Bauslit A.I.
Sylkina S.M. (scientific adviser)
Al-Farabi Kazakh National University, Kazakhstan
Warsaw System and its contribution to the development
of international air traffic
International air service consists of two different in
their content spheres, and both of them are governed by international
agreements.
One sphere of relations between States on the use of
airspace and the organization of general issues of international aircraft
operations and activities of the International Civil Aviation Organization,
which is a specialized agency of the UN. These are common questions of
international air traffic got its decision under the Chicago Convention on
International Civil Aviation 1944. It creates a legal basis for agreements on
the establishment of communication between particular states. Intergovernmental
Agreement on the Establishment of air traffic, in turn, based on the principle
of State sovereignty over its territory and airspace, aircraft companies
determine which operations can be undertaken, their commercial rights and
responsibilities, establish air lines, compulsory insurance of civil liability
of owners of vehicles, regulate tariffs for transportation, the procedure for
investigating accidents, customs, tax and other terms of air traffic.
Another area is the relationship between aviation
companies (carriers) and their clientele related to air transport of
passengers, cargo and baggage. Available in this field and multilateral
agreements are of a global nature. They contain a uniform civil law on the
terms of the contract of international carriage, in which the goal is achieved
transport operations - the movement of goods and passengers to their
destination.
Warsaw system - a complex system of documents,
consisting of most of the Warsaw Convention of 1929, following a series of
protocols and an additional convention:
- Hague Protocol 1955 amending the Warsaw Convention;
- Guadalajara 1961 Convention on the traffic carried
on by other than the contracting carrier;
- Montreal Additional Protocol 1975 N 1, changing the
Warsaw Convention;
- Montreal Additional Protocol 1975 N 2, changing the
Warsaw Convention as amended by the Hague Protocol 1955;
- Montreal Additional Protocol 1975 N 4, which changes
with regard to freight the Warsaw Convention as amended by the Hague Protocol
1955.
Moreover, the state's participation in one of these
documents does not necessarily mean its participation in the other. For
example, Russian Federation is involved only in the Warsaw Convention of 1929,
The Hague Protocol of 1955, as well as the Guadalajara Convention. The above
are only valid documents. Besides them, there are protocols that have not
entered into force: Guatemalan Protocol 1971 amending the Warsaw Convention as
amended by The Hague Protocol of 1955 and the Montreal Protocol Additional 1975
N 2, changing the Warsaw Convention as amended by The Hague Protocol of 1955
and Guatemala City Protocol 1971.
The Warsaw Convention was adopted at an early stage of
development of international civil aviation. Advanced aviation technology,
increased mobility of passengers, almost worldwide network of transport markets
and the globalization of air transport - these are just some of the new
phenomena that determine the development of international air transport at the
moment. These new realities are forced to admit that the change in the rule of
law must keep pace with the technical, social and commercial changes and that
the modernization of the relevant rules governing these changes becomes an
important issue for all stakeholders: governments, the aviation industry and
passengers.[1]
The main reason for amending the Warsaw Convention was
the need to increase the responsibility of an air carrier that has been
associated with an increased safety, strengthening of the economic situation of
the airlines and the rising cost of living. Efforts of the leading countries of
the West in this direction met with resistance supported by socialist countries
economically underdeveloped countries, to carry out a policy of protectionism
in relation to their national airlines.
Hague Protocol 1955 established the Warsaw Convention
has raised the limit of liability of the carrier for the life and health of
passengers twice. Not entered into force in 1971 Guatemalan protocol has
increased its six times and established strict liability of the carrier for
damage to life and health of passengers and the failure to store luggage,
providing a single limit of liability for failure to preserve and delayed
delivery of baggage and hand luggage. As Guatemalan protocol is not applicable
to the carriage of goods, in 1975 signed the Montreal Protocol N 4, where the
carrier's liability for failure to store also became an objective. The
remaining three of the Montreal Protocol transfer amount limits established by
the Warsaw Convention and subsequent protocols of gold francs to the Special
Drawing Right of the International Monetary Fund. Guadalajara Convention, 1961
primarily enabled the carrier who has not concluded a contract of carriage, but
in fact it provides, refer to the conditions and limitations of liability
established by the Warsaw System documents. [2]
Over the past more than 80 years, the Warsaw
Convention, for various reasons transformed into so-called "Warsaw
System", the complexity and fragmentation which resulted in a very fuzzy
legal mechanism, the use of which for passengers has become illusory. Restore
legal accuracy and consistency of the rules of international air transport in
parallel with the implementation of a coordinated global modernization and
consolidation of the "Warsaw System" - that's the main purpose of the
adoption of a new instrument - the Montreal Convention. Adoption and fairly
rapid entry into force (4 November 2004), the Convention suggests that the
international aviation community is committed to a more efficient and
responsible work in the XXI century international air transport.
Compared with the Warsaw Convention the new Convention
greatly increases the protection of passengers of international airlines and
improves the provision of financial compensation in connection with the
accident. That is the new Convention puts the interests above the interests of
carriers of passengers whose interests are subordinate. Montreal Convention of
limited liability moved to establish unlimited liability. While the Warsaw
Convention sets a limit of liability in case of death or injury at the level of
10 thousand dollars. United States, the Montreal Convention has introduced a
two-tier system of justice. First level - objective liability of up to 100
thousand Special Drawing Rights (about 140 thousand dollars USA), regardless of
the carrier's fault.
The second level is based on the presumption of guilt
and the carrier does not provide for limitation of liability. The carrier's
liability for damages in case of death or injury arises only when the death or
personal injury on board the aircraft or during any operations of embarking or
disembarking. In respect of such injury compensation does not exceed 100
thousand SDRs per passenger and the carrier cannot exclude or limit its
liability. [1]
The main reason for the appearance of the Montreal
Convention is that at the end of the last century the concept of air carrier
liability, fixed Warsaw Convention 80 years ago, no longer meet the level of
development and security of international air transport.
With its consolidation shifted priorities in the regulation of air carrier
liability in the direction of providing firm guarantees the most complete
redress to victims when accidents that led to the emergence of a new legal
regime for international air transport, the proposed Montreal Convention.
One of the significant advantages of the Montreal
Convention of 1999 is that it solves in a single text the main urgent issues in
the field of legal regulation of international air transportation of
passengers, baggage and cargo, responding to different interests collide in
this area. In contrast to the documents of the Warsaw Montreal Convention committed
in Russian, English, Arabic, Russian and Spanish languages, all texts being
equally authentic. On the other hand, as the Warsaw and Montreal Convention
include clarification related to the fact that in some cases by international
conventions and may be subject to shipping within the same state. According to
these refinements, even if there is a "break in the carriage or
overload," or if one of several successive carriers perform the carriage
within their own state, each Convention shall apply to such transportation, and
the latter is considered to be international, provided that the entire carriage
is regarded by the parties as a single contract operation. This means that if
the goods have been accepted for carriage by air carrier, for example, in
London, with an indication in the invoice as the destination of Novosibirsk,
shipping domestic flight between Moscow and Novosibirsk is also considered
international and fall under the Convention. This rule applies not only when
the carriage is performed on a single invoice, but even if the bill is reissued
in Moscow with the preparation of the internal form of transportation document
or goods are handed over to the flight of another air carrier.
Summing up, it should be noted that the Montreal
Convention to improve the position of passengers and cargo, eliminates problems
with the length of proceedings, in a word, the Warsaw Convention served its
purpose and is outdated. The new convention is increasing competition in the
airline industry, increases the responsibility of airlines to passengers and
removes restrictions on compensation for loss of baggage or harm to the life
and health of passengers, greatly simplifying the mechanism of its receipt.
Reference:
1. http://vse-uchebniki.com/mejdunarodnoe-pravo-besplatno/vozniknovenie-krushenie-varshavskoy.html
2.
http://www.brokert.ru/material/mezhdunarodnye-konvencii-vozdushnye-perevozki
3. Chicago Convention on International Civil Aviation