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21 April 2021
Many of the goods that arrive daily in stores or directly at people's homes have travelled a long way. The customer's wish for goods to be available as quickly as possible means that such goods are often transported across borders by air freight. National laws do not apply in such cases, at least not to a great extent. Instead, various air transport agreements establish comprehensive regulations of which parties must be aware.
In 1929 the Warsaw Convention established the first regulations relating to the international standardisation of air law. These conditions remained unchanged for 26 years and were first revised in 1955. Further amendments followed in 1961 and 1976.
Not all countries ratified such amendments, which resulted in a patchwork of different regulations in different countries. Therefore, in 1999 the Montreal Convention (MC) established a new set of regulations.
If both the country of departure and the country of destination are signatories to both conventions, the newer agreement takes precedence. Otherwise, the lowest common denominator is sought.
According to Article 11 of the MC, an air waybill, which is issued by the consignor, establishes the rebuttable presumption of the conclusion of a contract of carriage by air.
The air carrier need not check the air waybill's accuracy. Instead, the consignor must compensate the air carrier for any damage that such carrier (or a third party for which such carrier is liable) suffers which results from the incorrectness, inaccuracy or incompleteness of any information or statements made by, or on behalf of, the consignor.
The MC, according to Article 18(4) thereof, applies to carriage by land, sea or inland waterways where such carriage is performed during the performance of a contract of carriage by air for the purposes of:
Any damage that occurs during such transport (known as 'ancillary transport') is deemed to have occurred during the carriage by air. Therefore, the air carrier is liable under air freight law.
Such multimodal contracts usually entail 'door-to-door' transport (ie, that which is offered by courier, express and parcel services). Accordingly, the parties involved often sign a uniform transport contract that covers the entire journey, including the air transport of the shipment from the point of departure to the destination. Therefore, air transport need not begin or end at an airport to be subject to the MC. Where damage occurs and the cause thereof is unknown, such damage is legally presumed to be caused by an event which occurred during the air carriage.
Further, where goods are temporarily stored in a warehouse located outside the airport, such storage is also subject to the MC.
Limited air carrier liability
According to Article 22(3) of the MC, air carriers are liable for destruction, loss, damage or delays only up to 22 special drawing rights (SDR) per kilogram, unless the sender has:
The declaration of customs value is made separately. Therefore, air waybills have two fields: one to indicate the customs value and one to indicate a declaration of value.
This limitation of liability is unbreakable (ie, the amount of liability is the same regardless of whether the carrier or related parties acted with slight or gross negligence or with intent). The limitation of liability level is reviewed every five years and adjusted for inflation. It was last updated in December 2019.
SDR is a currency unit of the International Monetary Fund and is calculated on a daily basis. The decisive factor is the exchange rate on the day of a judgment. Accordingly, the claimant must also quantify its claim in SDR. It is not initially entitled to any other type of compensation.
Notice of damage
The consignee must notify the carrier immediately on discovering any damage (ie, within 14 days of acceptance in the case of goods). Therefore, a notice of possible damage by the sender is insufficient.
Under Article 33 of the MC, a plaintiff must bring an action for damages in the territory of one of the contracting states – that is, in:
Other places of jurisdiction are excluded. The country in which the shipment is handed over to the carrier is not a place of jurisdiction under the MC.
Burden of costs
Under Article 22(6) of the MC, if a carrier offers sufficient compensation within six months of the damaging event or before a legal action has been brought to court, the claimant must bear the cost of the proceedings, irrespective of the lawsuit's outcome. Therefore, parties cannot claim legal costs in addition to the maximum liability under the MC. Further, claimants are not entitled to interest.
For further information on this topic please contact Carsten Vyvers at Arnecke Sibeth Dabelstein by telephone (+49 69 97 98 85 0) or email (firstname.lastname@example.org). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
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