ABSTRACT
In the early years of civil aviation, there were concerns that the development of the infant industry might be damaged by large damages awards in municipal courts made in respect of accidents.27 An attempt to reach agreement on claims in private law was made in the Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air (1929).28 The object of the Convention was first to produce a degree of uniformity in respect of documentation, tickets and liability rules. The second objective was to limit the potential liability of carriers in respect of personal injury or death in exchange for restricting the carrier’s defences. Under the Convention, the carrier was entitled to restrict his liability while the passenger or cargo owner did not have to prove negligence. Fault on the part of the carrier was presumed in the event of damage; the broad principle of the convention is both to establish liability but also to limit liability. The establishment of such a position in the municipal law of tort made it easier for infant carriers to obtain the necessary level of insurance cover. The Convention was amended by the Hague Protocol of 1955.29 A Convention supplementary to the Warsaw Convention was signed at Guadalajara in 1961; it concerns the situation where the ‘contracting carrier’ contracts all or part of the contract of carriage to an ‘actual carrier ’.30 However, the United States expressed dissatisfaction with the position following the Hague Protocol and, in 1966, the Montreal Agreement was negotiated, whereby a number of United States and foreign carriers agreed to higher limits and effective absolute liability. In 1971, the Hague Convention was further amended following a conference in Guatemala City organised by ICAO in 1971.31
In 1975, an international conference at Montreal accepted three additional Protocols32 modifying the three earlier versions of the Warsaw Convention, with the object of specifying the liability of the carrier in terms of Special Drawing Rights rather than gold francs under the original Warsaw Convention. In addition, Montreal Protocol No 4 applied to international carriers of cargo and postal items a form of strict liability similar to that as applied to passengers under the Guatemala Protocol.
