Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - DOES THE WARSAW CONVENTION GOVERN NON-CONTRACTUAL LIABILITY?
Neil R. McGilchrist
M.A. (Oxon.), Solicitor.
One issue which not infrequently provokes judicial debate in litigation arising out of carriage by air governed by the Warsaw Convention is the precise manner and extent to which the treaty overrides substantive domestic law.
Does the Convention merely impose presumptions and conditions to be incorporated into and to qualify available domestic remedies? If so, does it impact upon all domestic causes of action? Alternatively does the instrument create a new statutory remedy? If yes, is this remedy to become the exclusive basis for a liability claim brought by a passenger or cargo owner against a carrier where the circumstances are subject to the Convention regime?
The questions can be of importance in a number of contexts but in none more so than when the argument is advanced that claims founded in contract are subject to the rules prescribing limited liability but claims founded in tort are not.
A cursory reading of the minutes of the Diplomatic Conference held at Warsaw in 1929 leaves little doubt as to the desired objective of the legislators even if it does not afford a direct answer to the foregoing questions. Clearly uniformity was the central goal. As the United Kingdom delegate Sir Alfred Dennis declared:
“In the Convention we propose to replace a system of free contract by a system of law, of regulations, of by-laws”.
This theme was noted by the U.S. Second Circuit of Appeals in Benjamins v. British European Airways (1978) U.S. AVR 87) when the majority per Lumbard, C.J., observed:
“What is made quite clear is the extent to which the delegates were concerned with creating a uniform law to govern air crashes, with absolutely no reference to any national law (except for the questions of standing to sue for wrongful death, effects of contributory negligence and procedural matters … The Convention laid down rules that were to be universally applicable)”.
Whether the effect of the treaty was assumed to be the creation of a new exclusive statutory cause of action or the establishment of presumptions and conditions qualifying all local law remedies, the treaty draftsmen would have regarded it as
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