《LIABILITY FOR DAMAGE TO LUGGAGE IN INTERNATIONAL AIR TRANSPORT》

INTRODUCTION1

The contract of carriage of passengers and luggage1

Circumstances of contracting in(air)transport law1

International conditions of carriage2

Obligation of the carrier2

CHAPTER ONE:BEFORE THE CONFERENCE OF WARSAW5

Ⅰ.Literature and case law Different rules for air transport?5

Protection for air carriers6

Exemption accepted by writers6

Limits to exemption set by the judge7

Conclusion8

Ⅱ.Air carriers' practice before the Warsaw Convention IATA's conditions of carriage(1927)Luggage9

Refusal to carry9

Exemption from liability10

Handluggage10

Free allowance and excess luggage10

Claims11

CHAPTER TWO:THE WARSAW CONVENTION OF 1929 AND DEVELOPMENTS UNTIL 1940 Introduction13

Applicability of the Convention13

Luggage ticket(Warsaw Convention Article 4)14

Definition of luggage15

Case law about the definition of luggage16

Transferability of luggage17

Classification as 'handluggage'.Case law17

The conditions for carriage of passengers of IATA 1933 Introduction18

'Hand' luggage18

Limits to the definition of luggage19

Transport of luggage19

Luggage ticket20

Passenger's responsibility21

Packing of luggage21

Delivery of luggage21

General rules for the carriage of passengers and luggage22

Changes in the General conditions in 1938?23

Notice of rules applicable to carriage23

Remarks on the changes23

Air carriers' practice in the United States of America until 194024

The Warsaw Convention:liability rules25

Literature26

Author's opinion27

Uncollected luggage27

Liability for delay28

Comments of the writers28

Importance of interpretation29

Delay of luggage in(French)railway transport29

IATA's Conditions about delay30

Criticism of the ICC on delay in air traffic practice30

Author's opinion on delay31

No liability of the air carrier;article 2031

Risk and burden of proof on carrier32

Negligence in the handling of the aircraft;art.20 para.232

American practice towards negligence of carrier32

Contributory negligence in respect of luggage;art.21 of the Convention33

Conditions of carriage of carrier and contributory negligence34

American practice34

Limits of liability;article 2235

Classification:registered or 'hand' luggage?35

Author's opinion on the classification36

Monetary unit and the limits of liability36

Is limitation of liability necessary?37

Parties' agreement:declaration of value37

Refusal of the declaration of value.IATA Conditions38

Partial damage and declaration of value39

Liability for unregistered luggage39

Comments in continental literature40

American literature40

Carrier's contracts and liability limits after 193741

Limitation clauses on the luggage check41

IATA's Conditions referring to art.2242

Convention;art.2342

Developments in case law on limitation:exoneration of carrier's liability:France42

England44

Germany45

Developments in the USA45

IATA Conditions and art.2347

Willful misconduct;art.25 of the Convention47

Receipt of the luggage;art.26 of the Convention48

Claims for compensation for damage48

Claims for damage to hand luggage49

IATA Conditions49

Air transport practice in the United States50

Successive carriers;art.30 of the Convention51

IATA conditions and art.3051

The practice in the United States52

CHAPTER THREE:THE HAGUE PROTOCOL 195555

Introduction55

Preparatory works55

International air transport;art.1 Warsaw Convention56

Documents for travelling;art.3 and 4 of the Warsaw Convention56

Sypnosis of criticism of the Warsaw Convention of 192957

Results of the Hague Conference for art.457

United States' case law on art.3;notice of conditions of transport58

Contents of the transport document.No indication of the weight of the luggage?59

Definition of luggage and registered luggage('bagages' and "bagages enregistres")59

Luggage check60

Case law:no luggage check handed out(railway transport USA)61

Iata Conditions61

Definition of luggage;Iata Conditions 194662

Luggage check;Iata Conditions 1946 and 195563

Free allowance;Iata Conditions 1946 and 195564

Responsibility of the passenger;Iata Conditions 1946 and 195565

Packing of the luggage;Iata Conditions 1946 and 195565

Delivery of luggage;Iata Conditions 1946 and 195566

Claims for damage to luggage;Iata Conditions 1946 and 195567

Criticism on the new Iata Conditions(of 1946)67

Iata Conditions lead to more uniformity68

Liability for delay;Warsaw Convention article 19,case law and developments 1940-195568

Case law France69

Germany70

The writers on delay71

The Legal subcommittee of ICAO and the Hague Conference on liability for delay72

The Iata Conditions on delay72

Warsaw Convention art.2073

Case law relating to art.20(no luggage transport)74

Contributory negligence;art.21 of the Warsaw Convention75

Limits of liability set by the Warsaw convention art.2275

Declaration of value;art.22 para.276

New limits77

Conclusion on art.2278

Case law connected to art.22 of the Convention78

Case law referring to the special declaration of value,as laid down in art.22 para.2 of the Convention79

Iatalimitation of liability;not according to the Warsaw Convention79

Iata Conditions on partial damage80

No liability for unregistered luggage;Iata Conditions81

Iata Conditions and art.23 of the Warsaw Convention82

Exclusion of goods from carriage;violation of the Warsaw Convention?82

Art.25 of the Warsaw Convention;willful misconduct83

Procedure for claiming compensation for damage to luggage;art.26 of the Warsaw Convention83

Presenting notice of claim;Iata Conditions(draft of 1946)83

Iata Conditions of 1955 on presentation of claim84

Warsaw Convention art.30 and 3384

System chosen in the Hague for the changing of the Warsaw Convention85

Summary85

CHAPTER FOUR:DEVELOPMENTS IN AIR TRANSPORT PRACTICE AND CASE LAW 1955-197186

Introduction86

Developments in the air transport industry itself86

Protection against monopoly necessary?86

General rule of the law of contract:due notice of the conditions of contract and carriage87

'Fine print' clauses88

Author's opinion on case law and airline practice referring to print to 'fine print' clauses91

Reference clauses in documents for carriage;Iata's new Conditions of 197191

Case law in connection with the documents of carriage92

No indication of weight on luggage check93

Consequences of the rule established by the Hague Protocol 94 Iata Conditions 1971 and the indications of weight on the document for the carriage of luggage94

Iata Conditions of carriage 1971;definitions94

Iata Conditions 1971 on luggage95

Author's opinion of Iata's definition of luggage96

Author's opinion of Iata's definition of luggage check96

Case law on transport of luggage97

Luggage forwarded on air freight letter98

Case law on separated carriage of luggage99

Obligation for the carrier to accept luggage in the category it is offered to him by the passenger?100

Literature on unregistered luggage('hand' luggage)100

An odd case:Rifahi vs Olympic Airways101

Iata Conditions of 1971 on non-Warsaw Carriage102

Delay102

Case law on delay103

The case Houdin vs Panair do Brasil104

Comments on Houdin vs Panair do Brasil105

Confirmation of Houdin vs Panair do Brasil106

Summary and observation of a practice rule for delay106

Iata's Conditions of carriage;no compensation for consequential loss or damage and art.23 of the Convention107

Necessary measures;art.20 of the Convention108

Contributory negligence;case law108

Contributory negligence and Iata Conditions 1971109

Declaration of value;art.22 of the Convention110

Declaration of value;practice in the Netherlands110

Case law on the declaration of value111

Liability of carrier for unregistered luggage('hand' luggage)112

Carrier's liability for unregistered luggage a dead letter?114

How to classify registered and unregistered luggage?114

Iata Conditions 1971 on limits of liability115

Iata Conditions 1971 and art.23 of the Convention115

Art.26 of the Convention in Iata's general Conditions of carriage of 1971 para.1 of art.26115

Art.26 para.2 and 3;case law and art.29 of the Convention in Iata's general Conditions 1971116

Summary and conclusion117

CHAPTER FIVE:GUATEMALA PROTOCOL 1971,MONTREAL PROTOCOLS 1975;CASE LAW FROM 1971 AND DEVELOPMENTS IN AIR TRANSPORT PRACTICE FROM 1971119

Introduction119

Influence of air transport practice on text of the Convention119

No notice of applicability of the rules of the Warsaw Convention on the transport document120

Change in the system of liability120

The Warsaw Convention as revised by the Guatemala Protocol;art.17 absolute liability121

No distinction of categories of luggage any longer122

Art.18 of the Warsaw Convention122

Delay and liability therefor;art.19122

Art.21,contributory negligence123

Limits of liability123

No declaration of value for luggage124

Unbreakability of the limits;art.24,para.2124

New forum added125

When will the Guatemala Protocol come into force?125

Remarks on the Guatemala Protocol125

The Additional Protocols of 1975126

The Montreal Protocol(nr 4)of 1975128

Article 18 of the Convention128

Article 20 of the Convention129

Article 21 of the Convention129

Article 22 of the Convention130

Article 24 of the Convention131

Article 25 and 25A of the Convention132

The coming into force of Montreal Protocol nr 4,1975132

The Conference of the Legal Committee of ICAO in 1976;the consolidated Warsaw Convention132

Case law on notice of the conditions of contract of carriage133

Case law;no indication of weight on the luggage check134

Classification of luggage;'hand' luggage or registered luggage?136

An(extra)ordinary case,good faith in bringing claims139

Liability for loss caused by delay of the luggage140

Limitation or exclusion of carrier's liability because of contributory negligence on the part of the passenger145

Loss of contents of the luggage146

Liability limitation;conversion of the monetary unit;the Franc Poincare147

Willful misconduct148

Limits to the possibilities of claiming compensation149

Author's opinion on partial damage in art.26,para.2151

Forum non conveniens152

Miscellaneous152

New developments in airlines' practice;consequences in the legal area?154

Another way of handling the luggage with holiday charters;change in liability of the carrier?155

The two-pieces concept156

Introduction of supersonic aircraft;could it mean introduction of the liability for delay as well?156

Conclusion157

ADDENDUM159

Iata's new General Conditions of Carriage(Passengers)of 1986 Introduction159

Article Ⅰ:definitions159

Article Ⅱ:applicability160

Article Ⅷ:refusal of and limitation on carriage160

Article Ⅸ:baggage160

Article Ⅸ:right to refuse carriage161

right of search161

checked baggage162

free baggage allowance and excess baggage163

excess value declaration and charge163

unchecked baggage163

collection and delivery of baggage164

animals164

Article Ⅻ:conduct aboard aircraft164

Article ⅩⅥ:liability for damage165

Post scriptum166

Annex169

Subject Index213