Scope of Application of Montreal and Warsaw Conventions

• Author: John D. Holding, John S. Hoff
• Pages: 9-28

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Chapter 2: Scope of Application of

Montreal and Warsaw Conventions

A. INTERNATIONAL AIR CARRIAGE DEFINED

1) Def‌inition

The Conventions contain two dist inct def‌initions of international air

carriage as carriage in which:

the place of departure and t he place of destination are within ◆

the territories of two party states, or

the place of departure and t he place of destination are within ◆

the territory of a single par ty state and there is an agreed stop-

ping place in t he territory of another state whether or not that

state is a party.1

Carriage under one of the above def‌initions will provide subject

matter jurisdiction to the Federal Court.

2) Application of Def‌inition

a) General

The Montreal and Warsaw/Hague Conventions apply to “all interna-

tional transportation persons, baggage, or goods performed by air-

1 Montreal Convention, Art. 1, p ara. 2; Warsaw Convention, Art. 1(2), amended

by Hague Protocol, Ar t. 1(a).

[ 10 ] US MANUAL OF INTERNATIONAL AIR CARRIAGE

craft for reward.” They apply equally to gratuitous carriage performed

by an “air transport undertaking.”2

The Conventions apply to the liability of air carriers with whom

the plaintiff has contracted for carriage and in some circumstances to

their employees and agents (see Chapter 8), but not to manufacturers3

or other potential defendants such as airports, air traff‌ic controllers,

manufacturers or operators of other aircraft involved in accidents.

The burden of proof that the Convention applies is ordinarily

on the air carr ier.4 However, when the defendant moves to dismiss

for lack of subject matter jurisdiction under Rules of Civil Procedure

12(b)(1), the plaintiff then has the burden of proving that the conven-

tion applies.5

b) Agreed Stopping Place

An “agreed stopping place” is a place where the aircraft is scheduled

to stop according to the ticket, for any reason and regardless of wheth-

er the passenger is entitled to break the trip t here.6 The length of the

stop is irrelevant.7

c) Places of Departure and Destination

The “place of destination” is the place of f‌inal or ultimate destination,

and not necessarily the destination of the particular interim f‌light leg

during which an accident occurred. The “agreement” referred to in

this article is presumably the passenger’s air carrier-issued ticket, or

the air waybill.

Every contract of carriage has one place of departure and one place

of destination, and in the case of a round-trip they are one and the

same place in the sense of being within the same party state. As stated

by the Second Circuit in In Re Alleged Food Poisoning,8 “We hold that

2 Montreal Convention, Art. 1, p ara.1; Warsaw Convention, Art. 1(1).

3 In Re Par is Air Crash, 399 F.Supp. 732 (C.D. Cal. 1975).

4 Stratis v. Eastern Air Lin es, Inc., 682 F.2d 406, 411-413 (2d. Cir. 1982).

5 Madiso n-Hughes v. Shalala, 80 F.3d. 1121,1130 (6th Cir. 1996).

6 Air Crash at Malaga, Spain on September 13 , 1982, CCH 18 Avi. 17,591, 577

F.Supp. 1013 (E.D.N.Y 1984).

7 Grein v. Imperial Air ways Ltd., [1937] 1 K.B. 50, 80 (Eng. C.A.).

8 770 F.2d 3 (2d Cir. 1985).