Монреальская конвенция для унификации некоторых международных воздушных перевозок 1999 г.

Abstract

Transport law has b e e n a most difficult field for lawyers. International air transportation is not an exclusion. This issue is especially important because on May 28, 1999 the Montreal International Conference adopted a new Convention for the Unification of Certain Rules for International Carriage by Air (MC) which came into force on November 4, 2003. It aims at consolidation of the Warsaw system into a single document in its most recent document's version and at modernization of the air carrier liability regime (mainly, concerning passenger service). The necessity to study the M C as a document in force in many countries is determined by the character of the international transportation itself as well as by a number of factors which make the possibility of its ratification by the Republic of Belarus quite certain in near future. The article deals only with some salient points of the new unification. The consolidation of all convention regulations of international air transportation into a single document was the main objective of the M C adoption because at that moment the Warsaw system included over 10 documents, which presented a great difficulty in determining and separation of all liability regimes. At the same time this standardization may become a serious problem. The MC is merely another document in this field. Moreover, in case states recognize standardized rules fixed for some of t h em in the M C text and for others in the Warsaw system documents neithe instruments may be operating during the transportation between these states. The solution is the quickest ratification of b o t h the MC and the 1975 Montreal Protocols (MP) by all states so that the number of the Warsaw system regimes could b e minimized. The new Convention's modernization of the carrier's liability for the h a rm to the passenger during the transportation was based on the existing international practice reflected in the contracts between air companies of 1995—1996, which went against the Warsaw system norms. Thus, the M C introduced the following innovations: 1) elimination of the limits of the carrier's liability; 2) abandoning the liability principle from the beginning of the carrier's fault for the damages not exceeding 100,000 SDR and establishing absolute liability within these limits; 3) introduction of the so-called "the 5t h jurisdiction", i. e. the possibility of filing a claim by the injured person at his/her place of residence. The M C norms on the goods transportation are based on number 4 regime of the MP and the principle of the liability for the freight damage irrespective of the carrier's fault is introduced. Only few of the circumstances fixed in article 18 can be used as the grounds for the exemption from liability. As of now the carrier must bear liability b o t h for the contingencies and for the actions of third parties. The M C also denies the force majeur circumstances of natural character as well as some of social character, thus reflecting the theory of negation of the possibility of force majeur in air transportation operations. The author believes that these cases are possible in the air transportation practice, because it is not even necessary for the freight to b e in flight to recognize the fact that damages were incurred during air transportation as envisioned by Article 18 of the MC. Another noticeable trend in the development of air transportation is the gradual transition towards simplified (including electronic) contracts and paper work between the carrier and the customers. This involves the documents for acceptance of the freight for carriage and the air tickets (the notion of a collective ticket and a number of guarantees for passengers are introduced). The M C establishes special borrowing rights of the IMF as a unit for calculation the carrier liability limit which is based on the 1975 MP provisions. For the first time a system of revision of the liability limits of ICAO every five years is envisioned on the basis of the notification of the states-parties to the Convention in case the inflation coefficient has exceeded 10 percent. The author supports the necessity for the Republic of Belarus to accede to at least N 1—2 of MP which replaces the Gold Franc by the SDR and the introduction in Chapter 40 of the Civil Code of the corresponding provisions on the SDR transfer with the a im to regulate the limits of the carrier's liability. The M C was the first to include the provision o n the states-parties' duty to demand from the carrier's the appropriate insurance of their liability. It is evident, however, that the term "appropriate" can be interpreted in different ways by different states, which can cause serious problems in realization of transportation by air companies of different countries.