Cargo Liability “State of the Union” Dan Soffin 18 April 2015 Montreal, Quebec

1. Cargo Liability “State of the Union” Dan Soffin 18 April 2015Montreal, Quebec Eighth Annual McGill Conference on International Aviation Liability & Insurance

2. State of the Union for Cargo Liability Topics • From Warsaw - Hague to MAP4 - Montreal 99 • The Legal Framework • Jurisdictional Challenges and Global Uniformity 8th Annual McGill Conference on International Aviation Liability & Insurance

3. From Warsaw - Hague to MAP4 - Montreal 99 Air Waybill Issuance • W air waybill • WH air waybill • MAP4 air waybill + “any other means which would preserve a record” • M99 air waybill + “any other means which would preserve a record” 8th Annual McGill Conference on International Aviation Liability & Insurance

4. From Warsaw - Hague to MAP4 - Montreal 99 Air Waybill Particulars • W Art 8 17 requirements (!) • WH Art 8 departure, destination, stopping place, convention notice • MAP4 Art 8 (AWB and Cargo Receipt) departure, destination, stopping place, weight • M99 Art 5 (AWB or Cargo Receipt) departure, destination, stopping place, weight 8th Annual McGill Conference on International Aviation Liability & Insurance

5. FromWarsaw - Hague to MAP4 - Montreal 99 Non Compliance • W no liability limitation (AWB or particulars) • WH no liability limitation (AWB or particulars) • MAP4 no effect on liability limitation • M99 no effect on liability limitation NB:contract of carriage still valid and otherwise governed by the Convention 8th Annual McGill Conference on International Aviation Liability & Insurance

6. From Warsaw - Hague to MAP4 - Montreal 99 Destruction, loss, or damage (all Conventions) • liability for damage sustained • there must be an “occurrence” or “event” during the “carriage by air” • the occurrence or event must cause the damage • unless proven otherwise, damage is presumed to have occurred during carriage by air NB: • M99 Art 18(4) If without the consent of the shipper… Other modes of carriage deemed to be carriage by air • where does “misdelivery” fall? 8th Annual McGill Conference on International Aviation Liability & Insurance

7. From Warsaw - Hague to MAP4 - Montreal 99 Delay (all Conventions) • carrier liable for damage occasioned by delay 8th Annual McGill Conference on International Aviation Liability & Insurance

8. From Warsaw - Hague to MAP4 - Montreal 99 Defences • W- “all necessary measures” or impossibility - negligent pilotage, handling of aircraft or navigation contributory negligence applies to delay and damage • WH - “all necessary measures” or impossibility - contributory negligence - inherent defect, quality or vice applies to delay and damage 8th Annual McGill Conference on International Aviation Liability & Insurance

9. From Warsaw - Hague to MAP4 - Montreal 99 Defences Cont’d • MAP4 Delay: “all necessary measures” or impossibility Damage: a) inherent defect, quality or vice b) defective packing… c) act of war or armed conflict d) act of public authority… • M99 Delay: “all measures reasonably required” or impossibility Damage: a) inherent defect, quality or vice b) defective packing… c) act of war or armed conflict d) act of public authority… Both Conventions allow contributory negligence defences for delay and damage 8th Annual McGill Conference on International Aviation Liability & Insurance

10. From Warsaw - Hague to MAP4 - Montreal 99 Limitation • W 250 FF/kg • WH 250 FF/kg • MAP4 17 SDR/kg (now 19 SDR) • M99 17 SDR/kg (now 19 SDR) Unlimited Liability • W wilful misconduct • WH intent or recklessness and with knowledge • MAP4 unbreakable limit/absolute limitation • M99 unbreakable limit/absolute limitation 8th Annual McGill Conference on International Aviation Liability & Insurance

11. From Warsaw - Hague to MAP4 - Montreal 99 Written Notice of Complaint • W Damage 7 days Delay 14 days • WH Damage 14 days Delay 21 days • MAP4 Damage 14 days Delay 21 days • M99 Damage 14 days Delay 21 days • notices in writing • person entitled to delivery • no notice means no action NB:is a Shipper’s notice valid? 8th Annual McGill Conference on International Aviation Liability & Insurance

12. From Warsaw - Hague to MAP4 - Montreal 99 Extinguishment • All conventions provide for extinguishment after 2 years from • date of arrival at destination • date on which aircraft ought to have arrived • date on which carriage stopped NB:difference between “extinguishment” and “limitation” 8th Annual McGill Conference on International Aviation Liability & Insurance

13. From Warsaw - Hague to MAP4 - Montreal 99 The Current Picture • widely adopted • exclusivity widely established in powerhouse jurisdictions • ready for e-freight ( when will e-freight be ready ? ) • clear monetary unit with unlimited liability no longer an issue • preservation of essential defences and principles and now unbreakable limits of liability • remains unclear on “misdelivery” • remains unclear on whether Shippers’ written notices of complaint satisfy Arts 26/31 • litigation generally declining 8th Annual McGill Conference on International Aviation Liability & Insurance

14. The Legal Framework • Warsaw – Hague – MAP4 – Montreal 99 • other conventions / modes of carriage • IATA Resolution 600b: The Air Waybill • IATA Recommended Practice 1601: Conditions of Carriage For Cargo • extra-contractual Terms & Conditions / Obligations • laws of the local jurisdiction 8th Annual McGill Conference on International Aviation Liability & Insurance

15. The Legal Framework IATA Resolution 600b: The Air Waybill • “…goods are accepted in apparent good order and condition…” • “goods may be carried by any other means including road, unless contrary instructions are given hereon by the Shipper…” • incorporates conventions conditions of carriage, regulations, tariffs, limitations on liability • provides a contractual term to limit liability to 19 SDRs/kg • incorporates requirement of written notice of complaint • Incorporates provisions for extinguishment NB:various versions of 600b abound 8th Annual McGill Conference on International Aviation Liability & Insurance

16. The Legal Framework IATA Recommend Practice 1601: Conditions of Carriage • incorporates Convention applicability and provisions • incorporates provisions of IATA Resolution 600b • provides additional contractual terms which, if not in conflict with Convention provisions, should be upheld • reinforces limitation of liability, written notice, extinguishment, etc… 8th Annual McGill Conference on International Aviation Liability & Insurance

17. The Legal Framework Extra-contractual Terms & Conditions/Obligations • shipper’s additional “instructions” • conflict with “no modification” terms (600b and 1601) • does cargo acceptance and carriage matter? Laws of the Local Jurisdiction • does the convention apply? • will the convention be applied? • will it be treated as an exclusive cause of action? 8th Annual McGill Conference on International Aviation Liability & Insurance

18. Jurisdictional Challenges and Global Uniformity Adoption • M99 is most globally adopted of the conventions • still, less than 60% of ICAO contacting states adhere • does domestic enabling legislation keep up with ratification or accession? 8th Annual McGill Conference on International Aviation Liability & Insurance

19. Jurisdictional Challenges and Global Uniformity Exclusivity • will a state abide by convention provisions? • will domestic law be used as an adjunct? • does convention compete with domestic law? • do heavyweight jurisdictions carry weight? 8th Annual McGill Conference on International Aviation Liability & Insurance

20. Jurisdictional Challenges and Global Uniformity Cultural Compatibility • do local values and principles mesh with convention principles? • limitation of liability • extinguishment • damages 8th Annual McGill Conference on International Aviation Liability & Insurance

21. Jurisdictional Challenges and Global Uniformity Tribunal and Judicial Attitudes • awareness, understanding of convention principles and intended outcomes • interpretive skills in wide ranging jurisdictions • awareness, synthesis of international judgments • awareness, understanding of the aviation industry • commitment to principles of unification • local plaintiff v. foreign carrier • is there a remedy for every wrong? 8th Annual McGill Conference on International Aviation Liability & Insurance

22. Jurisdictional Challenges and Global Uniformity Some Examples • European Union • India • Brazil 8th Annual McGill Conference on International Aviation Liability & Insurance

23. THANK YOU 8th Annual McGill Conference on International Aviation Liability & Insurance

24. Eighth Annual McGill Conference on International Aviation Liability & Insurance