The Warsaw Convention or formally the Convention for the Unification of Certain Rules Relating to International Carriage by Air is an international convention that standardizes the responsibility for international carriage of persons, goods, or luggage done by aircraft for reward. In 1929 it was signed in Warsaw, and it got revised at The Hague, the Netherlands in 1955. Further, in 1971 it was corrected in Guatemala City, Guatemala.

Background of the Convention

A suggestion was sent by the French government on 17th August 1923 for summoning a diplomatic session with the objective of formulating a convention with respect to the accountability in international carriage by air in November, 1923. In two instances, the conference was postponed as the government of many countries had to perform on the convention on such a short notice and without having proper information of the suggested convention.

However, in Paris between 27 October and 6 November, the session first met to study the proposed draft of the agreement. Unanimously, it was settled that to read the draft convention a body of legal and technical specialists should be formed prior to submitting the convention to the session for validation.

Therefore, in 1925, the International Technical Committee of Legal Experts on Air Questions (Comité International Technique d’Experts Juridiques Aériens, (CITEJA) was formed.1 The anticipated convention was studied and settled by the CITEJA and thus it was formulated into the amalgamation of laws and was then presented at the Warsaw Conference.

Formerly the Convention was written in French and the Ministry for Foreign Affairs of Poland’s records contains the original documents. The clashes of law and the conflict in a jurisdiction were resolved after the Convention got enforced on 13 February 1933. The International Civil Aviation Organisation (ICAO) formed a legal commission to once again study the Warsaw Convention. Further, a new draft to replace the Convention was prepared in the year 1952. Nevertheless, the new draft got rejected and it was agreed that rather than being substituted, the Convention would be amended.

At the ninth sitting of the International Conference on Air Law, the effort done by the legal board was submitted and the conference was summoned by the Council of the ICAO from 6to 28 September 1955 at The Hague. Further, for the amendment of the Warsaw Convention, The Hague Conference adopted a Protocol known as The Hague Protocol. In the Hague Protocol, it was established by the parties that the Warsaw Convention of 1929 and The Hague Protocol of 1955 should be read and construed together as one single document. And this document would be known as the Warsaw Convention as amended at The Hague Convention in 1955.

However, the Convention was not amended in the true sense but rather a new and distinct instrument was created that will be obligatory only between the parties. There was no common ground for international litigation and no shared instrument in the case where one State is a party to the Warsaw Convention and the other is a party to The Hague Protocol. Hence, replacing the Warsaw Convention system the Montreal Convention was taken on in 1999.

Objective and Purposes

As we have now understood the historical background of the Warsaw Convention, it becomes very crucial to know about the fundamental aims and objectives of this Convention. Knowing the purpose of the Convention will further facilitate in comprehending this module better.

• The provisions of the Warsaw Convention apply to all the international carriage of persons, goods, or luggage executed by aircraft for reward. Moreover, the Convention correspondingly applies to gratuitous carriage by aircraft executed by an air transport enterprise. Warsaw Convention came into existence for the bringing together of private international air law.

• The Convention recognizes the significance in international carriage by air of safeguarding defense of the welfares of consumers and the prerequisite of equitable reimbursement be founded on the norm of restitution.

• The desire to cultivate a systematic international air transport procedures as well as to smooth the movement of the passengers, cargo, and baggage according to the objective and principles of the Convention on Civil Aviation.

• To further harmonize and classify certain rules which administrate the international air carriage by means of a new Convention. This can be the most suitable means of undertaking a justifiable balance of interest.

The two foremost aims of the Warsaw Convention are as follows:

• The first one is to generate a scheme which is identical for all nations in the regulation of aviation issues like the transportation of baggage, movement of the cargo, air ticketing as well as the claims made by the passengers or by the customers in respect of the damage or the loss of luggage or cargo.
• The second primary objective of the Warsaw Convention was to control the quantum of damages sustained by the air carrier in cases of accidents with the balancing restrictions to the defenses that could be raised by the air carriers to circumvent the accountability.
• The purpose of the Warsaw Convention was to create certain rules apropos:
• The unification of techniques in the air navigation concerning ticketing and air cargo documentation
• Establishment of a presupposition of responsibility to be founded in favour of passengers in case of accidents
• Controlling the number of fora in which action can be brought
• Limiting the responsibility of the carrier with respect to each passenger6

Liability of Carrier in Case of Accident

Chapter III of the Warsaw Convention states the liability of the Carrier. Article 17 deals with the injury to the passengers. “The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

This Article formulates the rule of liability in cases of injury or death of the passengers. As per Article 17, the culpability of the Carrier is up to the parameters fixed in Article 22 only if is proved that the loss and damage are suffered due to:

1. Body injury, wound or death;
2. Caused to a passenger in transportation;
3. Due to an accident;
4. Occasioned damage;
5. While the passenger was onboarding;
6. Or in the embarking or disembarking of the processes.

The passengers, his heirs, and his estate have been given power under Article 17 to initiate an action against the Carrier in case of bodily injury sustained due to accident caused onboarding or while in the course of disembarking or embarking.

Who is a Carrier?

The term ‘Carrier’ as per the Warsaw Convention means the Carrier who was functioning the aircraft when the accident took place or if it did not take place on board then the carrier that was in the controller of the passenger. The term carrier was further extended to embrace agents, employees as well as independent contractors.

Who is a passenger?

The term passenger has not been explicitly defined in Article 17 but it can be inferred that the passenger must be a living person. Guadalajara Convention 1961 (Supplementary to the Warsaw Convention) Guadalajara Convention or the Convention supplementary to the Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier was signed in Guadalajara on 18 September 1961.

The proliferations in the charter as well as the intensification of other flights have brought the exercise of code-sharing contracts. In these agreements, without the settlement of the consigner would substitute his own performance of portion of the carriage with that of another carrier. Though, the actual carrier was not a party to the contract of carriage with the consignor. Thus, in 1961 a further convention was adopted in Guadalajara to prolong the rights and obligations of the contracting carrier covered under the 1929 Warsaw Convention to any non- contracting actual carrier.

Therefore, to the Warsaw Convention of 1929 or the Warsaw Hague Convention of 1955, the Guadalajara Convention of 1961 is added to either in a given case depending on which one is applicable. The Guadalajara Convention was approved by 84 States and was enforced on 1 May 1964.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on Facebook, Twitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge