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INTRODUCTION
The Warsaw Convention is an international convention which regulates the liability incurred by international carriage of persons, luggage or goods performed by an aircraft. Originally it was signed in 1929 in Warsaw. It was amended in the year 1955 at The Hague and in 1975 in Montreal. The United States courts have held that for certain purposes, the Warsaw Convention is a different instrument from the Warsaw Convention that was Amended by the Hague Protocol. There are 5 chapters incorporated within the Warsaw convention. They are as follows:
1) Chapter I - Definitions 2) Chapter II - Documents of Carriage; Luggage and Passenger

Ticket
3) Chapter III - Liability of the Carrier 4) Chapter IV - Provisions Relating to Combined Carriage 5) Chapter V - General and Final Provisions

The Convention was originally drafted in French language and the original copy of ratification has been deposited in the archives of the Ministry for Foreign Affairs of Poland. In particular, the Warsaw Convention was signed for the following purposes. It mandates carriers to issue passenger tickets. According to the provisions it requires the carriers to issue baggage checks for checked luggage. It creates a limitation period of 2 years within which a claim must be brought (Article 29); and further, it also limits a carrier's liability to at most 250,000 Francs or 16,600 special drawing rights (SDR) for personal injury, 17 SDR per kilogram for checked luggage and cargo, or $20USD per kilogram for non-signatories of the

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amended Montreal Protocols and 5,000 Francs or 332 SDR for the hand luggage of a traveler. The sums limiting liability were originally given in gold francs. It was defined in terms of a particular quantity of gold by article 22 paragraph 5 of the convention. These sums were amended by the Montreal Additional Protocol No. 2 to substitute an expression given in terms of SDR's. These sums are valid in the absence of a differing agreement (on a higher sum) with the carrier. Agreements on lower sums are null and void. On June 1, 2009, the exchange rate was 1.00 SDR = 1.088 EUR or 1.00 SDR = 1.548 USD. A court may also award a claiming party's costs, unless the carrier made an offer within 6 months of the loss (or at least 6 months before the beginning of any legal proceedings) which the claiming party has failed to beat. The Montreal Convention, signed in 1999, replaced the Warsaw Convention system.

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APPLICABILITY OF WARSAW CONVENTION

The original text of Warsaw Convention may conveniently be examined first in terms of its applicability, and we note immediately, in Article 1, that it applies only when the transportation is international (although many nations apply its rules also to transportation within their borders). Another notable element is that the convention is applicable to all international carriage of persons, baggage or goods for reward. Note that by its nature the Warsaw Convention only applies to carriers; a law suit against e.g., an aircraft inspection service is not subject to the rules of the convention.1 Gratuitous carriage by aircraft is also covered under by the convention, but only when performed by an air transport company. Other gratuitous carriage is not included. The reason why an exception has been made for carriage by an air transport company is that free tickets are usually issued with the intention of obtaining something in return, e.g., for propaganda purposes. Rules concerning gratuitous carriage, when it occurs, are normally to be found in domestic law. What exactly is to be regarded as international carriage? What does the term international transportation really mean? Article 1 provides the answer: for the purposes of the Convention the expression International Carriage means any transportation in which, according to the agreement made by the parties, the point of departure and the point of destination, whether or not an interruption in the
1

Compania Panamana de Aviacion v. Grestein, 3rd D.C. App. Florida, 1994; 645 S.2d 55.

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carriage or a transshipment occurs, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party if there is agreed stopping place within the territory of another state, even if that state is not a High Contracting Party. The applicability of the convention is not affected by incidental occurrences like an emergency landing. In the case of Grein v. Imperial Airways2 agreed stopping place was defined as a place where according to the contract the machine by which the contract is to be performed will stop in the course of performing the contractual carriage, whatever the purpose of the descent may be and whatever rights the passenger may have to break his journey at that place It should be noted with regard to agreed stopping places that it was deemed sufficient for them to be referred to, for instance, in the timetables of the carrier, even if they had not been specifically mentioned in the documents.3 In the same case it was rulled that an intermediate place at which the carriage may be broken is not regarded as a place of destination. The international character of the contract is determined by the intention of the parties as expressed in that contract. There are three exceptions to the applicability of the convention, namely: 1) The convention does not apply to international carriage by air performed by way of experimental trial by air navigation enterprises with a view to the establishment of regular air services on a certain route, as for instance when airline companies were planning to fly over the North Pole (Art. 34);
2

Grein v. Imperial Airways, Court of Appeal (England), 13 July 1936; Avi, Vol. 1, p. 622; [1936] USAvR,211 3 Rotterdamsche ank v. BOAC (and Aden Airways), High Court of Justive, Queens Bench Division (United Kingdom); [1953] USAvR 163; IATA law reporter.

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2) The convention does not apply to carriage performed in extraordinary circumstances outside the normal scope of an air carriers business, as for instance when an accident occurred to an aircraft bringing a new engine to a ship that had developed engine while out fishing for sardines (Art. 34);4 3) The convention does not apply to carriage performed under the terms of any international postal convention (Art. 2, para. 2)

Unlike other conventions, the Warsaw Convention mentions explicitly that its terms do apply to carriage performed by the state. It is however, possible to make a reservation excluding this type of carriage. Only the USA has made use of this option. The question whether or not the Warsaw Convention has been suspended as a consequence of the Second World War is a matter of great practical importance, as is illustrated by an accident neat Frankfurt in 1952 involving a KLM aero plane flying from Johannesburg (South Africa) to Amsterdam (The NetherLands) via Kano (Nigeria), Rome (Italy) and Frankfurt (Federal Republic of Germany). Analyzing the case in terms of applicability of the Warsaw Convention one must carefully bear in mind the following facts: the union of South Africa had not acceded to the convention at the time of accident, so it did not apply to the passengers who had boarded the aero plane in Johannesburg. The Netherlands and Nigeria had both ratified the convention (the UK had done so on behalf of Nigeria), and both states had reconfirmed the validity of the convention with the German Federal Republic. Accordingly, It did apply to passengers who had boarded Kano with Frankfurt or Amsterdam as their destination.
4

Vanderburg v. French Sardine Company and Souby, Callifornia Superior Court, 29 October 1953; [1953] USAvR 423.

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Italy had ratified, but not recommended with the Federal Republic of Germany, so the Convention applied to passengers Eome-Amsterdam, but not to passengers Rome-Frankfurt. An additional problem in the relationship between Nigeria and the German Federal Republic was that, although both states had ratified the Convention, a state of war formally still existed between them, no peace treaty having been concluded yet. The question arising here was whether the Warsaw Convention, a non-political agreement, had been cancelled due to the state of war, or just suspended, and in the latter case, whether it had become operative again after hostilities had ended. A different case is created by colonies gaining independence. The former mother state may have been a High Contracting Party to the Warsaw Convention, but what is the situation as regards the former colony? The US Eleventh Circuit Court of Appeals had occasion to address this matter in 2001 in a case involving Jamaica. Although Jamaica, on gaining independence, had not formally adopted the convention, it did agree to assume all treaty obligations and rights thereto on treaties entered into by the United Kingdom. This created a presumption that Jamaica intended to remain a High Contracting Party. Furthermore Jamaica never took steps to formally denounce the Convention but participated in negotiations of the Guatemala Protocol, etc. Also Jamaica had been relied on a defense based on the Convention in another lawsuit some years before. Thus the court concluded that the actions by Jamaica were more consistent with intent to adopt, rather than reject, the obligations and privileges of the Warsaw Conventions.5

Blake v. American Airlines, Court of appeals (11th circuit), 2001 WL 264978

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In an American court case6 the judge ruled that the question whether a convention is reconcilable with the political needs of the security of a state had to be decided from case to case. On the one hand there is support for those who argue that the Warsaw Convention has fully remained in force between the nations at war, and indeed the theory that non-political agreements had only been suspended by the hostilities has been amply vindicated in post-war international practice. Against this theory it may be argued that after the war several states exchanged notes about receiving the Convention, but this may also be interpreted as a move to reconfirm the validity of the Convention. Seen in the light, no law making effect can be attributed to such exchanges of notes. The fact that they have also taken place with neutral states like Sweden, Switzerland and Spain seems to favor the later interpretation. No similar exchange of notes has taken place in respect of the 1933 convention of Rome concerning precautionary attachment. Is a signatory state which has not ratified a party to convention? In a decision by the House of Lords in the case of Philippson v. Imperial Airways7 this question has been answered in affirmative. The convention does not cover the entire relationship between the carrier and the passengers or the consignors of goods. Supplementary rules are to be found in IATA Conditions based on the Convention.

6 7

Techt v. Hughes, 229 NY 222, 128 NE 185 Philippson v. Imperial Airways, House of lords (Great Britain), [1939] USAvR 63

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To what types of aircraft will the Warsaw Convention be applicable?

As the convention itself provides no clue we shall have to rely on the general definition found in annexes of the Chicago Convention, a definition which in turn had its origin in the Paris Convention, namely: any machine that can derive support in the atmosphere from the reactions of the air. A very wide definition indeed, since it comprises also helicopters, gliders, balloons, etc. the fact that ICAO has altered this definition by adding the words other than the reactions against the earths surface is a clear sign of the inapplicability of the convention to carriage by hovercraft. Another question requiring an answer is: who precisely is a passenger? a passenger within the meaning of the convention is a person who is carried by aircraft by virtue of a contract of carriage. Is an airplane employee to be regarded as a passenger within the meaning of the convention? Opinions are divided on this point. On the one hand there are those asserting that the convention applies exclusively to the legal relationship between the carrier and the passenger who has a contract of carriage with him. There is nothing in the convention on obligations with regard to persons who have no contract of carriage with the carrier. Other writers, however, hold the view that an employee is not only bound by the terms of his contract, but also by those of the contract of carriage. It is interesting to compare this matter with Rome convention of 1952, which may not be applicable when there is a contract of employment.

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CONCLUSION

Summarizing up the present situation we cannot but conclude that it presents many unsatisfactory aspects: different limits may apply to passengers travelling on the same aircraft but to different destinations; when travelling to or from a state which is not a party to the Warsaw Convention they may receive full compensation for damage, as the limits of Warsaw Convention are not applicable; a passenger boarding a plane at Rome from Amsterdam may possibly receive the same compensation as a passenger in the same plane bound for USA, due to the Malta Agreement ; but if the carrier states that he has taken all the necessary measures the passenger for Amsterdam must prove that the carrier was at fault, whereas the passenger flying to USA is not required to assume this burden of proof; it is not at all unusual for transport to take place between two states, one of which has adhered to the Hague Protocol, whereas the other has only ratified the Warsaw Convention. The application of the two conventions may then cause complications. Most of these problems relate to the fact that the unification of rules provided by the Warsaw Convention for the carriage of passengers, baggage and goods has been adversely affected by the multitude of amendments. Such adverse affects were heightened by the divergent inter-presentation of some of its terms in both the Continental and the Anglo-Saxon legal systems, as well as in the judicial rulings in various countries. Meanwhile, notwithstanding, all complications, the old convention is still functioning on a worldwide basis. Its rules operate for the benefit of the passengers and carriers alike. The carriers are fully aware of their responsibilities, against which insurance can be arranged; the passengers know what to expect in case of injury or damage. If they are not satisfied with the limits for the compensation they can take out their own additional insurance policy. The situation even becomes more complicated now

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that there is a new Montreal Convention. Article 55 of the Montreal Convention stating that it will prevail, as between ratifying states parties, over any rules which apply to international carriage by air of the Warsaw Convention, the Hague Protocol and the Guadalajara Convention, tries to overcome the problem of the two treaties being applicable next to each other. Nevertheless an area of conflicting rules will still be possible where only one ratifying state is involved in the international carriage.

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REFERENCES
BOOKS REFERRED1. Professor Dr. I.H.Ph. Diederiks, AN INTRODUCTION TO AIR LAW, Kluwer Law International, The Netherlands, 8th Revised Edition, 2006. ACTS REFERRED 1. The Warsaw Convention 2. The Montreal convention 3. The Hague protocol