Cargo Liability
“State of the Union”
Dan Soffin
18 April 2015
Montreal, Quebec
Eighth Annual McGill Conference on International Aviation Liability & Insurance
State of the Union for Cargo Liability
Topics
• From Warsaw - Hague to MAP4 - Montreal 99
• The Legal Framework
• Jurisdictional Challenges and Global Uniformity
8th Annual McGill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP4 - Montreal 99
Air Waybill Issuance
•W
air waybill
• WH air waybill
• MAP4 air waybill + “any other means
which would preserve a record”
• M99 air waybill + “any other means
which would preserve a record”
8th Annual McGill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP4 - Montreal 99
Air Waybill Particulars
• W
Art 8
17 requirements (!)
• WH
Art 8
departure, destination, stopping place,
convention notice
• MAP4 Art 8 (AWB and Cargo Receipt)
departure, destination, stopping place, weight
• M99
Art 5 (AWB or Cargo Receipt)
departure, destination, stopping place, weight
8th Annual McGill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP4 - Montreal 99
Non Compliance
• W
no liability limitation (AWB or
particulars)
• WH no liability limitation (AWB or
particulars)
• MAP4 no effect on liability limitation
• M99 no effect on liability limitation
NB: contract of carriage still valid and otherwise
governed by the Convention
8th Annual McGill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP4 - Montreal 99
Destruction, loss, or damage (all Conventions)
• liability for damage sustained
• there must be an “occurrence” or “event” during the
“carriage by air”
• the occurrence or event must cause the damage
• unless proven otherwise, damage is presumed to have
occurred during carriage by air
NB:
• M99 Art 18(4) If without the consent of the shipper… Other
modes of carriage deemed to be carriage by air
• where does “misdelivery” fall?
8th Annual McGill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP4 - Montreal 99
Delay (all Conventions)
• carrier liable for damage occasioned by
delay
8th Annual McGill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP4 - Montreal 99
Defences
• W
- “all necessary measures” or impossibility
- negligent pilotage, handling of aircraft or navigation
contributory negligence applies to delay and
damage
• WH - “all necessary measures” or impossibility
- contributory negligence
- inherent defect, quality or vice applies to delay and
damage
8th Annual McGill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP4 - Montreal 99
Defences Cont’d
• MAP4
Delay:
Damage:
• M99
Delay:
Damage:
“all necessary measures” or impossibility
a) inherent defect, quality or vice
b) defective packing…
c) act of war or armed conflict
d) act of public authority…
“all measures reasonably required” or
impossibility
a) inherent defect, quality or vice
b) defective packing…
c) act of war or armed conflict
d) act of public authority…
Both Conventions allow contributory negligence defences for delay and
damage
8th Annual McGill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP4 - Montreal 99
Limitation
•
•
•
•
W
WH
MAP4
M99
250 FF/kg
250 FF/kg
17 SDR/kg (now 19 SDR)
17 SDR/kg (now 19 SDR)
Unlimited Liability
•
•
•
•
W
WH
MAP4
M99
wilful misconduct
intent or recklessness and with knowledge
unbreakable limit/absolute limitation
unbreakable limit/absolute limitation
8th Annual McGill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP4 - Montreal 99
Written Notice of Complaint
• W
Damage
Delay
7 days
14 days
• WH
Damage
Delay
14 days
21 days
• MAP4
Damage
Delay
14 days
21 days
• M99
Damage
Delay
• notices in writing
• person entitled to delivery
• no notice means no action
14 days
21 days
NB: is a Shipper’s notice valid?
8th Annual McGill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP4 - Montreal 99
Extinguishment
• All conventions provide for extinguishment after 2 years
from
• date of arrival at destination
• date on which aircraft ought to have arrived
• date on which carriage stopped
NB:
difference between “extinguishment” and “limitation”
8th Annual McGill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP4 - Montreal 99
The Current Picture
• widely adopted
• exclusivity widely established in powerhouse jurisdictions
• ready for e-freight ( when will e-freight be ready ? )
• clear monetary unit with unlimited liability no longer an issue
• preservation of essential defences and principles and now
unbreakable limits of liability
• remains unclear on “misdelivery”
• remains unclear on whether Shippers’ written notices of
complaint satisfy Arts 26/31
• litigation generally declining
8th Annual McGill Conference on International Aviation Liability & Insurance
The Legal Framework
• Warsaw – Hague – MAP4 – Montreal 99
• other conventions / modes of carriage
• IATA Resolution 600b: The Air Waybill
• IATA Recommended Practice 1601:
Conditions of Carriage For Cargo
• extra-contractual Terms & Conditions /
Obligations
• laws of the local jurisdiction
8th Annual McGill Conference on International Aviation Liability & Insurance
The Legal Framework
IATA Resolution 600b: The Air Waybill
• “…goods are accepted in apparent good order and
condition…”
• “goods may be carried by any other means including road,
unless contrary instructions are given hereon by the
Shipper…”
• incorporates conventions conditions of carriage, regulations,
tariffs, limitations on liability
• provides a contractual term to limit liability to 19 SDRs/kg
• incorporates requirement of written notice of complaint
• Incorporates provisions for extinguishment
NB:
various versions of 600b abound
8th Annual McGill Conference on International Aviation Liability & Insurance
The Legal Framework
IATA Recommend Practice 1601: Conditions of
Carriage
• incorporates Convention applicability and
provisions
• incorporates provisions of IATA Resolution 600b
• provides additional contractual terms which, if not
in conflict with Convention provisions, should be
upheld
• reinforces limitation of liability, written notice,
extinguishment, etc…
8th Annual McGill Conference on International Aviation Liability & Insurance
The Legal Framework
Extra-contractual Terms & Conditions/Obligations
• shipper’s additional “instructions”
• conflict with “no modification” terms (600b and 1601)
• does cargo acceptance and carriage matter?
Laws of the Local Jurisdiction
• does the convention apply?
• will the convention be applied?
• will it be treated as an exclusive cause of action?
8th Annual McGill Conference on International Aviation Liability & Insurance
Jurisdictional Challenges and Global Uniformity
Adoption
• M99 is most globally adopted of the
conventions
• still, less than 60% of ICAO contacting states
adhere
• does domestic enabling legislation keep up
with ratification or accession?
8th Annual McGill Conference on International Aviation Liability & Insurance
Jurisdictional Challenges and Global Uniformity
Exclusivity
•
•
•
•
will a state abide by convention provisions?
will domestic law be used as an adjunct?
does convention compete with domestic law?
do heavyweight jurisdictions carry weight?
8th Annual McGill Conference on International Aviation Liability & Insurance
Jurisdictional Challenges and Global Uniformity
Cultural Compatibility
• do local values and principles mesh with
convention principles?
• limitation of liability
• extinguishment
• damages
8th Annual McGill Conference on International Aviation Liability & Insurance
Jurisdictional Challenges and Global Uniformity
Tribunal and Judicial Attitudes
• awareness, understanding of convention
principles and intended outcomes
• interpretive skills in wide ranging jurisdictions
• awareness, synthesis of international judgments
• awareness, understanding of the aviation
industry
• commitment to principles of unification
• local plaintiff v. foreign carrier
• is there a remedy for every wrong?
8th Annual McGill Conference on International Aviation Liability & Insurance
Jurisdictional Challenges and Global Uniformity
Some Examples
• European Union
• India
• Brazil
8th Annual McGill Conference on International Aviation Liability & Insurance
THANK YOU
8th Annual McGill Conference on International Aviation Liability & Insurance
Eighth Annual McGill Conference on International Aviation Liability & Insurance