The problems of international air law continue to be relevant today. The issues of law enforcement of the Warsaw and Montreal Conventions are considered, the shortcomings of these documents are analyzed and the ways of solving the problems of their implementation are determined.
The Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention 1999) entered into force on 4 November 2003 in 90 countries. Japan, Portugal, Mexico, Canada, the United States and other countries have accepted and ratified it, but many of these states have not yet repealed the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air (the Hamburg Rules), so they have two systems – Warsaw and Montreal. The possibility of parallel participation in both systems significantly slows down the process of replacing the Warsaw rules with a more universal system proposed by the Montreal Convention.
The main reasons for the adoption of the Montreal Convention were too low compared to today’s social and economic standards, the limits of responsibility of the Warsaw system, the problem of lengthy proceedings that damage the business reputation of air transport in general, increasing the limits of responsibility, the need to consolidate all existing , as well as taking into account the directions of the established international practice.
The Montreal Convention provides a new, more modern definition of international air transportation, naming as such any service in which the place of departure and destination, whether or not there is a break or transhipment, located or in the territory of the two States Parties to the Convention, or in the territory of the same State Party, if the agreed stop is provided in the territory of another State, even if the State is not a State Party to the Montreal Convention.
At the time of the adoption of the Montreal Convention, the Warsaw System already had more than 10 documents, which was very difficult to define and delineate all regimes of liability and was a source of confusion for legal practitioners. In this regard, already at the 1975 conference in Montreal, the question was raised about the creation of a single convention to unify certain rules on international air transportation. The result of this many years of work is that the 1999 Montreal Convention is indeed based on the consolidation of all existing documents of the Warsaw system in the wording of the Montreal Protocol and taking into account the latest non-conventional documents, which increased the responsibility of air transport to passengers.
The Montreal Convention legalized the existence of two types of transportation documentation used in the registration of international air transportation: paper and electronic ticket. If electronic means of execution of the contract are used, the passenger is given written notice that the Montreal Convention defines and may limit the liability of carriers in case of harm to his life and health, in case of non-preservation of luggage or delay in transportation.
The Warsaw Convention, by virtue of its creation in 1929, could not provide for the use of an electronic ticket.
However, the adoption of the Montreal Convention will not eliminate either the problem of the complexity of the conventions or the operation of the acts of the Warsaw System, which creates certain difficulties for law enforcement. The Montreal Convention has thus so far become just another instrument in the field of international air transportation regulation. In this regard, there are often negative judgments about this unification.
Moreover, in cases where states recognize the same rules, but for some – enshrined in the text of the Montreal Convention, and for others – in the relevant documents of the Warsaw System (for example, the Montreal Protocol or the Guadalajara Convention), the carriage between these states may remain formally recognized. inactive.
The only way out of this situation is for all member states of the Warsaw System to ratify the Montreal Convention as soon as possible, as well as the Montreal Protocols of 1975, in order to minimize the number of regimes applied in the Warsaw System.
Since 2013, Ukraine has acceded to the Montreal Convention. It regulates only international traffic, simplifies the requirements for the document issued by the passenger carrier, provides a significant increase in the liability of airlines, and simplifies the mechanism for obtaining compensation. The interests of passengers under the Montreal Convention are higher than the interests of carriers. Now more than 100 states have abandoned the use of the Warsaw system and apply the rules and regulations of the Montreal Convention.
Author: Dmitry Chernikov
“Prikhodko & Partners“ Law Firm