Chapter § 2A.06 SANCTIONS OVERRIDING LIMITATIONS ON AIR CARRIER LIABILITY
| Jurisdiction | United States |
| Publication year | 2021 |
§ 2A.06 Sanctions Overriding Limitations on Air Carrier Liability
In three separate instances, the Warsaw Convention provides that unless the air carrier has acted within specified guidelines, the carrier "shall not be entitled to avail himself of those provisions of this convention which exclude or limit his liability."477 The sanction of unlimited liability on the part of the air carrier applies if (1) "the carrier accepts a passenger without a passenger ticket having been delivered;"478 (2) the carrier "accepts baggage without a baggage check having been delivered," or the baggage ticket does not contain (a) the number of the passenger ticket, (b) the number and weight of the pieces of baggage, or (c) a statement that the air transportation is subject to the rules relating to liability established by the Warsaw Convention;479 or (3) the carrier or its agents acted with a willful misconduct or in such a manner that the conduct amounted to willful misconduct.480
The Montreal Convention provides:
"Non-compliance with the provisions of the foregoing paragraphs shall not affect the existence or the validity of the contract of carriage." 481
"The foregoing provisions . . . shall not apply if it is proved that the damage resulted from an act or omission of the carrier . . . done with intent to cause damage or recklessly and with knowledge that damage would probably result." 482
[1] Delivery of Passenger Ticket
The Warsaw Convention provides:
"(1) For the transportation of passengers the carrier must deliver a passenger ticket which shall contain the following particulars:
"(a) The place and date of issue;
"(b) The place of departure and of destination;
"(c) The agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right the alteration shall not have the effect of depriving the transportation of its international character;
"(d) The name and address of the carrier or carriers;
"(e) A statement that the transportation is subject to the rules relating to liability established by the convention.
"(2) The absence, irregularity, or loss of the passenger ticket shall not affect the existence or the validity of the contract of transportation, which shall none the less be subject to the rules of this convention. Nevertheless, if the carrier accepts a passenger without a passenger ticket having been delivered he shall not be entitled to avail himself of those provisions of this convention which exclude or limit liability." 483
In addition, the Montreal Agreement requires a specific statement in ten point type to appear on the passenger ticket, or on a piece of paper with the ticket, or on the ticket jacket or envelope, which, among other things, advises the passenger of the applicability of the Warsaw Convention and the limitation on damages under the Convention.484
Even though the Warsaw Convention states that a carrier "must" deliver a passenger ticket containing specified items, the sanction specifies that the loss of the liability limitation is effective only "if the carrier accepts a passenger without a passenger ticket having been delivered."485 Overruling some earlier cases which held that the sanction applies for carrier failure to adhere to delivering a ticket containing specified information in a specified format,486 the United States Supreme Court has opted for a literal reading of the sanction provision.487 According to the Court, nothing in the Warsaw Convention imposes a sanction for failure to deliver an "adequate" ticket, and the loss of a carrier's limitation on liability applies only when the carrier accepts a passenger without a ticket.488 The air carrier has the burden of proving delivery of a passenger ticket and a baggage check.489
The Montreal Convention provides:
that "an individual or collective document of carriage shall be delivered containing (a) an indication of the places of departure and destination, (b) [under appropriate circumstances] an indication of at least one such stopping place . . . Any other means which preserves [this] information may be substituted for the delivery of the [this document] . . . [but] the carrier shall offer to deliver to the passenger a written statement of the information so preserved. . . . The carrier shall deliver to the passenger a baggage identification tag for each piece of checked baggage. . . . The passenger shall be given written notice to the effect that where this Convention is applicable it governs and may limit the liability of carriers in respect of death or injury and for destruction or loss of, or damage to, baggage and for delay. Non- compliance . . . shall not affect the existence or the validity of the contract of carriage." 490 .
[2] Delivery of Baggage Check
The Warsaw Convention provides:
"(1) For the transportation of baggage, other than small personal objects of which the passenger takes charge himself, the carrier must deliver a baggage check.
"(2) The baggage check shall be made out in duplicate, one part for the passenger and the other part for the carrier.
"(3) The baggage check shall contain the following particulars:
"(a) The place and date of issue;
"(b) The place of departure and of destination;
"(c) The name and address of the carrier of carriers;
"(d) The number of the passenger ticket;
"(e) A statement that delivery of the baggage will be made to the bearer of the baggage check;
"(f) The number and weight of the packages;
"(g) The amount of the value declared in accordance with article 22(2);
"(h) A statement that the transportation is subject to the rules relating to liability established by this convention.
"(4) The absence, irregularity, or loss of the baggage check shall not affect the existence or the validity of the contract of transportation which shall none the less be subject to the rules of this convention. Nevertheless, if the carrier accepts baggage without a baggage check having been delivered, or if the baggage check does not contain the particulars set out at (d), (f), and (h) above, the carrier shall not be entitled to avail himself of those provisions of the convention which exclude or limit his liability."
Typically, the "baggage check" is combined with the passenger ticket and, as such, what the passenger receives is a "Ticket and Baggage Check." The baggage check is not to be confused with baggage stubs which are tied to each bag and used for the purpose of identifying checked baggage at the destination point.491
According to the Warsaw Convention, if the carrier neglects to deliver a baggage check, or if the baggage check does not contain information as to (a) the number of the passenger ticket, (b) the number and weight of the pieces of baggage, or (c) a statement that the air transportation is subject to the rules relating to liability established by the Warsaw Convention, then the carrier can lose its liability limitation.492
Despite the clarity of this provision, the courts have not always interpreted it the same way. There is a fair amount of uniformity in holding that the liability limitation is lost for carrier neglect in delivering a baggage check,493 but in other respects, the courts are divided on how stringently the sanction is to be imposed. For example, although the Warsaw Convention specifies that the liability limitation is to be lost for failure to note the number and weight of packages on the baggage check or agreed stopping places on a cargo waybill,494 some courts have taken the position that failure to adhere to this requirement is merely a technical violation, insufficient to cause the carrier to lose its limitation on liability.495 The air carrier has the burden of proving delivery of a baggage check.496
The Montreal Convention provides:
"The carrier shall deliver to the passenger a baggage identification tag for each piece of checked baggage." 497
[3] Willful Misconduct
The Warsaw Convention provides:
"(1) The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his willful misconduct or by such default on his part as, in accordance with the law of the court to which the case is submitted, is considered to be the equivalent to willful misconduct.
"(2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused under the same circumstances by any agent of the carrier acting within the scope of his employment." 498
This provision opens the carrier to unlimited liability if the plaintiff can prove that action or inaction on the part of the carrier or its agents which caused or contributed to the plaintiff's injuries were of such a nature as to constitute willful misconduct or gross negligence as those concepts are defined by reference to local law.499 Courts have been divided in finding willful misconduct in international air transport cases involving physical injuries,500 lost or damaged baggage or cargo501 and flight delays.502 In addition, the courts have held that willful misconduct is not a separate cause of action under the Warsaw Convention.503
The Montreal Convention provides:
"The foregoing provisions . . . shall not apply if it is proved that the damage resulted from an act or omission of the carrier . . . done with intent to cause damage or recklessly and with knowledge that damage would probably result." 504
[4] Scope of the Sanctions Under the Warsaw Convention
The previously discussed sanctions under the Warsaw Convention which disallow carriers from limiting or excluding liability for specified actions or inactions raises the question of which provisions of the Warsaw Convention a carrier subject to the sanction may no longer rely on to limit or exclude liability. In general, the Warsaw Convention exonerates the carrier from liability if it has "taken all necessary measures to avoid the damage"...
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