cargo liability “state of the union” dan soffin 18 april 2015 montreal, quebec eighth annual...

Cargo Liability“State of the Union”

Dan Soffin

18 April 2015Montreal, Quebec

Eighth Annual McGill Conference on International Aviation Liability & Insurance

State of the Union for Cargo Liability

Topics

• From Warsaw - Hague to MAP4 - Montreal 99

• The Legal Framework

• Jurisdictional Challenges and Global Uniformity

8th Annual McGill Conference on International Aviation Liability & Insurance

From Warsaw - Hague to MAP4 - Montreal 99

Air Waybill Issuance

• W air waybill• WH air waybill• MAP4 air waybill + “any other

means which would preserve a record”

• M99 air waybill + “any other means which would preserve

a record”



Air Waybill Particulars• W Art 8

17 requirements (!)

• WH Art 8departure, destination, stopping

place, convention notice

• MAP4 Art 8 (AWB and Cargo Receipt)departure, destination, stopping

place, weight

• M99 Art 5 (AWB or Cargo Receipt)departure, destination, stopping

place, weight8th Annual McGill Conference on International Aviation Liability & Insurance


Non Compliance• W no liability limitation (AWB or

particulars)• WH no liability limitation (AWB or

particulars)• MAP4 no effect on liability limitation • M99 no effect on liability limitation

NB: contract of carriage still valid and otherwise governed by the Convention



Destruction, loss, or damage (all Conventions)

• liability for damage sustained • there must be an “occurrence” or “event” during the

“carriage by air”• the occurrence or event must cause the damage• unless proven otherwise, damage is presumed to

have occurred during carriage by air

NB:

•M99 Art 18(4) If without the consent of the shipper… Other modes of carriage deemed to be carriage by air

•where does “misdelivery” fall?



Delay (all Conventions)

• carrier liable for damage occasioned by delay



Defences

• W - “all necessary measures” or impossibility- negligent pilotage, handling of aircraft

or navigation contributory negligence applies to

delay and damage

• WH - “all necessary measures” or impossibility- contributory negligence- inherent defect, quality or vice

applies to delay and damage



Defences Cont’d•MAP4 Delay: “all necessary measures” or impossibility

Damage: a) inherent defect, quality or viceb) defective packing…

c) act of war or armed conflictd) act of public authority…

•M99 Delay: “all measures reasonably required” or impossibility

Damage:a) inherent defect, quality or viceb) defective packing…c) act of war or armed conflictd) act of public authority…

Both Conventions allow contributory negligence defences for delay and damage



Limitation• W 250 FF/kg• WH 250 FF/kg• MAP4 17 SDR/kg (now 19 SDR)• M99 17 SDR/kg (now 19 SDR)

Unlimited Liability• W wilful misconduct• WH intent or recklessness and with knowledge• MAP4 unbreakable limit/absolute limitation• M99 unbreakable limit/absolute limitation



Written Notice of Complaint

• W Damage 7 daysDelay 14 days

• WH Damage 14 daysDelay 21 days

• MAP4 Damage 14 daysDelay 21 days

• M99 Damage 14 daysDelay 21 days

•notices in writing•person entitled to delivery•no notice means no action

NB: is a Shipper’s notice valid?



Extinguishment

• All conventions provide for extinguishment after 2 years from

• date of arrival at destination• date on which aircraft ought to have arrived• date on which carriage stopped

NB: difference between “extinguishment” and “limitation”



The Current Picture

•widely adopted

•exclusivity widely established in powerhouse jurisdictions

•ready for e-freight ( when will e-freight be ready ? )

•clear monetary unit with unlimited liability no longer an issue

• preservation of essential defences and principles and now unbreakable limits of liability

• remains unclear on “misdelivery”• remains unclear on whether Shippers’ written notices

of complaint satisfy Arts 26/31• litigation generally declining


The Legal Framework

• Warsaw – Hague – MAP4 – Montreal 99

• other conventions / modes of carriage

• IATA Resolution 600b: The Air Waybill

• IATA Recommended Practice 1601: Conditions of Carriage For Cargo

• extra-contractual Terms & Conditions / Obligations

• laws of the local jurisdiction


The Legal Framework

IATA Resolution 600b: The Air Waybill

•“…goods are accepted in apparent good order and condition…”

•“goods may be carried by any other means including road, unless contrary instructions are given hereon by the Shipper…”

•incorporates conventions conditions of carriage, regulations, tariffs, limitations on liability

•provides a contractual term to limit liability to 19 SDRs/kg

•incorporates requirement of written notice of complaint

•Incorporates provisions for extinguishment

NB: various versions of 600b abound


The Legal Framework

IATA Recommend Practice 1601: Conditions of Carriage

• incorporates Convention applicability and provisions

• incorporates provisions of IATA Resolution 600b

• provides additional contractual terms which, if not in conflict with Convention provisions, should be upheld

• reinforces limitation of liability, written notice, extinguishment, etc…


The Legal Framework

Extra-contractual Terms & Conditions/Obligations•shipper’s additional “instructions”

•conflict with “no modification” terms (600b and 1601)

•does cargo acceptance and carriage matter?

Laws of the Local Jurisdiction •does the convention apply?•will the convention be applied?•will it be treated as an exclusive cause of action?


Jurisdictional Challenges and Global Uniformity

Adoption

•M99 is most globally adopted of the conventions•still, less than 60% of ICAO contacting states adhere•does domestic enabling legislation keep up with ratification or accession?



Exclusivity

• will a state abide by convention provisions?

• will domestic law be used as an adjunct?

• does convention compete with domestic law?

• do heavyweight jurisdictions carry weight?



Cultural Compatibility

• do local values and principles mesh with convention principles?

• limitation of liability • extinguishment• damages



Tribunal and Judicial Attitudes• awareness, understanding of convention

principles and intended outcomes• interpretive skills in wide ranging

jurisdictions• awareness, synthesis of international

judgments• awareness, understanding of the aviation

industry• commitment to principles of unification• local plaintiff v. foreign carrier• is there a remedy for every wrong?



Some Examples

• European Union

• India

• Brazil


THANK YOU


Eighth Annual McGill Conference on International Aviation Liability & Insurance

cargo liability “state of the union” dan soffin 18 april 2015 montreal, quebec eighth annual...

Documents

conventions liability

annual mcgill conference

map4 montreal

warsaw hague

liability limitation

cargo liability state

cargo liability topics

impossibility damage