One of the more vexing academic questions posed by the Warsaw Convention is whether the liability regime enshrined within it creates rights of action arising in contract or in tort. Does the Convention merely import certain specific provisions into the contracts of carriage between the international air carrier and its passengers or does it, as an international treaty adopted by States into their municipal law, impose immutable rules for the determination of the air carrier’s liability for certain tortious acts?

The question will generally be of theoretical rather than practical consequence since the Convention will still govern the rights and liabilities arising out of loss, damage, or injury caused during the carriage. However, a recent United States decision (Causey and Ryder v. Pan American World Airways Inc, citation not yet available) illustrates how in certain circumstances the question can be of decisive importance.

On Apr. 22, 1974, a Pan American Boeing 707 flying from Hong Kong to Bali crashed into a mountain while making a night approach to land. All 107 occupants of the aircraft perished. The heirs of some of the passengers contended before the U.S. District Court for the Central District of California that the Warsaw Convention was irrelevant to the action—and the defendant could not therefore limit its liability to $75,000 per claim—despite the fact that the carriage in question was clearly international in character.

The plaintiffs argued, firstly, that the wrongful death laws of California were applicable to the actions and under California law the survivors of a deceased possessed an independant cause of action arising out of the death—a cause of action which was not, in other words, derivative in the sense that the heirs were exercising rights belonging to the deceased. Furthermore, it was settled California law that the rights of survivors in pursuing their independent cause of action could not be adversely affected by the terms of any contract made by the deceased before his death. Accordingly, the plaintiffs asserted, since the Warsaw Convention limitations arose out of a contract between the carrier and the deceased, they could not bind the survivors.

The obvious response of the defence to the ingenious argument advanced was that, regardless of the normal position obtaining under the California wrongful death statutes, the Warsaw Convention as a Federal treaty was binding upon all U.S. courts and governed any set of factual circumstances falling within the Convention definition of international carriage.

The District Court, per Williams, D.J., took great pains to find that the limitations available to air carriers under the Convention were part of a mechanism that could only be invoked by a carrier exercising rights stemming from a contract it had entered. Thus, if in a given case ordinary contractual requirements of offer and acceptance had not been fulfilled no binding contract existed and the limitations did