[Senate Treaty Document 107-14]
[From the U.S. Government Publishing Office]
107th Congress Treaty Doc.
SENATE
2d Session 107-14
_______________________________________________________________________
PROTOCOL TO AMEND THE CONVENTION FOR UNIFICATION OF CERTAIN RULES
RELATING TO INTERNATIONAL CARRIAGE BY AIR
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
PROTOCOL TO AMEND THE CONVENTION FOR THE UNIFICATION OF CERTAIN RULES
RELATING TO INTERNATIONAL CARRIAGE BY AIR SIGNED AT WARSAW ON OCTOBER
12, 1929, DONE AT THE HAGUE, SEPTEMBER 28, 1955 (THE HAGUE PROTOCOL)
July 31, 2002.--The Protocol was read the first time, and together with
the accompanying papers, referred to the Committee on Foreign Relations
and ordered to be printed for the use of the Senate
__________
U.S. GOVERNMENT PRINTING OFFICE
99-118 WASHINGTON : 2002
LETTER OF TRANSMITTAL
----------
The White House, July 31, 2002.
To the Senate of the United States:
I transmit herewith, for Senate advice and consent to
ratification, the Protocol to Amend the Convention for the
Unification of Certain Rules Relating to International Carriage
by Air Signed at Warsaw on October 12, 1929, done at The Hague
September 28, 1955 (The Hague Protocol). The report of the
Department of State, including an article-by-article analysis,
is enclosed for the information of the Senate in connection
with its consideration of The Hague Protocol.
The Warsaw Convention is the first in a series of treaties
relating to international carriage by air. The Hague Protocol
amended certain of the Warsaw Convention articles, including
several affecting the rights of carriers of international air
cargo. A recent court decision held that since the United
States had ratified the Warsaw Convention but had not ratified
The Hague Protocol, and the Republic of Korea had ratified The
Hague Protocol but had not ratified the Warsaw Convention,
there were no relevant treaty relations between the United
States and Korea. This decision has created uncertainty within
the air transportation industry regarding the scope of treaty
relations between the United States and the 78 countries that
are parties only to the Warsaw Convention and The Hague
Protocol. Thus, U.S. carriers may not be able to rely on the
provisions in the Protocol with respect to claims arising from
the transportation or air cargo between the United States and
those 78 countries. In addition to quickly affording U.S.
carriers the protections of those provisions, ratification of
the Protocol would establish relations with Korea and the five
additional countries (El Salvador, Grenada, Lithuania, Monaco,
and Swaziland) that are parties only to The Hague Protocol and
to no other treaty on the subject.
A new Convention for the Unification of Certain Rules for
International Carriage by Air, done at Montreal May 28, 1999
(the ``Montreal Convention'') is pending on the Senate's
Executive calendar (Treaty Doc. 106-45). I urge the Senate to
give its advice and consent to that Convention, which will
ultimately establish modern, uniform liability rules applicable
to international air transport of passengers, cargo, and mail
among its parties. But the incremental pace of achieving
widespread adoption of the Montreal Convention should not be
allowed to delay the benefits that ratification of The Hague
Protocol would afford U.S. carriers of cargo to and from the 84
countries with which it would promptly enter into force.
I recommend that the Senate give early and favorable
consideration to The Hague Protocol and that the Senate give
its advice and consent to ratification.
George W. Bush.
LETTER OF SUBMITTAL
----------
The Secretary of State,
Washington, June 15, 2002.
The President.
I have the honor to submit to you the Protocol to Amend the
Convention for the Unification of Certain Rules Relating to
International Carriage by Air Signed at Warsaw on October 12,
1929, done at The Hague September 28, 1955 (``The Hague
Protocol'' or ``the Protocol''). The Protocol was signed on
behalf of the United States on June 28, 1956 and was submitted
to the Senate for its advice and consent to ratification in
1959. It was returned to the President in 1967. The
circumstances that precluded ratification and led to the return
of the Protocol in 1967 have fundamentally changed, and I now
recommend that it be re-transmitted to the Senate for its
advice and consent to ratification.
BACKGROUND
Overview
The 1929 Warsaw Convention has been the subject of several
amendments and unsuccessful attempts at amendments over the
years. In 1955, The Hague Protocol, which doubled the passenger
liability limits and simplified cargo documentation
requirements, was adopted and was later ratified by most
countries, but not by the United States. In 1971, the Guatemala
Protocol again sought to raise the passenger limits, but was
ratified by very few States and never entered into force. In
1975, the so-called Montreal Protocols (Nos. 1-4) were adopted.
Of these four protocols, the United States is a party only to
Montreal Protocol No. 4, which amended the Warsaw Convention as
amended by The Hague Protocol, modifying the cargo provisions
of that instrument without altering the passenger provisions.
In 1999, a new Convention was adopted to eliminate in their
entirety the passenger liability limits and modernize the other
provisions of the Warsaw Convention and The Hague Protocol. The
1999 Convention is intended ultimately to replace the Warsaw
Convention and its various amendments. The United States signed
the 1999 Montreal Convention, and it was submitted for Senate
advice and consent to ratification in September 2000.
1. The Warsaw Convention and The Hague Protocol
The Convention for the Unification of Certain Rules
Relating to International Carriage by Air, done at Warsaw
October 12, 1929 (the ``Warsaw Convention''), provided
limitations on liability and uniform liability rules applicable
to international air transport of passengers, cargo and mail.
The Warsaw Convention was widely adopted, and the United States
has been a party since 1934. The Convention contained a very
low limit on the liability of carriers (approximately $8,300
per passenger at that time) for death or injury to passengers
in international air carrier accidents where the harm was not
due to the carrier's willful misconduct. Efforts to increase
this limit in the early 1950s led to The Hague Protocol, which
doubled the passenger liability limit and made other technical
improvements to the Convention, most notably in the area of
cargo documentation.
President Eisenhower submitted The Hague Protocol to the
Senate for its advice and consent to ratification on July 24,
1959. Because of concerns regarding the inadequacy of the new
limit on passenger recoveries, the Administration sought
enactment of a form of accident insurance legislation in
conjunction with ratification of the Protocol. The proposed
legislation would have required U.S. carriers to carry
supplemental accident insurance policies for each passenger in
international air travel to or from the United States covered
by the Warsaw Convention. It fixed various levels of
compensation based upon the type of injury sustained by the
passenger, up to $50,000. The insurance legislation package
failed, and The Hague Protocol was eventually returned to the
President in 1967.
2. The Montreal Inter-carrier Agreement (1966)
The failure of the insurance legislation package, coupled
with increasing dissatisfaction with the liability limits in
the Warsaw Convention, led the United States to submit a notice
of denunciation of the Warsaw Convention in November, 1965. In
1966, the United States withdrew this notice of denunciation
before it went into effect, in consideration of a private
voluntary agreement, negotiated under the auspices of the
International Air Transport Association (IATA), which was
signed by all major foreign and U.S. carriers serving the
United States (the ``Montreal Inter-carrier Agreement''). the
Montreal Inter-carrier Agreement ensured that accident victims
on flights to or from the United States are compensated for up
to $75,000 of proven damages, whether or not the negligence of
the carrier was the cause of the accident. In time, all foreign
carriers operating services to or from the United States
accepted the terms of the Montreal Inter-carrier Agreement, and
in 1983 the Civil Aeronautics Board adopted regulations
mandating participation (14 C.F.R. Part 203).
3. The 1975 Montreal Protocols
Although further diplomatic efforts were made to improve
the Warsaw Convention during the 1960s and 1970s, continuing
concerns regarding low passenger liability limits in part
prevented the United States from adopting new amendments to the
Convention. (See Message from the President of the United
States Transmitting the Convention for the Unification of
Certain Rules for International Carriage by Air, done at
Montreal, May 28, 1999, Treaty Doc. 106-45, 106th Cong., 2nd
Session, for more information regarding these diplomatic
efforts and the development of the Warsaw Convention system.)
In particular, four protocols were negotiated at the 1975
diplomatic conference in Montreal. The first three of these
protocols replaced the gold standard with the currency
conversion formula based on ``Special Drawing Rights''
(hereinafter referred to as ``SDRs'', an artificial ``basket''
currency developed by the International Monetary Fund for
internal accounting purposes) for purposes of calculating all
quantitative limitations on liability under the Warsaw
Convention, The Hague Protocol, and a 1971 protocol to the
Convention negotiated at Guatemala to which the United States
did not become a party. (As of 1975, only two States had
ratified the Guatemala Protocol.) The fourth protocol, the
Protocol to Amend the Convention for the Unification of Certain
Rules Relating to International Carriage by Air, as amended by
The Hague Protocol, done at Montreal September 25, 1975
(``Montreal Protocol No. 4''), among other things eliminated
the outmoded cargo documentation provisions of the Warsaw
Convention, thereby facilitating the application of electronic
commerce to international air cargo. Although the United States
signed Montreal Protocol No. 4, efforts to achieve Senate
advice and consent to ratification of this protocol in the
1980s and early 1990s, in conjunction with one of the other
protocols negotiated at Montreal that applied to passengers and
adopted the SDR standard, were unsuccessful due in large part
to concerns about the limits on passenger recoveries from the
Guatemala Protocol that had been incorporated into the other
protocol.
4. The IATA and ATA Inter-carrier Agreements (1997)
Recognizing the inadequacy of existing liability limits,
air carriers reached agreement in 1996 on three inter-carrier
agreements. In February 1997, the Department of Transportation
approved two IATA and one Air Transport Association (``ATA'')
agreements, all of which, at a minimum, waived the Warsaw
Convention liability limits in their entirety for participating
carriers, in effect superseding the 1996 Montreal Inter-carrier
Agreement by which carriers had earlier waived the limits on
liability up to $75,000 per passenger.
As of March 6, 2002, 123 international carriers,
representing more than ninety percent of the world's air
transport industry, had signed the IATA Inter-carrier Agreement
on Passenger Liability (``IIA''), which waives the Warsaw
liability limits. Most of the carriers signing the IIA also
signed the second IATA agreement, which requires carriers to
pay up to 100,000 SDRs (approximately $135,000) to accident
victims, regardless of carrier negligence. Consequently, any
accident victim having a claim against a carrier that was party
to this second IATA agreement would have an absolute right to
recover up to 100,000 SDRs of proven damages. The ATA
agreement, signed only by U.S. carriers, describes the manner
in which carriers agree to implement the two IATA agreements.
In addition to waiving the Warsaw liability limit for passenger
injuries and accepting 100,000 SDRs of strict liability,
airlines signatory to the ATA agreement also agree, subject to
applicable law, that compensation for passenger injuries may be
determined by reference to the law of the domicile or permanent
residence of the passenger.
5. Montreal Protocol No. 4 and Cargo Operations
In the wake of the IATA and ATA Inter-carrier Agreements,
the passenger liability limitations contained in the Warsaw
Convention and the The Hague Protocol, although objectionable
in principle to the United States, were no longer a significant
obstacle because they were, as a practical matter, superseded
in most cases by the IATA and ATA Inter-carrier Agreements, by
which most major international scheduled carriers had waived
those limits. The United States was thus in a position to
modernize the rules relating to the air cargo industry. With
the advice and consent of the Senate, the United States
ratified Montreal Protocol No. 4 on December 4, 1998; it
entered into force for the United States on March 4, 1999.
Among other things, this Protocol eliminated requirements for
paper-based transactions, including the requirement to complete
detailed air waybills.
6. The 1999 Montreal Convention
The IIA and Montreal Protocol No. 4 together represented a
reasonable interim fix, but not a long-term solution, to the
problem of creating a modernized uniform liability regime for
international air transportation. At present, carriers are
subject to vastly different liability regimes, depending upon
the treaties to which their governments are parties and the
private inter-carrier agreements that they have signed. Work on
a modernized convention to replace the fragmented Warsaw
Convention system was completed at the May 1999 International
Conference on Air Law in Montreal at which the Convention for
the Unification of Certain Rules for International Carriage by
Air, done at Montreal May 28, 1999 (the ``1999 Montreal
Convention''), was negotiated and opened for signature. The
United States immediately signed the 1999 Montreal Convention.
The President transmitted it to the Senate for advice and
consent to ratification (Treaty Doc. 106-45) on September 6,
2000. This Convention was a success with respect to all key
U.S. policy objectives, and once in force and widely ratified,
will replace the Warsaw Convention and its patchwork of
liability regimes, including the need for private voluntary
agreements.
7. Chubb & Son, Inc. v. Asiana Airlines
A recent decision by the U.S. Court of Appeals for the
Second Circuit in the case of Chubb & Son, Inc. v. Asiana
Airlines (214 F.3d 301 (2d Cir. 2000), cert. denied, 121 S. Ct.
2459 (2001)) has highlighted the fragmentation of the Warsaw
Convention system and raised uncertainties regarding the
liability regime that applies to U.S. carriers in certain
situations. The question presented in that case was whether the
United States, a party to the Warsaw Convention but not the The
Hague Protocol or to Montreal Protocol No. 4 at the time the
dispute arose, had treaty relations with the Republic of Korea,
a party only to The Hague Protocol. The court held that the
United States did not have treaty relations with Korea under
either The Hague Protocol or the Warsaw Convention, finding
that Korea's adherence to The Hague Protocol did not make Korea
a party to the unamended Warsaw Convention, to which the United
States was a party.
Although the Chubb decision did not address the 1999 entry
into force of Montreal Protocol No. 4 for the United States, it
focused industry attention on the difficult question of whether
the United States, by reason of its adherence to Montreal
Protocol No. 4 became a party to The Hague Protocol and
therefore entered into treaty relations under The Hague
Protocol with other countries party to that instrument (but not
to Montreal Protocol No. 4). U.S. carriers seek certainty
regarding the applicability of the Warsaw Convention system in
such situations.
If Montreal Protocol No. 4 does not create treaty relations
under The Hague Protocol, the United States' treaty relations
with the 78 countries that are parties to both the Warsaw
Convention and The Hague Protocol, but not to Montreal Protocol
No. 4, would be based on the Warsaw Convention unamended by any
later protocol. Further, under these circumstances, the United
States would have no treaty relations under the Warsaw
Convention system with Korea and the five other countries which
are parties only to The Hague Protocol (El Salvador, Grenada,
Lithuania, Monaco, and Swaziland).
The Warsaw Convention or 1929 contains antiquated rules in
the area of cargo documentation. Modern air cargo operations
bear no resemblance to those of 1929. The cumbersome rules of
the Warsaw Convention require much specific information on the
air waybill that has no commercial significance today and is
irrelevant to modern shippers. The requirements for such
extensive documentation:
--Make international air cargo transactions time
consuming and inefficient, and drive up their costs;
--Inhibit the free flow of international air
commerce; and
--Serve as a barrier to use of electronic information
exchanges.
Under the Warsaw Convention, U.S. cargo carriers must
comply with commercially unnecessary and outmoded documentation
rules or risk non-application by courts of the liability limits
for cargo established in the Convention.
Ratification of The Hague Protocol would resolve this
problem, ensuring U.S. carriers the benefits of The Hague
Protocol's more modern rules relating to documentation, which
are critical to the efficient movement of air cargo. It would
also provide a clear basis for courts in determining the
existence of treaty relations between the United States and
foreign countries. Ratification of The Hague Protocol will
secure for the United States the application of The Hague
Protocol's more modern rules in relations with the 84 countries
party to that instrument (but not to Montreal Protocol No. 4),
pending the entry into force and widespread ratification of the
1999 Montreal Convention, which is currently awaiting Senate
advice and consent.
Upon its entry into force, where applicable, the 1999
Montreal Convention will supersede the Warsaw Convention and
all of its protocols, and as a practical matter the voluntary
inter-carrier agreements, and will establish modern, uniform
liability rules applicable to international air transport of
passengers, cargo and mail. That Convention will enter into
force when thirty states have consented to be bound by it. As
of May 24, 2002, 18 states had deposited with ICAO, the
depositary for the Convention, instruments indicating their
consent to be bound.
THE PROTOCOL
The primary focus of The Hague Protocol at the time it was
negotiated was the doubling of the passenger liability limit to
approximately $16,600. However, the 1966 Montreal Inter-carrier
Agreement and later the IATA and ATA Inter-carrier Agreements,
by which signatory carriers voluntarily waived such limits,
have, as a practical matter in most cases, superseded this
meager recovery limit. The Hague Protocol improved upon the
1929 Warsaw Convention in several other ways. The principal
changes to the Warsaw Convention, many of which were later
incorporated into Montreal Protocol No. 4, to which the United
States became a party on March 4, 1999, are discussed below. A
more detailed review of the provisions of The Hague Protocol
follows.
Court Costs. Although the new liability limit for passenger
death or injury included in The Hague Protocol is not
applicable in light of the later inter-carrier agreements, a
useful related provision of that article (22(4)) adds language
to the Warsaw Convention permitting courts to award to the
claimant, in accordance with domestic law, added amounts for
court costs and other litigation expenses, including attorney's
fees, with the proviso that such recovery will not apply where
the amount of the damages awarded, excluding court costs, does
not exceed any prompt settlement offer made by the carrier.
Documentation. The Hague Protocol streamlines the
cumbersome documentation requirements of the Warsaw Convention,
particularly in the area of cargo transportation. Article 8 of
the Warsaw Convention requires that 17 separate categories of
information be included on cargo air waybills. Since much of
this information has no commercial significance, modern air
waybill forms in use worldwide do not require this information.
The Hague Protocol significantly reduces the information
required to be included in air waybills to those categories
related to the application of the Convention. Moreover, the
Warsaw Convention provides that non-compliance with any of
several of these documentation requirements would prohibit the
carrier from enforcing the liability limits of the Convention.
In contrast, The Hague Protocol provides that, with respect to
cargo documentation requirements, only the failure to make out
an air waybill prior to loading the cargo on board the
aircraft, or to give notice as to the liability limitations,
would preclude the application of carrier liability limits.
Willful Misconduct. The Warsaw Convention was written in
French, with no authentic English text. Article 25 of the
Warsaw Convention, as translated from the original French text
in the United States, provided that a carrier's liability will
not be limited when injury or death is caused by the ``willful
misconduct'' of the carrier or its agent. However, other
countries adopted different translations of this term that led
to disparate interpretations, and, as a consequence, led to
confusion among lawyers and judges attempting to apply the
Warsaw Convention. The Hague Protocol replaced the legal
standard with a description of the conduct itself that a jury
would be able to understand. The Protocol revises the provision
to make the carrier's liability without limit when damage
results from an act or omission of the carrier or its agent
``done with intent to cause damage or recklessly and with
knowledge that damage would probably result.'' This standard,
similar in all substantive respects to the charge to the jury
by a New York trial court in a well-known case (Froman v. Pan
American Airways, Supreme Court of New York County, March 9,
1953), is recognized as the common law definition of willful
misconduct and was not intended to modify the scope of the
standard.
Article by Article Analysis
Articles I and II of The Hague Protocol amend the Warsaw
Convention by making minor wording changes, without changing
the scope of the Warsaw Convention's application.
Articles III through IX of The Hague Protocol address the
documentation requirements for international air carriage of
passengers, baggage and cargo, significantly streamlining the
burdensome requirements of the Warsaw Convention. Article VI of
The Hague Protocol narrows the information required to be
included in cargo air waybills to include: the places of
departure and destination; if the place of departure and
destination are within the territory of the same Party with one
or more agreed stopping places in the territory of another
State, at least one such stopping place; and notice that if the
transportation involves an ultimate destination or stop in a
country other than the country of departure, the Warsaw
Convention may apply and in most cases limits the liability of
carriers. Articles III and IV of The Hague Protocol make
similar amendments to the documentation requirements for
passenger tickets and baggage checks, respectively.
Article V and Articles VII through IX of the Protocol
modify the cargo documentation requirements of the Warsaw
Convention in other ways. For example, Article V requires that
carriers sign air waybills prior to the loading of the cargo on
board the aircraft, rather than upon acceptance of the cargo,
as originally required by the Warsaw Convention. This new
language comports with the modern practice of cargo carriage,
including express delivery service. Article VII reduces the
circumstances under which non-compliance with documentation
requirements would preclude the application of carrier
liability limits to cases in which, with the consent of the
carrier, cargo is loaded on board the aircraft without an air
waybill having been made out, or where the air waybill omits
notice of the possible application of the Warsaw Convention,
including potential limits on carrier liability.
Articles X through XV of The Hague Protocol address the
liability of carriers. The Hague Protocol does not amend
Articles 17, 18 or 19 of the Warsaw Convention, which define
the conditions required for carrier liability for harm to
passengers, baggage and cargo, as well as damage occasioned by
delay in the transportation of passengers, baggage or cargo.
Article X of The Hague Protocol, like Montreal Protocol No. 4,
deletes Article 20, paragraph 2 of the Warsaw Convention, which
excludes carriers from liability for damage to baggage or cargo
if they prove that the damage was caused by an error in
piloting, in the handling of the aircraft, or in navigation and
that, in all other respects, the carrier and its agents had
taken all necessary measures to avoid the damage.
Article XI of the Protocol amends Article 22 of the Warsaw
Convention by doubling the limit on carrier liability for death
or injury to passengers. This limit was in effect superseded by
the 1966 Montreal Inter-carrier Agreement and the later IATA
and ATA Inter-carrier Agreements, by which the signatory
carriers voluntarily waived such limits. Article XI also adds a
provision stating that the weight to be used in calculating the
liability limit for loss, damage or delay of part of checked
baggage or cargo is the total weight of the package or packages
concerned, except that when the loss, damage or delay affects
the value of other packages covered by the same baggage check
or air waybill, the total weight of the affected package or
packages will also be considered.
Finally, Article XI adds a new paragraph 4 permitting
courts to award, in accordance with their own law, all or part
of the court costs and other litigation expenses, including
attorney's fees, incurred by the plaintiff, with the proviso
that damages awarded, excluding court costs and litigation
expenses, not exceed the amount of any settlement offer made in
writing by the carrier within six months of the occurrence
causing the damage or before the commencement of the action,
whichever is later.
Article XII of The Hague Protocol adds a new paragraph to
Article 23 of the Convention. Article 23 prohibits carriers
from contracting to reduce their liability under the
Convention. The new paragraph 2, however, permits carriers to
enter into such agreements regarding loss or damage resulting
from the inherent defect, quality or vice of cargo.
Article XIII of the Protocol replaces the term ``willful
misconduct'' with a description of the conduct itself,
providing that the limits on carriers' liability will not apply
``if it is proved that the damage resulted from an act or
omission of the carrier, his servants or agents, done with
intent to cause damage or recklessly and with knowledge that
damage would probably result; provided that, in the case of
such act or omission of a servant or agent, it is also proved
that he was acting within the scope of his employment.''
Article XIV of The Hague Protocol adds a new Article 25A to
the Convention regarding claims against servants and agents.
Paragraph 1 of the Article clarifies that servants or agents
may avail themselves of the same liability limitations to which
the carrier is entitled under the Convention, if they prove
that they were acting within the scope of their employment.
Paragraph 2 clarifies that the Convention's limits apply to the
aggregate of recoveries against the carrier and its servants
and agents. Paragraph 3 applies the willful misconduct
exception to the Convention's limits of liability with respect
to servants and agents and in the aggregation of claims. (The
provisions of Article 25A are reflected in Articles 30 and 43
of the 1999 Montreal Convention, which carry over the basic
principle that liability for conduct within the scope of
employment remains subject to the rules of that Convention,
regardless of whether the conduct was intentional or reckless.
However, as with Montreal Protocol No. 4, to which the United
States is a party, the willful misconduct exception to the
liability limits that is contained in Articles 30 and 43 of the
1999 Montreal Convention does not apply to cargo claims.)
Article XV of The Hague Protocol extends the time permitted
under the Warsaw Convention for lodging complaints regarding
baggage or cargo, increasing the period from three days from
the date of receipt to seven days in the case of damage to
baggage; from seven days from the date of receipt to fourteen
days in the case of damage to cargo; and from fourteen days
from the date on which the baggage or cargo was placed at the
person's disposal to twenty-one days in the case of delay.
Article XVI of the Hague Protocol replaces Article 34 of
the Convention, which entirely excluded experimental or
extraordinary air carriage from the Convention, with a
provision with exempts from Articles 3 through 9 (relating to
documentation) carriage in extraordinary circumstances outside
the normal scope of the carrier's business.
Article XVII adds new Article 40A to the Convention,
defining the expressions ``High Contracting Party'' and
``territory'' for purposes of the Convention.
Article XVIII provides that the Warsaw Convention as
amended by The Hague Protocol will apply to international
carriage an defined in Article 1 of the Convention, provided
that the places of departure and destination of the carriage
are situated either in the territories of two parties to the
Protocol or within the territory of a single party in the
Protocol with an agreed stopping place in another State
(whether or not that State is a party to the Protocol). Because
the United States is already a party to Montreal Protocol No.
4, which supersedes The Hague Protocol where applicable, the
Warsaw Convention as amended by The Hague Protocol will apply
to one-way international air carriage between the United States
and the territory of any country that is a party to The Hague
Protocol but not to Montreal Protocol No. 4. (There are
currently 84 such countries.) Round-trip international air
carriage beginning and ending in the United States with an
agreed stopping place in any other country would continue to be
governed by Montreal Protocol No. 4.
Article XIX through XXVII contain the final clauses of the
Protocol, a number of which address the relationship between
the Protocol and the Warsaw Convention. Article XIX provides
that, ``as between the parties to The Hague Protocol, the
Convention and the Protocol will be read and interpreted
together as one single instrument and shall be known as the
`Warsaw Convention as amended at The Hague, 1955.' '' Article
XXI, paragraph 2 and Article XXIII, paragraph 2, provide that
ratification or adherence to the Protocol by any State that is
not a party to the Warsaw Convention will have the effect of
adherence to the Warsaw Convention as amended by The Hague
Protocol. Therefore, states becoming a party to the Protocol do
not have to separately ratify or adhere to the Warsaw
Convention in order to be bound by the Warsaw Convention as
amended by The Hague Protocol. A recent decision by the U.S.
Court of Appeals for the Second Circuit held that these
provisions did not mean that ratification or adherence to the
Protocol had the effect of adherence to the unamended Warsaw
Convention for countries not already party to that Convention.
Chubb v. Asiana, 214 F.3d at 310. Lastly, Article XXIV,
paragraph 3 of the Protocol provides that, as between the
parties to the Protocol, denunciation by a party to the Warsaw
Convention will not constitute denunciation of the Convention
as amended by the Protocol.
Article XXIII, paragraph 3 provides that deposit of an
instrument of adherence with the depositary will take effect
ninety days after the deposit.
Article XXVI precludes reservations except that States may
declare that the Convention as amended by the Protocol will not
apply to ``the carriage of persons, cargo and baggage for its
military authorities on aircraft, registered in that State, the
whole capacity of which has been reserved by or on behalf of
such authorities.'' Consistent with past practice of the United
States under Montreal Protocol No. 4, I recommend that the
United States not make this declaration.
CONCLUSION
Together with the Department of State, the Departments of
Defense, Justice, Commerce and Transportation all concur in the
submission of the Protocol to the Senate for its advice and
consent to ratification.
Ratification of The Hague Protocol will ensure the benefits
of that instrument, most importantly more streamlined and
efficient cargo documentation rules, for the United States
pending the entry into force and widespread ratification of the
new 1999 Montreal Convention. For this reason, U.S. carriers
strongly urge ratification of this Protocol. I therefore
recommend that you transmit the Protocol to the Senate at an
early date with the recommendation that the Protocol be
approved at the earliest possible time.
Respectfully submitted,
Colin L. Powell.
Protocol To Amend the Convention for the Unification of Certain Rules
Relating to International Carriage by Air, Signed at Warsaw on 12
October 1929
The Governments undersigned
Considering that it is desirable to amend the Convention
for the Unification of Certain Rules Relating to International
Carriage by Air signed at Warsaw on 12 October 1929,
Have agreed as follows:
Chapter I
AMENDMENTS TO THE CONVENTION
Article I
In Article 1 of the Convention--
a) paragraph 2 shall be deleted and replaced by the
following:--
``2. For the purposes of this Convention, the
expression international carriage means any
carriage in which, according to the agreement
between the parties, the place of departure and
the place of destination, whether or not there
be a break in the carriage or a transhipment,
are situated either within the territories of
two High Contracting Parties or within the
territory of a single High Contracting Party if
there is an agreed stopping place within the
territory of another State, even if that State
is not a High Contracting Party. Carriage
between two points within the territory of a
single High Contracting Party without an agreed
stopping place within the territory of another
State is not international carriage for the
purposes of this Convention.''
b) paragraph 3 shall be deleted and replaced by the
following:--
``3. Carriage to be performed by several
successive air carriers is deemed, for the
purposes of this Convention, to be one
undivided carriage if it has been regarded by
the parties as a single operation, whether it
had been agreed upon under the form of a single
contract or of a series of contracts, and it
does not lose its international character
merely because one contract or a series of
contracts is to be performed entirely within
the territory of the same State.''
Article II
In Article 2 of the Convention--
paragraph 2 shall be deleted and replaced by the
following:--
``2. This Convention shall not apply to
carriage of mail and postal packages.''
Article III
In Article 3 of the Convention--
a) paragraph 1 shall be deleted and replaced by the
following:--
``1. In respect of the carriage of passengers
a ticket shall be delivered containing:
a) an indication of the places of
departure and destination;
b) if the places of departure and
destination are within the territory of
a single High Contracting Party, one or
more agreed stopping places being
within the territory of another State,
an indication of at least one such
stopping place;
c) a notice to the effect that, if
the passenger's journey involves an
ultimate destination or stop in a
country other than the country of
departure, the Warsaw Convention may be
applicable and that the Convention
governs and in most cases limits the
liability of carriers for death or
personal injury and in respect of loss
of or damage to baggage.''
b) paragraph 2 shall be deleted and replaced by the
following:--
``2. The passenger ticket shall constitute
prima facie evidence of the conclusion and
conditions of the contract of carriage. The
absence, irregularity or loss of the passenger
ticket does not affect the existence or the
validity of the contract of carriage which
shall, none the less, be subject to the rules
of this Convention. Nevertheless, if, with the
consent of the carrier, the passenger embarks
without a passenger ticket having been
delivered, or if the ticket does not include
the notice required by paragraph 1 c) of this
Article, the carrier shall not be entitled to
avail himself of the provisions of Article
22.''
Article IV
In Article 4 of the Convention--
a) paragraphs 1, 2 and 3 shall be deleted and
replaced by the following:--
``1. In respect of the carriage of registered
baggage, a baggage check shall be delivered,
which, unless combined wiht or incorporated in
a passenger ticket which complies with the
provisions of Article 3, paragraph 1, shall
contain:
a) an indication of the places of
departure and destination;
b) if the places of departure and
destination are within the territory of
a single High Contracting Party, one or
more agreed stopping places being
within the territory of another State,
an indication of at least one such
stopping place;
c) a notice to the effect that; if
the carriage involves an ultimate
destination or stop in a country other
than the country of departure, the
Warsaw Convention may be applicable and
that the Convention governs and in most
cases limits the liability of carriers
in respect of loss of or damage to
baggage.''
b) paragraph 4 shall be deleted and replaced by the
following:--
``2. The baggage check shall constitute prima
facie evidence of the registration of the
baggage and of the conditions of the contract
of carriage. The absence, irregularity or loss
of the baggage check does not affect the
existence or the validity of the contract of
carriage which shall, none the less, be subject
to the rules of this Convention. Nevertheless,
if the carrier takes charge of the baggage
without a baggage check having been delivered
or if the baggage check (unless combined with
or incorporated in the passenger ticket which
complies with the provisions of Article 3,
paragraph 1c)) does not include the notice
required by paragraph 1c) of this Article, he
shall not be entitled to avail himself of the
provisions of Article 22, paragraph 2.''
Article V
In Article 6 of the Convention--
paragraph 3 shall be deleted and replaced by the
following:--
``3. The carrier shall sign prior to the
loading of the cargo on board the aircraft.''
Article VI
Article 8 of the Convention shall be deleted and replaced
by the following:--
``The air waybill shall contain:
a) an indication of the places of departure
and destination;
b) if the places of departure and destination
are within the territory of a single High
Contracting Party, one or more agreed stopping
places being within the territory of another
State, an indication of at least one such
stopping place;
c) a notice to the consignor to the effect
that, if the carriage involves an ultimate
destination or stop in a country other than the
country of departure, the Warsaw Convention may
be applicable and that the convention governs
and in most cases limits the liability of
carriers in respect of loss of or damage to
cargo.
Article VII
Article 9 of the Convention shall be deleted and replaced
by the following:--
``If, with the consent of the carrier, cargo is
loaded on board the aircraft without an air waybill
having been made out, or if the air waybill does not
include the notice required by Article 8, paragraph c),
the carrier shall not be entitled to avail himself of
the provisions of Article 22, paragraph 2.''
Article VIII
In Article 10 of the Convention--
paragraph 2 shall be deleted and replaced by the
following:--
``2. The consignor shall indemnify the
carrier against all damage suffered by him, or
by any other person to whom the carrier is
liable, by reason of the irregularity,
incorrectness or incompleteness of the
particulars and statements furnished by the
consignor.''
Article IX
To Article 15 of the Convention--
The following paragraph shall be added:--
``3. Nothing in this Convention prevents the
issue of a negotiable air waybill.''
Article X
Paragraph 2 of Article 20 of the Convention shall be
deleted.
Article XI
Article 22 of the Convention shall be deleted and replaced
by the following:--
``Article 22
1. In the carriage of persons the liability of the
carrier for each passenger is limited to the sum of two
hundred and fifty thousand francs. Where, in accordance
with the law of the court seised of the case, damages
may be awarded in the form of periodical payments, the
equivalent capital value of the said payments shall not
exceed two hundred and fifty thousand francs.
Nevertheless, by special contract, the carrier and the
passenger may agree to a higher limit of liability.
2. a) In the carriage of registered baggage and of
cargo, the liability of the carrier is limited to a sum
of two hundred and fifty francs per kilogramme, unless
the passenger or consignor has made, at the time when
the package was handed over to the carrier, a special
declaration of interest in delivery at destination and
has paid a supplementary sum if the case so requires.
In that case the carrier will be liable to pay a sum
not exceeding the declared sum, unless he proves that
that sum is greater than the passenger's or consignor's
actual interest in delivery at destination.
b) In the case of loss, damage or delay of part of
registered baggage or cargo, or of any object contained
therein, the weight to be taken into consideration in
determining the amount to which the carrier's liability
is limited shall be only the total weight of the
package or packages concerned. Nevertheless, when the
loss, damage or delay of a part of the registered
baggage or cargo, or of an object contained therein,
affects the value of other packages covered by the same
baggage check or the same air waybill, the total weight
of such package or packages shall also be taken into
consideration in determining the limit of liability.
3. As regards objects of which the passenger takes
charge himself the liability of the carrier is limited
to five thousand francs per passenger.
4. The limits prescribed in this article shall not
prevent the court from awarding, in accordance with its
own law, in addition, the whole or part of the court
costs and of the other expenses of the litigation
incurred by the plaintiff. The foregoing provision
shall not apply if the amount of the damages awarded,
excluding court costs and other expenses of the
litigation, does not exceed the sum which the carrier
has offered in writing to the plaintiff within a period
of six months from the date of the occurrence causing
the damage, or before the commencement of the action,
if that is later.
5. The sums mentioned in francs in this Article shall
be deemed to refer to a currency unit consisting of
sixty-five and a half milligrammes of gold of
millesimal fineness nine hundred. These sums may be
converted into national currencies in round figures.
Conversion of the sums into national currencies other
than gold shall, in case of judicial proceedings, be
made according to the gold value of such currencies at
the date of the judgment.''
Article XII
In Article 23 of the Convention, the existing provision
shall be renumbered as paragraph 1 and another paragraph shall
be added as follows:--
``2. Paragraph 1 of this Article shall not apply to
provisions governing loss or damage resulting from the
inherent defect, quality or vice of the cargo
carried.''
Article XIII
In Article 25 of the Convention--
paragraphs 1 and 2 shall be deleted and replaced by
the following:--
``The limits of liability specified in
Article 22 shall not apply if it is proved that
the damage resulted from an act or omission of
the carrier, his servants or agents, done with
intent to cause damage or recklessly and with
knowledge that damage would probably result;
provided that, in the case of such act or
omission of a servant or agent, it is also
proved that he was acting within the scope of
his employment.''
Article XIV
After Article 25 of the Convention, the following article
shall be inserted:--
``Article 25A
1. If an action is brought against a servant or agent
of the carrier arising out of damage to which this
Convention relates, such servant or agent, if he proves
that he acted within the scope of his employment, shall
be entitled to avail himself of the limits of liability
which that carrier himself is entitled to invoke under
Article 22.
2. The aggregate of the amounts recoverable from the
carrier, his servants and agents, in that case, shall
not exceed the said limits.
3. The provisions of paragraphs 1 and 2 of this
article shall not apply if it is proved that the damage
resulted from an act or omission of servant or agent
done with intent to cause damage or recklessly and with
knowledge that damage would probably result.''
Article XV
In Article 26 of the Convention--
paragraph 2 shall be deleted and replaced by the
following:--
``2. In the case of damage, the person
entitled to delivery must complain to the
carrier forthwith after the discovery of the
damage, and, at the latest, within seven days
from the date of receipt in the case of baggage
and fourteen days from the date of receipt in
the case of cargo. In the case of delay the
complaint must be made at the latest within
twenty-one days from the date on which the
baggage or cargo have been placed at this
disposal.''
Article XVI
Article 34 of the Convention shall be deleted and replaced
by the following:--
``The provisions of Articles 3 to 9 inclusive
relating to documents of carriage shall not apply in
the case of carriage performed in extraordinary
circumstances outside the normal scope of an air
carrier's business.''
Article XVII
After article 40 of the Convention, the following Article
shall be inserted:--
``Article 40 A
1. In Article 37, paragraph 2 and Article 40,
paragraph 1, the expression High Contracting Party
shall mean State. In all other cases, the expression
High Contracting Party shall mean a State whose
ratification of or adherence to the Convention has
become effective and whose denunciation thereof has not
become effective.
2. For the purposes of the Convention the word
territory means not only the metropolitan territory of
a State but also all other territories for the foreign
relations of which that State is responsible.''
Chapter II
SCOPE OF APPLICATION OF THE CONVENTION AS AMENDED
Article XVIII
The Convention as amended by this Protocol shall apply to
international carriage as defined in Article 1 of the
Convention, provided that the places of departure and
destination referred to in that Article are situated either in
the territories of two parties to this Protocol or within the
territory of a single party to this Protocol with an agreed
stopping place within the territory of another State.
Chapter III
FINAL CLAUSES
Article XIX
As between the Parties to this Protocol, the Convention and
the Protocol shall be read and interpreted together as one
single instrument and shall be known as the Warsaw Convention
as amended at The Hague, 1955.
Article XX
Until the date on which this Protocol comes into force in
accordance with the provisions of Article XXII, paragraph 1, it
shall remain open for signature on behalf of any State which up
to that dare has ratified or adhered to the Convention or which
has participated in the Conference at which this Protocol was
adopted.
Article XXI
1. This Protocol shall be subject to ratification by the
signatory States.
2. Ratification of this Protocol by any State which is not
a Party to the Convention shall have the effect of adherence to
the Convention as amended by this Protocol.
3. The instruments of ratification shall be deposited with
the Government of the People's Republic of Poland.
Article XXII
1. As soon as thirty signatory States have deposited their
instruments of ratification of this Protocol, it shall come
into force between them on the ninetieth day after the deposit
of the thirtieth instrument of ratification. It shall come into
force for each State ratifying thereafter on the ninetieth day
after the deposit of its instrument of ratification.
2. As soon as this Protocol comes into force it shall be
registered with the United Nations by the Government of the
People's Republic of Poland.
Article XXIII
1. This Protocol shall, after it has come into force, be
open for adherence by any non-signatory State.
2. Adherence to this Protocol by any State which is not a
Party to the Convention shall have the effect of adherence to
the Convention as amended by this Protocol.
3. Adherence shall be effected by the deposit of an
instrument of adherence with the Government of the People's
Republic of Poland and shall take effect on the ninetieth day
after the deposit.
Article XXIV
1. Any Party to this Protocol may denounce the Protocol by
notification addressed to the Government of the People's
Republic of Poland.
2. Denunciation shall take effect six months after the date
of receipt by the Government of the People's Republic of Poland
of the notification of denunciation.
3. As between the Parties to this Protocol, denunciation by
any of them of the Convention in accordance with Article 39
thereof shall not be construed in any way as a denunciation of
the Convention as amended by this Protocol.
Article XXV
1. This Protocol shall apply to all territories for the
foreign relations of which a State Party to this Protocol is
responsible, with the exception of territories in respect of
which a declaration has been made in accordance with paragraph
2 of this Article.
2. Any State may, at the time of deposit of its instrument
of ratification or adherence, declare that its acceptance of
this Protocol does not apply to any one or more of the
territories for the foreign relations of which such State is
responsible.
3. Any State may subsequently, by notification to the
Government of the People's Republic of Poland, extend the
application of this Protocol to any or all of the territories
regarding which it has made a declaration in accordance with
paragraph 2 of this Article. The notification shall take effect
on the ninetieth day after its receipt by that Government.
4. Any State Party to this Protocol may denounce it, in
accordance with the provisions of Article XXIV, paragraph 1,
separately for any or all of the territories for the foreign
relations of which such State is responsible.
Article XXVI
No reservation may be made to this Protocol except that a
State may at any time declare by a notification addressed to
the Government of the People's Republic of Poland that the
Convention as amended by this Protocol shall not apply to the
carriage of persons, cargo and baggage for its military
authorities on aircraft, registered in that State, the whole
capacity of which has been reserved by or on behalf of such
authorities.
Article XXVII
The Government of the People's Republic of Poland shall
give immediate notice to the Governments of all States
signatories to the Convention or this Protocol, all States
Parties to the Convention or this Protocol, and all States
Members of the International Civil Aviation Organization or of
the United Nations and to the International Civil Aviation
Organization:
a) of any signature of this Protocol and the date
thereof;
b) of the deposit of any instrument of ratification
or adherence in respect of this Protocol and the date
thereof;
c) of the date on which this Protocol comes into
force in accordance with Article XXII, paragraph 1;
d) of the receipt of any notification of denunciation
and the date thereof;
e) of the receipt of any declaration or notification
made under Article XXV and the date thereof; and
f) of the receipt of any notification made under
Article XXVI and the date thereof.
In witness whereof the undersigned Plenipotentiaries,
having been duly authorized, have signed this Protocol.
Done at The Hague on the twenty-eighth day of the month of
September of the year One Thousand Nine Hundred and Fifty-five,
in three authentic texts in the English, French and Spanish
languages. In the case of any inconsistency, the text in the
French language, in which language the Convention was drawn up,
shall prevail.
This Protocol shall be deposited with the Government of the
People's Republic of Poland with which, in accordance with
Article XX, it shall remain open for signature, and that
Government shall send certified copies thereof to the
Governments of all States signatories to the Convention or this
Protocol, all States Parties to the Convention on this
Protocol, and all States Members of the International Civil
Aviation Organization or of the United Nations, and to the
International Civil Aviation Organization.
[Translation]
German Federal Republic:
Dr. Otto Riese 28. 9. 55
Gerd Rinck 28. 9. 55
Dr. J. Hubener 28. 9. 55
Belgium:
Van Der Straten Waillet
Brazil:
Trajano Furtado Reis 28. 9. 55
Claudio Ganns 28-9-55
Egypt:
Diaeddine Saleh 28/9/1955
United States of America:
[Joseph E. Jacobs June 28, 1956]
France:
J. P. Garnier
Andre Garnault 28 September 1955
Greece:
N. Anissas 28 September 1955
Constantine Chr. Hadjidimoulas 28 September 1955
Hungarian People's Republic:
V. Zalka 28 September 1955
Ireland:
Timothy J. O'Driscoll 28. IX. '55
Israel:
ad referendum
I. J. Mintz 28. 9. 1955
D. Bar Nes 28. 9. 1955
Italy:
Antonio Ambrosini
Laos:
P. Savann 28-9-55
Bourzay 28. 9. 55
Liechtenstein
Frederic Schaerer 28. 9. 55
Luxembourg:
Victor Bodson 28. 9. 55
Pierre Hamer 28. 9. 55
Mexico:
Enrique M. Loaeza 28-9-55
A. F. Rigalt 28-9-55
Norway:
Edvin Alten 28-9-55
Netherlands:
Goedhus 28-9-55
Philippines:
Simeon R. Roxas 28/9/55
Daniel Mc. Gomez 28/9/55
Polish People's Republic:
T. Findzinski 28/9-55
K. Pierzynski 28/9-55
S. Minorski 28/9/55
Portugal:
ad referendum
Fernando Quartin de Oliveira Bastos 28/9/55
Rumanian People's Republic:
M. Cociu 28.IX.1955
L. Badulescu 28.IX.1955
El Salvador:
P. A. Delgado B. 28 IX. 1955
M. Ramirez 28.IX.1955
Fr. Parraga 28/IX/55
Sweden:
Karl Sidenbladh 28.9.1955
Switzerland:
Fritz Stalder 28.9.1955
Republic of Czechoslovakia:
Fr. Novak 28.9.1955
V. Bauer 28.9.1955
Union of Soviet Socialist Republics:
V. Danilitchev 28-IX-1955
Venezuela:
Luis Chafardet-Urbina 28/9/55
Ramon Carmona 28-9-55
V. J. Delascio 28-9-55
Certified Copy Conforming with the Original.
Warsaw, the 16 March 1956.
M. Lachs
Prof. Dr. M. Lachs
The Chief of the Juridical and Treaty Division of the Ministry of
Foreign Affairs of the People's Republic of Poland.