Convention for the Unification of Certain Rules for International Carriage by Air – Montreal, 28 May 1999

Up to the year 1999, there were several conventions and protocols in carriage by air. Each country may have joined one of the conventions and signed one or more of the protocols, while other countries may decide not to sign the amendments done through protocols.

This made a complicated rules between states. Considering the developments of international air carriage in order to have a single convention that covers the need of modernized air carriage and unify the rules relating to carriage by air, ICAO decided to prepare a new convention for harmonizing the rules and regulations.

This convention agreed on 28. May.1999, named, Montreal Convention.

It is designed in 7 chapters and 57 articles:

• Chapter 1 – General Provisions
• Chapter 2 – Documentation and Duties of the Parties
• Chapter 3 – Liability of the Carrier/Compensation for Damage
• Chapter 4 – Combined Carriage
• Chapter 5 – Carriage performed by a Person other than the Contracting Carrier
• Chapter 6 – Other Provisions
• Chapter 7 – Final Clauses

Below are the summery of few important articles:

Article 1 states that the convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.

In this article we can realize that the convention applies when two states are member of this convention and international carriage defined as carriage between two state parties or carriage within the territory of one state party with an agreed stopping place with the territory of another state, even if that state is not a state party.

Carriage by several successive carries is also regarded as a single operation whether is agreed through one contract or series of contracts and even one contract or series of contract is to be performed entirely within the territory of the one state. More explanation about contracting carrier/actual carries is defined in chapter 5.

Article 2, states that the convention does not apply to postal items. The difference between Warsaw Convention and Montreal Convention also mentioned in article 2 as, In the carriage of postal items, the carrier shall be liable only to the relevant postal administration in accordance with the rules applicable to the relationship between the carriers and the postal administrations.

Article 3 states that, carrier shall deliver an individual or collective document for carriage of passenger and should deliver a baggage identification tag for each piece of checked baggage.

Carrier should also give a written notice to the passenger that this convention may limit the liability of carries in respect of death or injury and for loss, damage or delay in delivery of the baggage(s).

Article 4 states that for carriage of cargo, an airway bill shall be delivered or any other means that preserves a record of the carriage can be substitutes for the delivery of an air waybill.

Consignor is responsible for preparation of the AWB and information given on the AWB. This is clearly mentioned in point 1 of article 7 of this convention that: “The air waybill shall be made out by the consignor in three original parts”. And in point 4 of article 7 mentioned that: “If, at the request of the consignor, the carrier makes out the air waybill, the carrier shall be deemed, subject to proof to the contrary, to have done so on behalf of the consignor.”

Only if, as per item 2 of article 4, a document other than AWB is being used, the carrier shall deliver to the consignor a cargo receipt.

Article 5 defines the items that need to be reflected in the AWB that is easier than what has been mentioned in Warsaw convention. It also states that, if the places of departure and destination are within the territory of a single State Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place; and

Article 6 is new and mentioned that the responsibility of custom formalities, police and other authorities for delivering a document indicating the nature of cargo should be done by consignor and carrier will not have any duty, obligation or liability.

Article 7 describes the responsibility of the consignor to make out the AWB and the number of original copies of the AWB.

Article 8 mentions that, when there is more than one package, the carrier of cargo has the right to require the consignor to make out separate air waybills.

Article 9 mentions that non-compliance of articles 4 to 8 shall not affect the rules of this convention and the limitation of the liability.

Article 10 states that the consignor is responsible for the correctness of the particulars and statements relating to the cargo inserted by it or on its behalf in the air waybill or for insertion in the record preserved by the other means referred to in  paragraph 2 of Article 4, and shall indemnify the carrier against all damage suffered by it, or by any other person to whom the carrier is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements furnished by the consignor or on its behalf.

If as per item 2 of article 4, a document other than AWB is delivered to consignor by carrier and if there is any irregularity of the particulars and statements in the cargo receipt, then the situation will be vice versa i.e. the carrier shall indemnify the consignor against all damage suffered by it, or by any other person to whom the consignor is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements inserted by the carrier or on its behalf in the cargo receipt.

Article 11 states that, the air waybill or the cargo receipt is prima facie evidence of the conclusion of the contract, of the acceptance of the cargo and of the conditions of carriage mentioned therein. Any statements in the air waybill or the cargo receipt relating to the weight, dimensions and packing of the cargo, as well as those relating to the number of packages, are prima facie evidence of the facts stated; those relating to the quantity, volume and condition of the cargo do not constitute evidence against the carrier except so far as they both have been, and are stated in the air waybill or the cargo receipt to have been, checked by it in the presence of the consignor, or relate to the apparent condition of the cargo.

Article 12 is same like the article 12 of Warsaw Convention. Please refer to the explanation mentioned in point 6.3 above in the section of review on Warsaw convention. states that,

1. The consignor has the right to dispose of the cargo by withdrawing it at the airport of departure or destination, or by stopping it in the course of the journey on any landing, or by calling for it to be delivered at the place of destination or in the course of the journey to a person other than the consignee originally designated, or by requiring it to be returned to the airport of departure.

The consignor must not exercise this right of disposition in such a way as to prejudice the carrier or other consignors and must reimburse any expenses occasioned by the exercise of this right.

2. If it is impossible to carry out the instructions of the consignor, the carrier must so inform the consignor forthwith.
3. If the carrier, carries out the instructions of the consignor for the disposition of the cargo without requiring the production of the part of the air waybill or the cargo receipt delivered to the latter, the carrier will be liable, without prejudice to its right of recovery from the consignor, for any damage which may be caused thereby to any person who is lawfully in possession of that part of the air waybill or the cargo receipt.
4. The right conferred on the consignor ceases at the moment when that of the consignee begins in accordance with Article 13. Nevertheless, if the consignee declines to accept the cargo, or cannot be communicated with, the consignor resumes its right of disposition.

When an Airline/Agent receive shipper’s request for any of above-mentioned subjects, it’s better to get a confirmation from consignee for the changes to avoid further claims from the parties. On the other hand, as per article 13 of the convention, consignee has the right to ask for AWB and goods on arrival of the cargo at destination, so Airline/Agent, may better to ask for consignee’s confirmation.

As already mentioned, the local regulations of destinations should be observed as well. When a cargo arrives to the customs territory of one state, it will be considered as Customs belongings and after consignee pays the tax and dues, he will be considered as owner of the goods. For returning the cargo to origin or delivering the goods to someone other than the one mentioned on the AWB, the approval of Customs shall be received as well.  This case will not be applicable, if the cargo arrives at the airport of a country of destination, that is considered to be a free zone.

Article 13 states that,

1. Except when the consignor has exercised its right under Article 12, the consignee is entitled, on arrival of the cargo at the place of destination, to require the carrier to deliver the cargo to it, on payment of the charges due and on complying with the conditions of carriage.
2. Unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee as soon as the cargo arrives.
3. If the carrier admits the loss of the cargo, or if the cargo has not arrived at the expiration of seven days after the date on which it ought to have arrived, the consignee is entitled to enforce against the carrier the rights which flow from the contract of carriage.

Article 14 states that,

The consignor and the consignee can respectively enforce all the rights given to them by Articles 12 and 13, each in its own name, whether it is acting in its own interest or in the interest of another, provided that it carries out the obligations imposed by the contract of carriage.

If the shipment is not carried through Letter of Credit and consignee has already paid the invoice value and other charges to shipper, he can ask the shipper to transfer the right of Article 12 to him and mention the same in the body of the AWB.

This way, shipper will not be able to ask the carrier to change the name of consignee or returning the shipment to origin, or….

Article 16 is important part showing the responsibility of the shipper to organize all documents and declare the shipment to customs.

1. The consignor must furnish such information and such documents as are necessary to meet the formalities of customs, police and any other public authorities before the cargo can be delivered to the consignee. The consignor is liable to the carrier for any damage occasioned by the absence, 6 insufficiency or irregularity of any such information or documents, unless the damage is due to the fault of the carrier, its servants or agents.
2. The carrier is under no obligation to enquire into the correctness or sufficiency of such information or documents.

Article 17 talks about the liability of the carrier for damage to baggage and death or injury of passenger.

It states that, the carrier is liable for damage in case of death or bodily injury of a passenger and for damage sustained in case of destruction or loss of, or of damage to, checked baggage.

However, the carrier is not liable if the damage resulted from the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents.

If the carrier admits the loss of the checked baggage, or if the checked baggage has not arrived at the expiration of twenty-one days after the date on which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage.

Unless otherwise specified, in this Convention the term “baggage” means both checked baggage and unchecked baggage.

Article 18 is related to the damage to Cargo. It states that,

1. The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air.
2. However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damage to, the cargo resulted from one or more of the following:
   1. inherent defect, quality or vice of that cargo;
   2. defective packing of that cargo performed by a person other than the carrier or its servants or agents;
   3. an act of war or an armed conflict
   4. an act of public authority carried out in connection with the entry, exit or transit of the cargo.
3. The carriage by air within the meaning of paragraph 1 of this Article comprises the period during which the cargo is in the charge of the carrier.
4. The period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport. If, however, such carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transshipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air. If a carrier, without the consent of the consignor, substitutes carriage by another mode of transport for the whole or part of a carriage intended by the agreement between the parties to be carriage by air, such carriage by another mode of transport is deemed to be within the period of carriage by air.

Article 19 states that, the carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

Article 20 talk about the exoneration, If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger. This Article applies to all the liability provisions in this Convention, including paragraph 1 of Article 21.

Article 21 is for Compensation in Case of Death or Injury of Passengers.

1. For damages arising under paragraph 1 of Article 17 not exceeding 100 000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.
2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100 000 Special Drawing Rights if the carrier proves that:
   1. such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or
   2. such damage was solely due to the negligence or other wrongful act or omission of a third party

Article 22 talks about the Limits of Liability in Relation to Delay, Baggage and Cargo.

1. In the case of damage caused by delay as specified in Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4 150 Special Drawing Rights.
2. In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1 000 Special Drawing Rights for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination.
3. In the carriage of cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of 17 Special Drawing Rights per kilogramme, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignor’s actual interest in delivery at destination.
4. In the case of destruction, loss, damage or delay of part of the cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier’s liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the destruction, loss, damage or delay of a part of the cargo, or of an object contained therein, affects the value of other packages covered by the same air waybill, or the same receipt or, if they were not issued, by the same record preserved by the other means referred to in paragraph 2 of Article 4, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability.
5. The foregoing provisions of paragraphs 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.
6. The limits prescribed in Article 21 and in this Article shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff, including interest. The foregoing provision shall not apply if the amount of the damages awarded, excluding court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later.

Article 23 talks about conversion of Monetary Units. It says, SDR is the Special Drawing Right as defined by the International Monetary Fund. The value of a national currency, in terms of the Special Drawing Right, of a State Party which is a Member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund.

For States which are not Members of the International Monetary Fund, the limit of liability of the carrier:

• 1 500 000 monetary units per passenger, for death and injury to passenger (Article 21)
• 62 500 monetary units per passenger, for the damage caused by delay in carriage of passenger (paragraph 1 of article 22)
• 15 000 monetary units per passenger for loss, damage or delay in carriage of passenger baggage (paragraph 2 of Article 22)
• 250 monetary units per kilo for loss, damage or delay in carriage of cargo (paragraph 3 of Article 22)

This monetary unit corresponds to sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. The conversion of these sums into national currency shall be made according to the law of the State concerned.

Article 25 states that, A carrier may stipulate that the contract of carriage shall be subject to higher limits of liability than those provided for in this Convention or to no limits of liability whatsoever

Article 31 talks about the time limits of complaints.

1. Receipt by the person entitled to delivery of checked baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage or with the record preserved by the other means referred to in paragraph 2 of Article 3 and paragraph 2 of Article 4.
2. In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his or her disposal.

Article 33 talks about the jurisdiction.

1. An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.
2. In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.
3. For the purposes of paragraph 2,
   1. “Commercial agreement” means an agreement, other than an agency agreement, made between carriers and relating to the provision of their joint services for carriage of passengers by air;
   2. “Principal and permanent residence” means the one fixed and permanent abode of the passenger at the time of the accident. The nationality of the passenger shall not be the determining factor in this regard.
4. Questions of procedure shall be governed by the law of the court seized of the case.

Article 35 states that, the right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

Article 38 talks about combined carriage, In the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of this Convention shall, subject to paragraph 4 of Article 18, apply only to the carriage by air, provided that the carriage by air falls within the terms of Article 1.

Nothing in this Convention shall prevent the parties in the case of combined carriage from inserting in the document of air carriage conditions relating to other modes of carriage, provided that the provisions of this Convention are observed as regards the carriage by air.

Article 39 defines the “Contracting Carrier” and “Actual Carrier”. It declares that:

The provisions of this Chapter apply when a person (hereinafter referred to as “the contracting carrier”) as a principal makes a contract of carriage governed by this Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor, and another person (hereinafter referred to as “the actual carrier”) performs, by virtue of authority from the contracting carrier, the whole or part of the carriage, but is not with respect to such part a successive carrier within the meaning of this Convention. Such authority shall be presumed in the absence of proof to the contrary.

Article 40 says that, If an actual carrier performs the whole or part of carriage which, according to the contract referred to in Article 39, is governed by this Convention, both the contracting carrier and the actual carrier shall, except as otherwise provided in this Chapter, be subject to the rules of this Convention, the former for the whole of the carriage contemplated in the contract, the latter solely for the carriage which it performs.

Article 57 talks about the reservation. No reservation may be made to this Convention except that a State Party may at any time declare by a notification addressed to the Depositary that this Convention shall not apply to international carriage by air performed and operated directly by that State Party for non-commercial purposes and/or the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or leased by that State Party, the whole capacity of which has been reserved by or on behalf of such authorities.