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U.S. Aviation Policy: The Montreal Convention and The Hague Protocol
John R. Byerly,
Deputy Assistant Secretary for Transportation Affairs
Testimony Before the Senate Foreign Relations Committee
Washington, DC
June 17, 2003Mr. Chairman and Members of the Committee: I welcome the opportunity to present, together with the Department of Transportation, the views of the Administration regarding the Convention for the Unification of Certain Rules for International Carriage by Air, Done at Montreal 28 May 1999 (“the Montreal Convention” or the “Convention”) and the Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on October 12, 1929, Done at The Hague September 28, 1955 (“The Hague Protocol” or “the Protocol”).
Introduction
We urge the Senate to seize an historic opportunity to give its advice and consent to ratification of these two important treaties. For almost half a century, the United States has sought to replace the outmoded airline accident liability system established by the Warsaw Convention of 1929. The Montreal Convention would do just that and can make a real difference in the lives of American citizens by abolishing unreasonable liability limits and allowing most American accident victims and their families to seek redress in U.S. courts against foreign airlines. The Convention would modernize and clarify other aspects of the international airline accident liability system, including the rules applicable to code-share flights and to liability for the carriage of cargo. Pending wide adherence to the Montreal Convention by other countries, U.S. ratification of The Hague Protocol would provide important interim modernization of the cargo rules, which recent litigation has shown to be needed.
With the advice and consent of the Senate, the United States can be among the initial group of countries ratifying the Montreal Convention. Once we have acted, we will undertake a broad global effort to urge additional countries to join us, with the goal of achieving universal adherence.
The Administration seeks the advice and consent of the Senate to ratification of the Montreal Convention subject to a declaration to be made on behalf of the United States that the Montreal Convention shall not apply to international carriage by air performed and operated directly by the United States for non-commercial purposes in respect to its functions and duties as a sovereign State. Such a declaration would be consistent with the declaration made by the United States under the Convention for the Unification of Certain Rules Relating to International Transportation by Air, Done at Warsaw 12 October 1929 (the "Warsaw Convention") and is specifically permitted by the terms of the Montreal Convention.
The Montreal Convention
The Montreal Convention is a remarkable accomplishment for U.S. aviation policy and U.S. diplomacy. The U.S. delegation at the diplomatic conference that negotiated this agreement in May of 1999 achieved all of America’s core objectives. The new Convention has the potential to eliminate the patchwork of airline liability regimes around the world and replace it with a new, uniform set of rules appropriate for today’s airlines and today’s passengers and shippers.
Indeed, the 1999 Montreal Convention is the culmination of almost a half century of efforts by the United States to increase, and later to eliminate, the unconscionably low limits of liability applicable under the 1929 Warsaw Convention when passengers are killed or injured in international air carrier accidents. The Convention contains all of the key provisions sought by the United States at the outset of the negotiations. At the same time, since major portions of the Convention are based on, and generally follow the language of, the 1929 Warsaw Convention and a related protocol to which the United States is already a party (Montreal Protocol No. 4), prior judicial interpretations under those treaties are expected to have continuing validity.
Benefits Under the Montreal Convention
The significant new benefits of the Montreal Convention include:
- The new Convention eliminates the meager and arbitrary limits of liability applicable under the Warsaw Convention when passengers are killed or injured in international air carrier accidents. These limits applied in all cases, except where the harm was due to the carrier’s willful misconduct.
- Under the Convention, in almost every case, American survivors of international aircraft accidents and the families of American accident victims will have access to U.S. courts in seeking damages for the losses they suffered.
- The Convention requires air carriers to make payments of up to approximately $141,000 of proven damages on behalf of accident victims, without regard to whether the airline was negligent.
- An escalation clause provides that monetary limits and thresholds that survive in the Convention will be adjusted for inflation.
- Provisions on code sharing and similar arrangements clarify that when the airline operating a flight is not the airline from which the transportation was purchased, a passenger may recover from either the airline operating the aircraft at the time of the accident or the airline whose code is carried on the passenger’s ticket.
- The Convention furthers U.S. efforts to ensure that U.S. air cargo carriers and shippers can take advantage of technological innovations now available to facilitate and expedite the processing of international air cargo.
- The Convention simplifies litigation and promotes fairness through the passenger benefits described above, including eliminating all arbitrary limits on compensatory damages for passenger death and injury claims, among others, and by barring non-compensatory damages in all cases, consistent with existing law; and by establishing, in clear language, its exclusivity in the area of claims for damages arising in the international transportation of passengers, baggage and cargo.
- While the Convention provides essential improvements upon the Warsaw Convention in many respects to improve the rights of passengers, it also preserves established law relating to other aspects of the Warsaw Convention that were acceptable, to avoid unnecessary litigation. For example, the Convention preserves the status quo relative to legal actions against airline employees (Articles 30, 43). Consistent with existing law in the United States, the Montreal Convention extends to a carrier’s employees acting within the scope of their employment all of the “conditions and limits of liability” available to the carrier under the Convention--referring to the monetary limits set out in Articles 21 and 22 of the Convention and the conditions under which those monetary limits may be exceeded.
The Montreal Convention has been signed by 71 countries, and has been ratified by 29 countries to date -- only 1 short of the 30 required to bring the Convention into effect. In addition, given the importance of the United States and its airlines in international aviation, many countries are thought to be awaiting U.S. ratification before taking action themselves.
History of Efforts To Modernize the Warsaw Convention
To date, in the area of claims for damages arising in the international transportation of passengers, baggage and cargo, the United States has ratified only the Warsaw Convention and the Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Done at Warsaw 12 October 1929 as Amended by the Protocol Done at The Hague 28 September 1955, Done at Montreal 25 September 1975 ("Montreal Protocol No. 4").
Under Montreal Protocol No. 4, which entered into force for the United States on March 4, 1999, the Warsaw Convention’s rules relating to international air cargo operations were fully modernized. However, only 51 states are parties to Montreal Protocol No. 4. Moreover, the Warsaw Convention’s unamended provisions relating to airline liability for death or injury to passengers are grossly inadequate. There were several attempts to modernize those provisions through international negotiations, but those efforts were unsuccessful.
- In the early 1950s, multilateral negotiations achieved only a doubling of the original Warsaw Convention’s per passenger liability limit (to what is now approximately $20,000), as codified in The Hague Protocol of 1955. The United States did not ratify The Hague Protocol.
- Efforts to amend the Warsaw Convention in 1975 focused on cargo issues, including the negotiation of Montreal Protocol No. 4, which modernized Warsaw Convention provisions relevant to the air-cargo industry. The United States ratified Montreal Protocol No. 4 in 1998. In the area of airline liability for passenger claims, provisions developed in a protocol done at Guatemala City in 1971 were incorporated into Montreal Protocol No. 3 (1975), but neither instrument was ratified by the United States or entered into force.
- In the absence of progress on airline liability for passenger deaths or injuries at the intergovernmental level, the major carriers of the world stepped into the breach, first in 1966 and again in 1996 with the encouragement of the Civil Aeronautics Board and Department of Transportation, respectively. An inter-carrier agreement in 1966 raised liability limits for airlines serving the United States to $75,000 per passenger. A 1996 inter-carrier agreement provided for airlines to waive liability limits with respect to claims for passenger injury or death. Although these private agreements provided a reasonable interim fix, the inter-carrier agreements are not an adequate substitute for international agreements, particularly in light of their narrow focus and their voluntary nature.
In response to the inadequacy of the Warsaw Convention liability limits, a number of States have adopted domestic laws or regulations, further complicating the maze of rules comprising the international liability regime. The Montreal Convention has the potential to end the patchwork of airline liability regulation. U.S. consumers of international air transportation will benefit from its modernized liability provisions, and U.S. airlines will benefit from a uniform international liability regime and a leveling of the playing field in relation to airlines that now benefit from more limited liability regimes.
The 1955 Hague Protocol
The President has also submitted for Senate advice and consent to ratification the 1955 Hague Protocol to the Warsaw Convention. U.S. ratification of The Hague Protocol would clarify for the cargo industry the rules on cargo documentation that apply to the carriage of cargo between the United States and 86 countries that are parties to that instrument, but not to Montreal Protocol No. 4. It would secure for U.S. carriers application of The Hague Protocol provisions in such cases, which significantly streamline the antiquated cargo documentation requirements of the Warsaw Convention.
Although The Hague Protocol also doubles the Warsaw Convention passenger liability limit to what is now approximately $20,000, the inter-carrier agreements of 1966 and 1996 have, as a practical matter, superseded this meager recovery limit.
A recent U.S. court decision (Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301 (2d Cir. 2000), cert. denied, 533 U.S. 928 (2001)) held that, where the United States had ratified the Warsaw Convention but had not ratified The Hague Protocol, and the Republic of Korea had ratified The Hague Protocol but not the Warsaw Convention, Korea’s adherence to The Hague Protocol did not make it a party to the unamended Warsaw Convention and there were no treaty relations between the United States and Korea under either instrument.
Although the Chubb decision did not address Montreal Protocol No. 4, which entered into force in 1999 for the United States, it focused industry attention on the question of whether the United States, by reason of its adherence to Montreal Protocol No. 4, automatically became a party to The Hague Protocol as such and therefore entered into treaty relations under The Hague Protocol with other countries party to that instrument (but not to Montreal Protocol No. 4).
If the courts were to conclude that Montreal Protocol No. 4 does not create treaty relations under The Hague Protocol, the United States’ treaty relations with the 79 countries that are parties to both the Warsaw Convention and The Hague Protocol, but not to Montreal Protocol No. 4, would be based on the Warsaw Convention, unamended by any later protocol, at least until such countries become parties to the new Montreal Convention. (Nine of these countries have ratified the Montreal Convention so far.) Further, in that situation, the United States would have no treaty relations whatsoever under the Warsaw Convention system with Korea and six other countries that are parties only to The Hague Protocol. (None of these seven countries has ratified the Montreal Convention to date.)
This is an unsatisfactory result. The 1929 Warsaw Convention contains outdated rules in the area of cargo documentation, requiring much specific information on the air waybill that has no commercial significance today. These requirements: make international air cargo transactions time consuming and inefficient, driving up their costs; inhibit the free flow of international air commerce; and serve as a barrier to electronic information exchanges. Under the Warsaw Convention, U.S. cargo carriers must comply with these outmoded documentation rules or risk deprivation by courts of the Convention’s benefits.
Ratification of The Hague Protocol will eliminate any ambiguity and secure for the U.S. industry The Hague Protocol’s more modern cargo documentation rules, which are critical to the efficient movement of air cargo, in relations with the 86 countries party to that instrument (but not to Montreal Protocol No. 4), pending the entry into force and widespread ratification of the Montreal Convention.
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