Cargo Liability “State of the Union” Dan Soffin 18 April 2015 Montreal, Quebec Eighth Annual Mc. Gill Conference on International Aviation Liability & Insurance
State of the Union for Cargo Liability Topics • From Warsaw - Hague to MAP 4 - Montreal 99 • The Legal Framework • Jurisdictional Challenges and Global Uniformity 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP 4 - Montreal 99 Air Waybill Issuance • W air waybill • WH air waybill • MAP 4 air waybill + “any other means which would preserve a record” • M 99 air waybill + “any other means which would preserve a record” 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP 4 - Montreal 99 Air Waybill Particulars • W Art 8 17 requirements (!) • WH Art 8 departure, destination, stopping place, convention notice • MAP 4 Art 8 (AWB and Cargo Receipt) departure, destination, stopping place, weight • M 99 weight Art 5 (AWB or Cargo Receipt) departure, destination, stopping place, 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP 4 - Montreal 99 Non Compliance • W no liability limitation (AWB or particulars) • WH no liability limitation (AWB or particulars) • MAP 4 no effect on liability limitation • M 99 no effect on liability limitation NB: contract of carriage still valid and otherwise governed by the Convention 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP 4 - Montreal 99 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: • M 99 Art 18(4) If without the consent of the shipper… Other modes of carriage deemed to be carriage by air • where does “misdelivery” fall? 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP 4 - Montreal 99 Delay (all Conventions) • carrier liable for damage occasioned by delay 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP 4 - Montreal 99 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 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP 4 - Montreal 99 Defences Cont’d • MAP 4 Delay: “all necessary measures” or impossibility Damage: a) inherent defect, quality or vice b) defective packing… c) act of war or armed conflict d) act of public authority… • M 99 Delay: “all measures reasonably required” or impossibility Damage: a) inherent defect, quality or vice b) defective packing… c) act of war or armed conflict d) act of public authority… Both Conventions allow contributory negligence defences for delay and damage 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP 4 - Montreal 99 Limitation • • W WH MAP 4 M 99 250 FF/kg 17 SDR/kg (now 19 SDR) Unlimited Liability • • W WH MAP 4 M 99 wilful misconduct intent or recklessness and with knowledge unbreakable limit/absolute limitation 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP 4 - Montreal 99 Written Notice of Complaint • W Damage 7 days Delay 14 days • WH Damage 14 days Delay 21 days • MAP 4 Damage 14 days 21 days Delay • M 99 Damage 14 days 21 days Delay • notices in writing • person entitled to delivery • no notice means no action NB: is a Shipper’s notice valid? 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP 4 - Montreal 99 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” 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
From Warsaw - Hague to MAP 4 - Montreal 99 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 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
The Legal Framework • Warsaw – Hague – MAP 4 – Montreal 99 • other conventions / modes of carriage • IATA Resolution 600 b: The Air Waybill • IATA Recommended Practice 1601: Conditions of Carriage For Cargo • extra-contractual Terms & Conditions / Obligations • laws of the local jurisdiction 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
The Legal Framework IATA Resolution 600 b: 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 600 b abound 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
The Legal Framework IATA Recommend Practice 1601: Conditions of Carriage • incorporates Convention applicability and provisions • incorporates provisions of IATA Resolution 600 b • provides additional contractual terms which, if not in conflict with Convention provisions, should be upheld • reinforces limitation of liability, written notice, extinguishment, etc… 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
The Legal Framework Extra-contractual Terms & Conditions/Obligations • shipper’s additional “instructions” • conflict with “no modification” terms (600 b 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? 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
Jurisdictional Challenges and Global Uniformity Adoption • M 99 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? 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
Jurisdictional Challenges and Global Uniformity 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? 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
Jurisdictional Challenges and Global Uniformity Cultural Compatibility • do local values and principles mesh with convention principles? • limitation of liability • extinguishment • damages 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
Jurisdictional Challenges and Global Uniformity 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? 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
Jurisdictional Challenges and Global Uniformity Some Examples • European Union • India • Brazil 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
THANK YOU 8 th Annual Mc. Gill Conference on International Aviation Liability & Insurance
Eighth Annual Mc. Gill Conference on International Aviation Liability & Insurance
Скачать презентацию Cargo Liability State of the Union Dan Soffin
e153e0111f9cc52b23689e5bd6ac70ac.ppt