Is uniformity still a myth? – Aviation Law

The technology and utility of the aviation industry are to transport a person from one place to another and most of the time from one country to another. There are two major theories, a historical perspective, which are pivotal in the International Aviation Law; firstly, freedom of air, secondly theory of sovereignty. The war period reflected reliance on the latter theory, which attracted most of the issues.

Aviation Law doesn’t have a specific nature in order to be classified, it has branches extended to public international laws, privacy laws, finance laws and etc. The aspect of Private International has brought in many questions as to the matter of governing law. A classic example –

“A Frenchman domiciled in Denmark had purchased a passenger ticket for a flight from Geneva to London at a travel agency in Stockholm; he used a Dutch aircraft which crashed on Belgian territory; his widow intends to bring action for damages. Against whom? Before which court? Which law will be applicable – Swedish, French, Danish, Swiss, Dutch, Belgian or English?”

Therefore, the attempt to unification has been started from almost a century ago, after the first World War. When the attempted convention endeavored to achieve maximum unification of the air law, i.e. The Warsaw Convention.

Unification of the Aviation Law –

The first limb of the method of unification is the first convention, signed at Warsaw in 1929, the “Convention for the Unification of Certain Rules relating to the International carriage by Air”. The two most fanciful consideration, which was generally owned by the state, was that the protection of carriage and goods were mandatory and safety of passengers and goods are pivotal. This convention standardised the requirement of documents to be provided by the carrier. Along with it, in case of injury to either goods or person, the presumption of negligence was imposed on the air carrier, which means the claimant need not prove the fault of the air-carrier.

This method of unification followed by the additional protocols which tackled the transition of technology which reflected lacunas in the convention. Firstly, The Hague Protocol signed in 1955, this doubled the prescribed monetary cap for liability that was imposed on air carriers for default. Further, those members who were a member of the Protocol and not to the convention were made to adhere to the provisions of the Warsaw Convention, 1929. The main function of this convention was to bring more nations under the umbrella of the unified aviation law. Secondly, Guatemala Protocol, 1971, it amended the Warsaw-Hague Convention, by increasing the liability capital because of the increasing incidents of air accidents. Thirdly, the Montreal Additional Protocol I, II and III were signed, in order to alter the liability which was earlier imposed in terms of gold. Lastly, the IV additional protocol entered in 1975, came into existence and was the last card to complete, what is known as the Warsaw-System Conventions.

The Second limb to this unification is the Montreal Convention 1999, again known as the “Convention for the Unification of International carriage by Air”. This is the most comprehensive text in the International Aviation Law, as it consolidated the Warsaw-system conventions in one single text. This also included all the Montreal Protocols including the Montreal Protocol IV and the Guatemala Protocol, and the Guadalajara Convention which made ‘actual’ carrier liable. This convention has currently, 120 members and the most effective convention of all time.

The evil of choice of law rules has been done away with to some extent. The attempt of unification has weaved the fabric of International Civil Aviation. The UNIDROIT as an organisation are trying to unify all the private laws of different into one accepted law. The myth of uniformity is turning in to reality, at least in the field of International Aviation Law.

Leave a Reply