Lloyd's Maritime and Commercial Law Quarterly
CARRIAGE BY AIR IN THE U.S. COURT OF APPEALS
Re Korean Air Lines Disaster of September 1, 1983
The American courts have played a major role in the development of case law interpreting and applying the Convention for the Unification of Certain Rules relating to Carriage by Air 1929 (“the Warsaw Convention”). Widespread dislike in the United States for limitation of liability in the form of a ceiling on compensation, a principal tenet of the Warsaw Convention, and greater enthusiasm for litigation have combined to produce a stream of attempts to persuade largely willing courts to find means of circumventing the limits, additional to the ways provided in the Convention itself.
Even though the limits set in 1929 were doubled in 1955 by the Hague Protocol, the resultant amount was still unacceptably low for the U.S. Furthermore, the sums after conversion into national currencies tended to be progressively depressed by a general (but not universal) practice of using the official price of gold for the amounts specified in the Convention and Protocol, before the arrangements based on gold were abandoned by the international community.1 In the face of a threatened withdrawal by the U.S., the limits were increased in 1966 for claims in respect of injury or death resulting from events in the course of flights to, from or through the U.S. This was not achieved by amendment of the Convention or Protocol but by a special contract entered into by the carriers in which they agreed, in addition to setting a higher limit, to waive their defence under the Convention that they had in any particular case taken all necessary measures to avoid the damage. This whole package of changes is commonly, and slightly confusingly, described as the “Montreal Agreement”.2
It is against this background that the decision of the U.S. Court of Appeals in Re Korean Air Lines Disaster of September 1, 1983
3 assumes significance. Although the Court of Appeals devoted its closest attention to problems of applying precedent in consolidated cases arising in different districts of the U.S. federal system, the court endorsed wholesale the judgment of the District Court on the applicability of the Warsaw Convention to international flights between two states which had not deposited instruments of ratification, accession or adherence to the same ver
1. It was the planned abandoning of gold by the International Monetary Fund that led to the inclusion in the four Montreal Protocols of 1975 of provisions amending the various versions of the Warsaw Convention to substitute the IMF’s Special Drawing Rights as the measure of the limit of liability. These Protocols are not yet in force.
2. CAB No. 18900, 31 Fed. Reg. 7302 (1966), reproduced in Shawcross and Beaumont, Air Law, 4th edn., Vol. II, Part D, p. 43.
3. (1987) 829 F. 2d 1171 (U.S. C.A. for the District of Columbia) on appeal from U.S. District Court for the District of Columbia (1985) 664 F.Supp. 1463.
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