ICAO's revision to the Warsaw Liability System

    Prepared by the ICC commission on : Commission on Customs and Trade Facilitation
    Publication date : 05/05/1999

    Since 1992, ICC has been involved in commenting on the attempts to update the Warsaw Liability System which governs the availability of damages to accident victims in international air transport.

    ICC wholly supports the achievement of a modern and satisfactory liability regime. In line with this objective, and in keeping with its top-level consultative status in ICAO, ICC is pleased to share its views on what it considers to be the main points of the ICAO Draft Convention for the Unification of Certain Rules for International Carriage by Air (hereafter also referred to as "ICAO Draft Convention").

    The views expressed in this paper should be regarded as reflecting an interim position, since the final text of the ICAO Draft Convention has not yet been adopted. A diplomatic conference for the purpose of discussing the Draft ICAO Convention will be held in May 1999. ICC intends to participate actively in the diplomatic conference and may advocate more specific points, as suggested by ICC national committees, at appropriate points in the deliberation.

    Summary of interim position Subject to the following remarks, ICC endorses the ICAO Draft Convention for the Unification of Certain Rules for International Carriage by Air, because: ICAO attempts to achieve global uniformity; the creation of unlimited liability is a realistic and logical step; the more prominent position of the passenger based on consumer rights has been recognized; a more coherent system, applying also, for instance, to both the contractual and the actual carrier, has been drawn up; the explicit exclusion of punitive damages is welcome; the non-mandatory provisions on advance payments to be made to passengers, or persons entitled to claim on their behalf, are supported, if such claims are realistic.

    On some points, such as the requirement of a written notice, the option of a fifth jurisdiction, the legal basis for claims exceeding 100.000 SDRs (fault to be proved by the claimant or presumed fault on the part of the carrier), the need for a definition of delay, the desirability of the regulation of the phenomenon of overbooking in a world-wide convention, as well as liability in the context of code sharing and franchising arrangements, ICC recommends and encourages further study.

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