National Airlegislations and the Warsaw Convention

355 Pages·1937·11.216 MB·English

by  Dr. D. Goedhuis (auth.)

NATIONAL AIRLEGISLATIONS AND THE
WARSAW CONVENTION
By the same author:
LA CONVENTION DE V ARSOVIE. 1933.
National Airlegislations
and the
Warsaw Convention
BY
Dr. D. GOEDHUIS
Springer-Science+Business Media, B.V.
1937
ISBN 978-94-017-5727-0 ISBN 978-94-017-6081-2 (eBook)
DOI 10.1007/978-94-017-6081-2
CopY'right I937 by Springer Science+ Business Media Dordrecht
Originally published by Martinus Nijhoft, The Hague, Netherlands in I937
Softcover reprint oft he hardcover 1st edition I937
All rights reserved, including the right to translate or to reproduce
this book or parts thereof in any form
CONTENTS
PREFACE
INTRODUCTION . VIII
CHAPTER 1: NATIONAL AIRLEGISLATIONS . . . . . 11
Argentine 11; Australia 12; Austria 13; Belgium 15; Brazil
17; Bulgaria 22; Canada 23; Chili 24; China 25; Czechoslo
vakia 26; Denmark, Finland, Norway, Sweden 28; England
29; Esthonia, Latvia, Lithuania 41 ; France 41 ; Germany 65;
Greece 73; Hungary 75; Ireland 76; Italy 77; Japan 80;
Mexico 82; Netherlands 84; Poland 88; Rumania 92; Siam
93; Spain, Portugal 94; Switzerland 95; Turkey 97; Union
of South Africa 98; United States of America 100; U.S.S.R.
113; Venezuela 115; Yugoslavia 116.
CONCLUSION ON CHAPTER I . . . . . . . . . 118
CHAPTER II: THE WARSAW CONVENTION. 120
Section I Scope Definitions . . . 120
Section II Documents of carriage . . . . . . 148
Section III Liability of the carrier . . . . . . 187
Section IV Provisions relating to combined carriage 303
Section V General and final provisions 311
CONCLUSION . . . . . . . . . . . . . 316
TEXT OF THE WARSAW CONVENTION 317
LIST OF THE STATES WHICH HAVE RATIFIED OR
ADHERED TO THE WARSAW CONVENTION 330
BIBLIOGRAPHY. 334
ABBREVIATIONS 339
INDEX . . . . . 340
PREFACE
At its XXXVIIth Session held in Paris in ]ul!y I937, the
International Air Traffic Association following on a report by the
author of this study, decided to approach the Governments of those
countries which have not as yet brought their national legislation into
harmony with the Warsaw Convention and to draw the attention of
these Governments to the importance of appl!ying the rules of this
Convention to all ca"iage by air without exception.
In the first Chapter the reasons national air carriage must
necessarily be governed by the same principles of liability as
international air carriage, have been explained: it will be seen that
all over the world the extension of the regime of liability of the
Warsaw Convention to internal air carriage is steadily progressing.
In the second Chapter the Warsaw Convention itself has been
1%/lmined. As regards the contents of this Chapter it should be noted
Oult the I.A.T.A. has not yet made definite proposals regarding the
r~ oj the Warsaw Convention. The interpretations of the
articles oj ~ Convention and the proposals made in this study
regarding t'Mir modification represent the pecsonal point of view
of the author for which he alone is responsible.
D. GOEDHUIS
The Hague, October I937·
INTRODUCTION
The most particular characteristic of air traffic, as opposed to
other means of transport, is that air services, not being hampered
by any geographical obstacles, can by themselves alone connect
all the important points of the earth. As a consequence, the
tendency of air commerce is towards the operation of world air
lines encircling the globe 1.
From the very beginning the operation of regular airlines has
been international 2• In the early days of air line operation
national air lines did not play any role of importance. After 1927
when the United States of America embarked upon their extra
ordinary development of aviation, the role of purely national
lines in the field of air traffic in general grew in importance.
However, when in the coming years the transoceanic lines will
have developed to their expected extent, an important part of the
American lines, which are now purely national, will become of
international significance.
The predominantly international character of aviation entails
the adoption of certain basic principles by which air traffic in
general must be governed If uniformity of rules ;regulating public
as well as private law is useful for international carriage by sea
and land, such uniformity is an absolute necessity for carriage by
air.
Immediately after the great war a need was felt for uniformity
in public aviation law in order to assure a solid and efficacious
I. In 1935 the line to Indo China operated by the "Air France" was prolonged to
Hanoi and in the beginning of 1936 "Imperial Airways" inaugurated a service be
tween Penang and Hongkong. Europe was thus connected with the Chinese airnet.
On the 30th March 1936 the "Deutsche Zeppelin Reederei" started a regular service
between Francfort and New York and since 21st October 1936 the "Pan American
Airways" carry passengers on their San-Francisco-Manilla line. As soon as this last
line is prolonged to China, which is to be expected in the near future, the first airline
circle round the world will be complete.
2. The first regular air service started between Paris and Brussels on March 22nd I 919.
Goedhuis, Airlegislations
2 INTRODUCTION
organisation of air navigation. The Allied Powers assembled in
Paris for the Treaty of Versailles met to exchange points of view
on the elaboration of uniform regulations concerning public air
law. This meeting drew up the Convention relating to the regu
lation of aerial navigation dated October 13th 1919 fixing i.a. the
principle of the sovereignty of the Sta~e over the subjacent air
space, freedom of innocent passage, as well as technical questions
such as certificates of airworthiness, registration marks, licences
for the crew etc. This Convention was followed by two more or
less analogous Conventions, the Ibero-american Convention of
1926 and the Panamerican Convention of 1928.
In the domain of private law the necessity of a special regula
tion was not felt to be as urgent as in the domain of public law.
The fundamental rules of private law, owing to their greater
development and their generality, can adapt themselves more
naturally to a situation as new as that created by aviation.
However, owing to aviation's essentially international character,
here also it was felt that special regulations had to be made. An
example of a case which may arise at the present moment, will
illustrate this necessity.
A passenger takes a ticket for a journey by air from London to
Vienna viaAmsterdam-Stockholm-Reval-Riga-Warsaw-Prague.
As Austria, at the moment of writing, has not yet ratified the
Warsaw Convention, the carriage does not come under the rules
of this Convention. The ticket issued to the passenger stipulates
that actions must be brought before the Court of the carrier's
principal place of business and that the national law of the Court
seized of the case, shall apply.
The first part of the journey, London-Amsterdam, is operated
by an English, a Dutch and a German Company. The second part,
Amsterdam-Copenhagen-Stockholm by a Dutch, a French, an
English, a Swedish, a Danish, a German and a Belgian Company.
The third part of his journey, Stockholm-Reval, 'by a Swedish
and a Finnish Company, the fourth part, Reval-Riga by a Rus
sian and a Polish Company. The fifth part, Riga-Warsaw, by a
Polish Company. The sixth part, Warsaw-Prague, by a French
Company. The seventh and last part, Prague-Vienna, by an
English, a Czechoslovakian, a German, a French and a Dutch
Company. As the lines on which the passenger is travelling are
INTRODUCTION 3
operated in pool, it will as a rule not be possible for the passenger
to know what company will carry him in the course of his journey.
As the ticket states that actions must be brought before the
Court of the carrier's principal place of business and that the
national law of the Court seized of the case shall apply, it follows
that for such a journey the Courts of nine countries are competent,
and that these Courts, if seized of the case, will apply their own
law.
We will see that the law systems of several of these countries,
are completely different. Let us suppose that the ticket contains a
clause exonerating the carrier from all liability. As we will see in the
second chapter, such a clause in some countries will be considered
to be valid whereas in other countries it will be considered null
and void. In another country again the passenger will have an
option to sue in contract or in tort and the exemption of liability
will be considered valid as far as contractual liability is concerned,
but void as regards liability for tort. In the case of the death of
the passenger, the question --of the deceased's representatives
arises. Which persons can claim on his behalf? Does the exemp
tion clause prevent the representatives from claiming or does the
exemption clause have no effect on the representatives' claim as
it is a separate one? The answers to these questions will differ in
the different countries.
From the point of view of passengers and shippers of goods as
well as from the point of view of air carriers, uniformity of laws
governing carriage by air is an absolute necessity. It is, however,
not sufficient to agree on the necessity of regulating the liability
of the air carrier internationally. The time when the regulation
is to be made has also to be determined.
In inaugurating the Vlth Congress of the International Legal
Aviation Committee, which was held in Rome in 1924, M. Musso
lini warned the delegates against the danger of too much legis
lation. "Air navigation has not yet attained the technical per
fection that it will indubitably have tomorrow; civil air traffic is
not intense enough to permit of all the various problems, which
its development will certainly bring about, being considered.
That is why it is necessary not to create legislative texts that
events will prove practically inadequate and useless, but to leave
legal conscience to confront the problems as they arise under their