The Convention for the Unification of Certain Rules for International Carriage by Air (1999) (the Montreal Convention) reflects the modernisation and integration of the Convention for the Unification of Certain Rules for International Carriage by Air (1929) (the Warsaw Convention) and its protocols, which adapted to the development and requirements of the air transport industry.
There are 137 contracting states to the Montreal Convention, covering all the major countries using air transport. It is important for international air transport enterprises to acquire a better understanding of the provisions of the “period of carriage by air” in article 18 of the Montreal Convention. Beijing Arbitration Commission/Beijing International Arbitration Centre has accumulated experience in the field of international air transport, and uses the analysis of a recent case as an example.
To begin with, the consignee and the carrier signed a transportation agreement. The cargo was carried from an airport in South Korea to an airport in Shanghai by air, and was transferred to the consignee by land transportation after a short stay in the airport.
During the land transportation, the cargo was damaged and could not be used normally, so the consignee requested the carrier to compensate for the relevant losses.
In this case, the carrier claimed that the damage that occurred during the land transportation should be deemed as the result of an event that took place during the period of the carriage by air, hence the carrier could enjoy protective rights such as limits of liability under the Montreal Convention.
Although the carrier in the case was not supported because it failed to meet the standard of proof in other matters, a question worth studying remains, which is: Under what circumstances should the damage that occurred during the land transportation be deemed a result of the event that took place during the carriage by air.
According to article 18 of the Montreal Convention, the period of the carriage by air comprises the period during which the cargo is in the charge of the carrier. In general, the period of the carriage by air does not extend to any carriage by land, sea or inland waterway performed outside an airport.
However, if such carriage takes places in the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event that took place during the carriage by air.
The meaning of this provision is not clear and needs to be interpreted according to the rules of interpretation in article 31 of the Vienna Convention on the Law of Treaties.
Paragraph 4 of article 18 of the Montreal Convention provides that without the consent of the consignor, if the carrier substitutes carriage by another mode of transport, such carriage shall also be deemed to be within the period of carriage by air. Taken together with the provisions of paragraph 3 of article 18 of the Montreal Convention, it can be seen that paragraph 4 of article 18 of the convention is an expansive provision regarding the period of carriage by air, that is, as long as the cargo is under the control of the carrier, in the absence of proof to the contrary, any damage incurred during loading, delivery or transhipment of the cargo by other means of transport during the performance of the contract for carriage by air shall also be regarded as the damage incurred during the period of the carriage by air.
The interpretation of this paragraph is also consistent with the judicial practice of the courts. In a case heard by the Shanghai Jing’an District People’s Court, the court held that because the damage to cargo occurred during the period of the land short-barge transportation from the airport freight warehouse to the consignee’s warehouse, the cargo was still under the control of the carrier, and the damage should be deemed as happening within the period of the carriage by air.
In another subsequent case, the Shanghai Second Intermediate People’s Court made a similar finding. In that case, the damage to the cargo occurred in the land transportation period from an airport in Hong Kong to the consignee, and the court held that the carriage by land performed by the consigner for the purpose of delivery of the cargo should fall within the period of carriage by air stipulated by the Montreal Convention.
In another case heard around the same time, the Shanghai Pudong New Area People’s court held that if the cargo was transported to the airport for the purpose of loading, and the damage occurred when the cargo was unloaded at the airport, the damage occurred during this period should also be deemed as happened during the period of carriage by air.
This provision of the Montreal Convention has extended the application scope from pure air transport to related land, sea and inland waterway transport. The carrier of air transport may also invoke the protective rights of the Montreal Convention, such as the limits of liability, for damage that has occurred in other modes of transport.
On the one hand, this expansion will protect the interests of the carrier and facilitate the development of the air transport industry. On the other hand, it will remind the consignor and the consignee that they should also take protective measures to prevent events and protect their legitimate rights and interests in the transport processes related to air transport.
Gao Zhuang is a case manager at the Beijing Arbitration Commission/Beijing International Arbitration Centre (BAC/BIAC)
