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Lloyd's Maritime and Commercial Law Quarterly

FOUR NEW PROTOCOLS TO THE WARSAW CONVENTION

Neil R. McGilchrist

M.A. (Oxon); Legal Consultant with International Insurance Services.

On Sept. 25, 1975 the corpus of private international air law was increased by no fewer than four new legal instruments with the successful conclusion of the Montreal Diplomatic Conference sponsored by the International Civil Aviation Organisation (ICAO).
To many, the plethora of instruments regulating the air carrier’s liabilities already constitutes a maze through which the uninitiated stumble with difficulty. What then was the purpose of the new measures and why were four of them adopted ?
For the record the full titles of the four documents—all Protocols to existing conventions—are as follows:—
“(a) Additional Protocol No. 1 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929.
“(b) Additional Protocol No. 2 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as Amended by the Protocol Done at the Hague on 28 September 1955.
“(c) Additional Protocol No. 3 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as Amended by the Protocols Done at the Hague on 28 September 1955 and at Guatemala City on 8 March 1971.
“(d) Montreal Protocol No. 4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as Amended by the Protocol Done at the Hague on 28 September 1955.”
The achievements of the Montreal Conference were twofold. First, the delegates adopted a series of amendments to the existing regime of liability for the carriage of cargo (and baggage) by air. Secondly, a solution was found to the problem that the monetary limits to the carrier’s liability in the air conventions (as indeed in the majority of parallel conventions for other modes of transport) are expressed in an increasingly obsolescent and uncertain unit of account—the gold franc.
The first three Protocols deal with the latter issue. Very similar in scope and wording, these instruments serve to effect the changes agreed by the conference in the manner in which the monetary limits are henceforth to be expressed in the underlying conventions.
The fourth Protocol incorporates the new regime of liability for cargo.
The problem of the gold franc emerged late in the day as a subject for serious examination at the conference. Indeed, it was to the great credit of the delegates that in the time available they were able to agree on, draft, and adopt any solution to this question. However, one of the penalties of achieving so much was the necessity of preparing four separate Protocols to reflect the results of the conference rather than a single document. Attempts to adopt a single instrument would have obliged the conference to face squarely the problem that while most States might be prepared to agree to abandon the gold unit, not all States are party to all the underlying conventions.

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