[Congressional Record Volume 144, Number 132 (Monday, September 28, 1998)]
[Senate]
[Pages S11059-S11062]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MONTREAL PROTOCOL NO. 4--TREATY DOCUMENT NO. 95-2(B)
Mr. ROBERTS. Mr. President, I ask unanimous consent that the Senate
proceed to consider the following treaty on today's Executive Calendar,
No. 22. I further ask unanimous consent that the treaty be considered
as having passed through its various parliamentary stages up to and
including the presentation of the resolution of ratification; all
committee provisos, reservations, understandings, declarations, be
considered agreed to; that any statements be inserted in the
Congressional Record as if read; and I further ask consent that when
the resolution of ratification is voted upon, the motion to reconsider
be laid upon the table, the President be notified of the Senate's
action, and, following the disposition of the treaty, the Senate return
to legislative session.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ROBERTS. I ask for a division vote on the resolution of the
ratification.
The PRESIDING OFFICER. A division is requested. Senators in favor of
the ratification will rise and stand until counted.
All those opposed to ratification, please rise and stand until
counted.
On a divisions, two-thirds of the Senators present and having voted
in the affirmative, the resolution of ratification is agreed to.
The resolution of ratification is as follows:
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Montreal Protocol No. 4 to Amend the
Convention for the Unification of Certain Rules Relating to
International Carriage by Air, signed at Warsaw on October
12, 1929, as amended by the Protocol done at The Hague on
September 8, 1955 (hereinafter Montreal Protocol No. 4)
(Executive B, 95th Congress, 1st Session), subject to the
declaration of subsection (a), and the provisos of subsection
(b).
(a) Declaration.--The Senate's advice and consent is
subject to the following declaration:
(1) Treaty interpretation.--The Senate affirms the
applicability to all treaties of the constitutionally based
principles of treaty interpretation set forth in Condition
(1) of the resolution of ratification of the INF Treaty,
approved by the Senate on May 27, 1988, and Condition (8) of
the resolution of ratification of the Document Agreed Among
the States Parties of the Treaty on Conventional Armed Forces
in Europe, approved by the Senate on May 14, 1997.
(b) Provisos.--The resolution of ratification is subject to
the following provisos:
(1) Supremacy of the constitution.--Nothing in the Treaty
requires or authorizes legislation or other action by the
United States of America that is prohibited by the
Constitution of the United States as interpreted by the
United States.
(2) Return of protocol no. 3 to the president.--Upon
submission of this resolution of ratification to the
President of the United States, the Secretary of the Senate
is directed to return to the President of the United States
the Additional Protocol No. 3 to Amend the Convention for the
Unification of Certain Rules relating to International
Carriage by Air, signed at Warsaw on October 12, 1929, as
amended by the Protocols done at The Hague, on September 28,
1955, and at Guatemala City, March 8, 1971 (Executive B, 95th
Congress).
Mr. BIDEN. Mr. President, I am pleased to support Montreal Protocol
No. 4, which will simplify the rules for cargo and baggage liability in
international air traffic. It is important for the Senate to act now,
because Protocol No. 4 has already entered into force. Consequently,
U.S. carriers and cargo companies are unable to take advantage of these
simplified rules, at a significant economic cost. U.S. industry
estimates that Protocol No. 4 will save them $1 billion annually.
The treaty has been pending in the Senate for over 20 years. It
failed to gain support not because it is controversial, but because it
has been the victim of misfortune--having been paired, in its
submission to the Senate, with Montreal Protocol No. 3, a treaty
placing unreasonably low limits on personal liability in international
air traffic. I oppose Protocol No. 3, because I believe strongly that
limits on personal liability contained in the treaty are an
anachronism. Such limits may have been warranted when the underlying
Warsaw Convention was drafted in 1929, a time when the airline industry
was in its infancy. Now, however, when international air carriers are
large corporations with significant financial resources--and thus fully
capable of purchasing adequate insurance--there is no justification for
such limits.
For the past two decades, the aviation industry and the Executive
Branch unsuccessfully sought ratification of Protocol No. 3 and No. 4.
Only once did the Protocols reach the full Senate floor. In 1983, the
Senate voted 50-42 to approve them, far short of the two-thirds
necessary for advice and consent to ratification.
Recognizing that Protocol No. 3 cannot be approved by the Senate, the
industry and the Executive have effectively abandoned the effort, and
have requested the Senate to proceed with consideration of Protocol No.
4. The resolution of ratification of Protocol No. 4 will bring a formal
end to the misguided effort to approve No. 3: the resolution directs
the Secretary of the Senate to return Protocol No. 3 to the President.
More importantly, the industry, acting through its association, the
International Air Transport Association, has taken steps to waive these
personal liability limits. Consequently, most of the leading air
carriers have agreed in their contracts with passengers to waive all
personal liability limits, and agreed to strict liability up to 100,000
Special Drawing Rights, or about $130,000.
These are positive developments, and I commend the airlines for
taking these steps. Although not all carriers have waived the liability
limits, all of the major U.S. carriers have, as have many of the
leading foreign carriers which fly to the United States. I urge the
Department of Transportation to make every effort to ensure that all
carriers involved in international air traffic which fly within or to
or from
[[Page S11060]]
the United States do so as soon as possible.
I hope that these measures, which are based on contract, not on any
domestic law or international treaty, will eventually be codified in a
new international instrument--an instrument that would firmly establish
international norms and provide certainty for carriers and passengers
alike. Negotiations toward that end are ongoing under the auspices of
the International Civil Aviation Organization (ICAO).
One sticking point in these negotiations has been the question of a
``fifth jurisdiction.'' Under the current Warsaw Convention, a suit may
be brought in any one of four places: the place of incorporation of the
carrier, the carrier's principal place of business, the place where the
ticket was sold, and the place of the ultimate destination of the
passenger. Notably missing from this list is the place where the
passenger lives, or, in legal terms, his ``domicile.'' As a practical
matter, most Americans will be able to sue in U.S. court under the
existing four jurisdictions; but there will be cases in which a
passenger buys a ticket overseas on a foreign carrier--which would
probably preclude that passenger from bringing a suit in a U.S. court.
The Clinton Administration is pressing for inclusion of the fifth
jurisdiction in any new international instrument. I commend the
Administration for taking this position. Including a fifth jurisdiction
should be considered an essential element of any new international
agreement on passenger liability.
At this point, I would like to call the attention of my colleagues
and the Executive Branch to a speech delivered earlier this year by Lee
Kreindler regarding these negotiations. Mr. Kreindler, an aviation
attorney with over four decades of experience, has provided a helpful
guide to the current legal situation in this area and to the ICAO
negotiations.
I ask unanimous consent that they be printed in the Record at the
conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit 1.)
Mr. BIDEN. Mr. President, Montreal Protocol No. 4 is a useful step in
modernizing the rules of cargo and baggage in international air
traffic. I urge my colleagues to support it.
Exhibit 1
Clouds on the Liability Horizon and What We Can Do About Them
(By Lee S. Kreindler)
I am honored to appear on this symposium, the second
straight year in which I have been on your program. After
all, as a plaintiff's laywer, I have spent much of the last
forty five years bringing legal actions against IATA's
members, the international airlines. More important than
that, perhaps, I have spent most of that time being highly
critical of IATA's role in promoting the Warsaw Convention
and its progeny, and in defending and preserving a limit of
liability that to me, and all of my clients, has been
abhorrent.
Now I find myself applauding your monumental efforts, and,
particularly the monumental efforts of your distinguished
general counsel, Lorne Clark, to put an end to limits of
liability in personal injury and death cases. I find that,
after all these years, we are in synchronization, pulling
together to create a system that will protect the interests
of your member carriers' customers, the flying public, and
their families, and at the same time preserve the interests
of your airline members. To me this is an uplifting and
energizing experience.
I want IATA's efforts to establish a fair and enforceable
system of liability in international air law, as well as my
own efforts, to succeed. I have nothing but praise for IATA's
courage in leading its member airlines to waive the liability
limits of the Warsaw Convention. The IATA Agreement was long
and hard in coming, but it was a remarkable achievement given
the political and economic realities of the world. You
deserve enormous credit for bringing it about. I say that, as
your long time adversary, without condition or qualification.
You have done a wonderful job, for which the flying public
owes you thanks.
I think it would be a great mistake, however, to revel in
the glory of accomplishment, and ignore problems and threats
which could very well bring this brave new dream crashing
down. And so my concern now, as a friend, is that the new
system, because of its inherent weaknesses, may fail. Indeed,
I see clouds on the horizon, and I want to address them with
you while there is still time to deal with them, so that,
together, we can build a strong and lasting structure that
can and will withstand the storms that are sure to come.
Problems With the IATA-ATA Agreements and the Resulting System--A
Foundation Based on Contract
The basic law in international airline liability is still
provided by the Warsaw Convention, which was effectively
modified in 1966, with respect to transportation involving
the United States, to increase the passenger injury and death
limitation to $75,000. Onto this convention there have now
been engrafted three agreements, the IATA Intercarrier
Agreement (IIA), the Agreement on Measures to Implement the
IATA Intercarrier Agreement (MIA), and the ATA Intercarrier
Agreement, also known as Provisions Implementing the IATA
Intercarrier Agreement (IPA), applicable, at least, to those
carriers which have signed the agreements.
Each of the three agreements, IIA, MIA, and IPA is a
private contractual agreement sponsored by either IATA or ATA
and signed by individual airlines. Some of these agreements,
by some of the signatory airlines, have been incorporated in
tariffs, which have been filed with the U.S. Department of
Transportation. This does not, however, turn them into
``law.'' They are still private contracts which, by virtue of
the tariffs, are incorporated in the airline's conditions
of contract.
In the first of these agreements, IIA, the signatory
airlines agreed to ``take action'' to waive the limitation of
liability on recoverable compensatory damages, which, since
the Montreal Agreement of 1966 has effectively been $75,000
per passenger on a substantial part of international airline
travel, including all transportation involving the United
States.
In the MIA the signatory carriers agree to implement the
IIA by incorporating various provisions in their contracts of
carriage and tariffs where necessary. Under the most
important provision the carrier agrees that it will not
invoke the limitation of liability in Article 22 (1) of the
Convention as to any claim of recoverable compensatory
damages under Article 17. In order words, each carrier waives
the Warsaw limit.
The second provision each carrier agrees to in MIA is to
not avail itself of any defense under Article 20 (1) of the
Convention with respect to claims up to 100,000 SDRs. Article
20 (1), sometimes called the exculpatory clause, provides
that the carrier can exculpate itself from liability
completely if it can show it took all necessary measures to
avoid the damage. Thus, in agreeing to waive this defense up
to 100,000 SDRs each carrier has subjected itself to absolute
or strict liability up to that amount. In not making this
waiver above 100,000 SDRs the carrier has accepted the burden
of proving the taking of all necessary measures. Proving that
is a virtual impossibility in all cases except terrorist
cases, other situations entirely caused by a third party, and
possibly clear air turbulence cases.
Thus while this provision may not have substantial
practical significance the principle of the carrier having
the burden of proof regarding its absence of fault has become
a precedent which may affect the formulation of a new
convention or protocol.
Rights of Recourse, Including Indemnity and Contribution
The MIA goes on to provide that the signatory airline
``reserves all defenses available under the Convention to any
such claim.'' And it adds that ``With respect to third
parties, the carrier also reserves all rights of recourse . .
. including rights of contribution and indemnity.''
It may be well and good for the signatory airlines to
reserve all rights of recourse against a manufacturer, for
example, in a contract between itself and other airline, but
there is real doubt that this can have any legal and binding
effect without the consent of such third party and possibly
without the consent of the passenger himself. The fact that
this reservation of rights is a creature of private contract,
rather than law or legal judgments, is, in my opinion, a
fatal flaw in the system in terms of legal enforceability.
An impleaded third party, such as a manufacturer, or its
insurer, will be free to claim that the airline, or its
insurer, which made a payment pursuant to IIA, was a
``volunteer'', and was a collateral source whose payment may
not be created to damages owed the passenger or his estate by
the manufacturer.
It is my understanding that George Tompkins and Lorne Clark
have requested the manufacturers to provide a statement of
policy that they will not assert a ``volunteer'' defense in
the event that an airline settles a claim in excess of the
applicable limit of liability in any suit for contribution or
indemnity, and it is my further understanding that the
request is being favorably considered.
However, in my opinion, the problem can't definitively be
cured by consent of the third party defendant. Under this
system the airline can offer to pay unlimited damages, and it
may try to insist that a passenger or passenger's family
execute a general release, releasing third parties, but the
passenger does not have to accept that. The passenger can sue
the airline under the IIA and MIA, as a third party
beneficiary, and can maintain a wholly independent action
against a negligent manufacturer or air traffic control
facility. In other words there is the theoretical
possibility here of double recoveries. The passenger can
recover on his case against the airline, which is based on
the IIA and MIA contracts and then take the position, on
his case against the manufacturer, or other third party,
that the airline was collateral source for which the
manufacturer may not get a credit. For the recourse
provisions of
[[Page S11061]]
IIA, MIA, and IPA to be meaningful the payment of damages
by the airline would have to be the result of law and not
private contract.
This problem of recourse runs through all three of these
agreements, and, in my opinion, can be solved only by a new
convention or protocol, establishing a legal basis for the
payment of unlimited damages by an airline.
That is not the only problem presented by IIA agreements.
Domicile, ``Subject To Applicable Law''
IIA states as an objective ``that recoverable compensatory
damages may be determined and awarded by reference to the law
of the domicile of the passenger.''
When one examines the MIA, however, it provides that at the
option of the carrier it may include a provision in its
conditions of carriage and tariffs that, ``subject to
applicable law'', recoverable compensatory damages . . . may
be determined by reference to the law of the domicile or
permanent residence of the passenger.''
In the IPA there is no option provision. It simply states
that ``subject to applicable law, recoverable compensatory
damages * * * may be determined by reference to the law of
the domicile or permanent residence of the passenger.''
Thus the intent of the drafters, as shown by the language
of the three agreements, would appear to have been to apply
the law of the passenger's domicile or permanent residence.
In actual fact, however, there was no such uniform agreement
to apply the law of domicile, and the language can best be
explained by the political, or negotiating constraints if any
agreement at all was to be achieved.
Briefly stated, the United States carriers, with the
prodding of the U.S. Department of Transportation, insisted
on language applying the law of domicile. To European
carriers, however, their law did not apply law of domicile.
Generally there courts would apply the law of the place of
the accident or the law of the forum. Thus in the face of the
language in IIA, pointing to law of domicile, they insisted
on language making it clear that would only be at the option
of the airline.
The U.S. carriers, on the other hand, all signed the IPA,
and thereby accepted law of the passenger's domicile on cases
against them.
The agreements may not do that, however, because the
language, ``subject to applicable law'' may dictate some
other law!
Let's assume, for example, a case brought under the IPA in
which the deceased passenger was domiciled in Pennsylvania,
which has relatively liberal death damages law. Let's say the
airplane crashed into the high seas. When the case is brought
in the United States will the Death on the High Seas Act be
applied, or the law of Pennsylvania?
In the first instance the decision will be up to the
airline, or, more likely, the airline's insurer. Let's
suppose the airline, faithful to the text of the IIA
agreements, makes an offer under Pennsylvania law standards.
But let's assume the passenger, or the lawyer for the estate
of the passenger, rejects the offer as being insufficient.
The matter would then go to court. In court the passenger (or
the estate's) lawyer, asserts that the law of Pennsylvania
will govern damages, pointing to the IIA Agreements.
What position does the airline take in court? And what
position will the court take? After all the Death on the High
Seas Act is a United States statute.
As for the carrier, one might hope it would feel morally
bound to accept the law of the domicile of the passenger, but
history suggests that economics will determine its position,
or, more precisely, its insurer's position.
Let's take a similar case under the IPA, where the airplane
has crashed over land, as in the Pan Am 103 Lockerbie
bombing. Let's assume the action is started in Florida, as,
indeed, a significant number of Lockerbie cases were. In
those Lockerbie cases the court, stating that it was applying
Florida choice of law rules, applied the law of the place of
the accident, Scotland.
What will the situation be under the Intercarrier
Agreements including the IPA? Will the carrier, and the
court, enforce the law of the passenger's domicile, or will
they apply the law of the place of accident?
Again, history suggests that the parties are likely to be
motivated by economics.
In short, the words, ``subject to applicable law'' are
likely to introduce conflict and uncertainty in many cases
brought under the IPA. I would respectfully suggest that
those words be removed from the IPA Agreement, and that it
simply provide that the law of the passenger's domicile will
be applied.
Successive Carriage
Another problem arises by virtue of Article 30 (1) and (2)
of the Warsaw Convention which deal with the liability of
successive carriers. Article 30 (2) states: ``(2) . . . the
passenger or his representative can take action only against
the carrier who performed the transportation during which the
accident or delay occurred. . . .''
It may turn out, of course, that all carriers sign and
adhere to the Intercarrier Agreement, and they will,
therefore, all be subject to it. But, given the nature of the
world, it is probable that some, or even many, will not sign
on. If the second, or third, successive carrier is the one on
which the accident happens, it may choose not to waive the
limit, despite the claim by the plaintiff that the successive
carrier is bound by the original contract of carriage. Then
where are we?
I understand that carriers now signing the IIA Agreements
are limiting their waivers of the limit to accidents
occurring on their own part of the carriage, so passengers
may still be subject to the limit in other cases.
But the injured passenger, or his family if he has been
killed, will, nevertheless, argue that the carrier which
issued the ticket must be liable for damages without
limitation, and that he or his estate is an authorized third
party beneficiary. An action will be brought against that
carrier for unlimited damages. The Warsaw Convention, which
was supposed to have simplified liability rules will be the
very cause of the dispute in these cases.
If, indeed, waivers of the limit do not apply to successive
carriers, then the IATA agreements will be something of a
cruel hoax in successive carriage situations and may well
inspire intense adverse passenger group reactions.
The 5th Jurisdiction
Article 28 of the Warsaw Convention permits suit to be
brought in any one of four places; the place of incorporation
of the carrier, its principal place of business, the place
where the contract of carriage was made (i.e. where the
ticket was sold), and, finally, the place of ultimate
destination of the passenger. Notably absent is the place of
the passenger's domicile. In most cases the place of the
passenger's domicile will coincide with one of the places
suit can be brought anyway, so there is no problem. But
there are occasional cases where an American, for example,
will buy a ticket while on a trip, away from home.
American damages standards are considerably higher than
those of other countries, generally, and in that rare case
the American passenger, or his family, will be denied the
higher American standards.
It is generally recognized that the place of domicile is
the place which has the greatest interest in the question of
damages, and the denial of domicile law is very troubling to
parties and governments alike.
The United States Government, and particularly the
Department of Transportation and Department of State, have
taken the position that any new regime of law, in
international airline transportation, must provide for suits
in ``the 5th Jurisdiction'', i.e., the place of the
passenger's domicile. Non American carriers have resisted the
proposal, for reasons that baffle me. It seems to me that
from the airline's standpoint the point is not worth fighting
about, if the carriers can get an otherwise favorable system.
There are simply not enough such cases to provide a real
stumbling block.
The IATA intercarrier agreements do not and cannot solve
the problem, and they cannot because of the Warsaw
Convention's proscription against changing jurisdictional
rules (See Article 32). The United States has gone along with
the intercarrier agreements because of the predominant
interest in getting the airlines to abandon the limits,
notwithstanding their failure to adopt the 5th jurisdiction,
but the point remains one of contention for any new
convention or protocol.
Fault or No Fault?
Finally, important lawyers in the United States DOT seem to
be locked into an anti-fault mode of thinking on any new
system, whether it be based on the intercarrier agreements or
a new convention or protocol. This probably goes back to
attitudes developed in 1966 at the time of the Montreal
Agreement, when State Department lawyers obtained from the
airlines and IATA an agreement to accept absolute liability
up to a limit of $75,000 as a tradeoff for perpetuation of
the Warsaw Convention and its limited liability regime. The
DOT has viewed absolute, no-fault, liability as being in the
passenger interest. Most passenger groups, however, as well
as lawyer groups which customarily represent passengers, view
the fault system as a fundamental necessity which is
critically important from the safety perspective for the
protection of passengers as well as society in general. They
point to numerous contributions to airline safety made by
tort cases and their examination into both negligence and
accident causation.
The contribution of the tort system to aviation safety is
well recognized, also, by aviation insurers and their
lawyers. Sean Gates, a London solicitor and senior partner of
Beaumont and Son, one of the leading firms representing
aviation underwriters, has expressed himself as strongly
opposed to absolute liability for international airlines,
both because he is opposed to abandonment of the fault
system, and because he doesn't see why airlines alone in our
society should be held to be guarantors of safety. Anthony
Mednuik, one of the world's leading underwriters, and
presently Managing Director of the British Aviation Insurance
Group, has similarly expressed himself as strongly opposed to
abandoning the fault system. He did so most recently at a
large meeting in Amelia Island, Florida, in October, of the
Aircraft Builders Council, which consists of both aviation
manufacturers and underwriters, and again at an aviation
insurance and law symposium in London in November, sponsored
by Lloyds of London Press. And George N. Tompkins, Jr. one of
the top airline defense lawyers in the United States has
recommended the following language to the ICAO Secretariat
Study Group, of which he is a member: ``No limit of liability
on the recoverable damages mentioned in A above if the
passenger/claimant proves negligence or
[[Page S11062]]
fault on the part of the carrier. This would not impose an
undue burden on the passenger/claimant and would serve to
preserve the ``Warsaw Convention'' as a fault based system.''
This difference of opinion on the fault system is not a
factor affecting the intercarrier agreements since they are
already in place and they have been based on strict liability
up to 100,000 SDRs and presumptive liability above that
amount if the carrier fails to show its complete absence of
fault, but it will be a significant factor in the effort to
achieve a new convention or protocol.
Thus we have a situation where the IATA agreements, however
noble their purpose and laudable their execution, provide an
insufficient basis for a satisfactory future regime in
international air law, and where there is considerable doubt
that, on a political level, the problems and differences of
fault/no fault, limitations of venue, rights of recourse, and
successive carriage, can be overcome, so as to create a
reasonable new convention or protocol. The prospect exists
that there will be no satisfactory new convention or
protocol, and that the intercarrier agreements will fail to
provide a workable system. It is uncertain where such an
outcome would lead, but one virtual certainty would be
complete abandonment of the Warsaw Convention, and the
airlines would not be happy about that.
So, where do we go from here?
The Need to Work Together
Everyone involved, from IATA and airlines, to the United
States Government and other governments, to passengers'
groups and plaintiffs' lawyers, has something to lose from a
failure to come up with a satisfactory new liability regime.
The obvious answer to the problem is the formulation of a new
and widely acceptable convention or protocol which will have
the force of law to handle not only airline liability, but
rights of recourse, successive carriage, choice of law and
adequate venue.
The Need for Ratifiability
At the excellent Lloyds of London Press Aviation Insurance
and Law Symposium in November, in London, Don Horn, Associate
General Counsel for International Affairs of the United
States Department of Transportation, pointed out the truism
that the first requirement for any new convention (or
protocol) is that it must be ratifiable.
I respectfully suggest that that is a good place to start
in our consideration of the new convention or protocol.
Whatever we come up with must be ratifiable. It must be
ratifiable by the United States, and it must be approval by
the international airlines.
Excellent preparatory work has been done by the ICAO Study
Group and the ICAO Legal Committee. The pattern of a splendid
convention or protocol is now clear, and available. In
general it has been set forth by the Study Group. It will
provide for a two tier liability system, with absolute
liability up to the threshold number of 100,000 Special
Drawing Rights, and negligence liability above that. It must
provide for the addition of the ``fifth jurisdiction.'' In
other words, passenger's domicile must be added to the other
available venues, place of incorporation of the carrier,
place of its principal place of business, and place where the
ticket was bought.
For those international airlines and insurers who are
reluctant to accept the fifth jurisdiction I would point out
three things. First, there is an element of compromise
inherent in the United States Government acceptance of the
two tier concept on fault. The position of the U.S. has been
to favor absolute liability across the board. This is not in
the airline interest, and in my humble opinion, not in the
public interest, but that, as I understand it, has been its
position. Acceptance of the two tier system by the United
States will have another laudable effect. It will insure
support of the new convention or protocol in the United
States on the part of passengers', consumers, and lawyers'
groups who believe that the fault system is one of society's
basic protections. Were the United States to hold out for
absolute liability across the board, and were that part of
the new Convention or protocol I would expect intense
opposition to the new convention or protocol in the United
States.
The second point is that in terms of cost to airlines or
insurers the fifth jurisdiction is deminimus. There are,
simply, very few cases where an American domiciliary buys a
ticket in another country and cannot sue in the United States
under one of the four presently permissible jurisdictions. I
have been practicing aviation law for forty five years, and I
have probably handled as many airline cases as any other
lawyer in the world, and I can only remember one case
involving an American passenger where I was unable to sue in
the United States because of Article 28.
Finally, the overall benefit to airlines, and all others,
of having a viable new convention or protocol would be
enormous. It would be foolish to jeopardize its chances
because of opposition to the fifth jurisdiction.
Burden of Proof on the Second Tier
As indicated above, the new convention proposed by the
Legal Committee of ICAO prescribes a two tier system of
liability. There is absolute liability for damage up to
100,000 SDRs and negligence liability above that. In an
exercise of indecision, however, the drafters set forth three
alternative provisions on who shoulders the burden of proving
negligence. The concept of placing the burden on the
defendant airline of showing its freedom from fault grows
from Article 20 of the Convention which provides that to
exculpate itself the airline must show that it took all
necessary measures to avoid the damage. Generally speaking,
however, it is the plaintiff who has the burden of proving
negligence.
The concept of providing three alternative suggestions is
not sound and will lead to confusion and uncertainty.
Obviously, it is to the plaintiff's advantage to place the
burden on the defendant, but I don't consider it a make or
break matter. Again, it is more important to get the broad
outlines of the convention established than to fight about
each of its terms.
Convention or Protocol?
Similary, the question of whether this should be a brand
new convention or a protocol to the Warsaw Convention is less
important than the substance of the new instrument. People I
respect, including Lorne Clark and George Tompkins, who know
far more than I do about the politics of enacting a new
convention, tell me that it will be much easier to enact a
protocol, so, for that reason alone I favor it.
I would urge a note of caution, however. The Warsaw
Convention has a very bad history and reputation with many
people, including me and my clients. For many of them it has
ruined their lives. I would eliminate all extolatory language
praising the Warsaw Convention, such as the introductory
language in the ICAO Legal Committee draft, regardless
whether it is new convention or protocol.
Simpler and Shorter is better
I would suggest that all references to cargo be removed. It
is not necessary to include it in the new instrument. In
fact, it may be completely resolved by the ratification of
Montreal Protocol 4. The simpler and shorter the new
instrument is, the better.
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