUCTORY REMARKS . • • 195
§ 2. KIND OF MISCONDUCT REQUIRED I 97
A) Warsaw Convention . . . . 197
B) Rome Conventions . . . . 232
§ 3. MISCONDUCT BY SERVANTS OR AGENTS 236
A) Warsaw Convention . . . 236
B) Rome Conventions 255
§ 4. EFFECT OF THE CARRIER'S OR OPERATOR'S
WILFUL MISCONDUCT • • 260
A) Warsaw Convention . 260
B) Rome Conventions 263
X
TABLE OF CONTENTS
VII. SPECIAL CASES OF UNLIMITED LIABILITY 265
§ 1. UNLIMITED LIABILITY AS A SANCTION FOR NON
COMPLIANCE WITH REQUIREMENTS CONCERNING
TRAFFIC DOCUMENTS {WARSAW CONVENTION) 265
A) Contractual Clauses Unaffected . . . . . . 265
B) Choice of Law As To Validity of Contractual
Clauses . . . . . . . . . . . . . . 272
C) Municipal Laws As To Validity of Con
tractual Clauses . . . . . . . . . . . . 277
D) Requirements To Which Sanction Is Attached 299
§ 2. DECLARATION OF VALUE {WARSAW CONVENTION) 314
§ 3. WRONGFUL TAKING OF AIRCRAFT (ROME CON
VENTION, 1952) . . . . . . . . . . . . . 322
VIII. DISTRIBUTION OF LIMIT IN CASE OF PLU
RALITY OF CLAIMANTS 324
§ 1. INTRODUCTORY REMARKS • • • • • • • . • . 324
§ 2. DISTRIBUTION OF AMOUNT OF LIMIT AMONGST
VARIOUS CLAIMANTS . . • 327
§ 3. APPLICATION OF LIMITS IN CASE OF CLAIMS BEING
BROUGHT BEFORE MORE THAN ONE COURT 334
ANNEX I: WARSAW CONVENTION . • 346
ANNEX II: ROME CONVENTION, 1952. 367
INDEX . . . . . . . . . . . . . . 380
XI