Served July 17, 1995
Agreements adopted by the Cargo | Docket 48831 Services Conferences of the | Resolution 600b International Air Transport | Docket 49596 Association relating to conditions | R-1, R-8 of contract |
Various members of the International Air Transport Association (IATA) have filed two agreements with the Department for approval and antitrust immunity under sections 41309 and 41308 of Title 49, United States Code, and Part 303 of the Department's regulations. They were adopted at the annual meetings of the Cargo Services Conferences in 1993 and 1994 for amended intended effectiveness on October 1, 1994.
In 1989, IATA adopted Resolution 600b, which was a new, abbreviated version of the standard Air Waybill Conditions of Contract contained in Resolution 600b(II), which it was intended to replace. Portions of Resolution 600b were disapproved by the Department in Order 89-10-52 and the decision confirmed on reconsideration in Order 91-10-21. As a result, the airlines continued to use Resolution 600b(II). In 1993, IATA amended Resolution 600b, taking into account the Department's expressed concerns, and submitted the amended version for approval in Docket 48831 with an intended effective date of October 1, 1995. In 1994, IATA further amended Resolution 600b, taking into account certain U.S. court decisions interpreting provisions of the Warsaw convention as applied to the contents of a cargo waybill. The latter amendments to Resolution 600b were submitted to the Department as R-1 in Docket 49596, with a revised intended effective date of October 1, 1994, for the resolutions in both dockets.
We will approve the text of Resolution 600b as submitted in Docket 48831, CSC(15)600b. As IATA noted in its justification in that docket, Order 89-10-52 approved the language of paragraph 7.1.1 only upon the understanding that the words "immediately after discovery of the damage" do not constitute a time limit for filing claims independent of the specified 14-day period from the date of receipt of the cargo. IATA assures us that the words are "intended to encourage prompt reporting" without constituting a separate requirement. We will therefore approve IATA's language, subject to a condition implementing this understanding.
However, with respect to the additional amendments to Resolution 600b submitted in Docket 49596, CSC(16)600b, we have two substantial difficulties. First, IATA has proposed a new paragraph 4.2 which states that in carriage to which the Warsaw Convention does not apply, a carrier "may" permit a shipper to increase its cargo liability limitation by declaring a higher shipment value and paying a supplemental charge if so required. The cargo liability limitation for this non-Warsaw carriage is the same as that set forth in paragraph 3 for Warsaw carriage: 17 Special Drawing Rights (as defined by the International Monetary Fund) per kilogram of cargo lost, damaged or delayed. Paragraph 4.2 is intended, in IATA's words, to provide the same "option" to shippers that is provided by paragraph 4.1 for Warsaw carriage. However, paragraph 4.2 is clearly permissive, while the language in paragraph 4.1 indicates that the shipper's right to declare a higher value under the Convention is absolute for cargo accepted for carriage. We have not objected to the extension of the Warsaw cargo liability limit to non-Warsaw carriage, but are firmly of the view that, in return, the complementary right of the shipper to declare excess value should be no less assured in the case of non-Warsaw carriage. We will therefore defer action on paragraph 3 of Resolution 600b until IATA changes the word "may" to "shall" in paragraph 4.2, or adopts other acceptable language that assures the shipper of the same right to declare excess value in non-Warsaw situations.
Our second problem with the latest amendments to Resolution 600b is the addition of language to the Notice on the face of the air waybill and similar language to paragraph 7 on the back which may be interpreted by carriers, shippers and the courts as expanding the applicability of the Warsaw Convention to carriage not heretofore considered covered by its provisions, and which could cause great uncertainty over its application.
IATA indicated in its justification that the proposed language was prompted by "recent court decisions" interpreting Articles 8 and 9 of the Warsaw Convention. Article 8 of the Convention requires, inter alia, that the air waybill shall contain various particulars, including "the agreed stopping places." Article 9 of the Convention provides that if the waybill does not contain these and other particulars, the carrier shall not be entitled to avail itself of the provisions of the Convention which exclude or limit its liability. Apparently, IATA is concerned that courts may deny the carriers the Warsaw limits on their liability unless they list all intermediate points that might be used for any type of stop or else incorporate language such as that proposed which arguably makes any stop selected by the carrier one agreed to by the shipper.
If this is indeed IATA's position, we do not share its premise or agree with its interpretation of the proposed language. In the context of cargo service, whose hallmark is routing flexibility which benefits shippers as well as carriers, the language proposed by IATA is not objectionable from an operational standpoint, and we therefore approved it on that basis by Order 94-7-17 in the context of amendments to Resolution 600b(II). In this sense, the language is merely an elaboration of the right of the carrier under the waybill to determine the routing of the shipment.
However, it is neither necessary nor appropriate to construe the proposed language as broadening the meaning of "agreed stopping place," as that term is used in the Warsaw Convention, where it appears not only in Article 8 but also in Article 1. Article 1 confines the applicability of the Convention itself to carriage between at least two contracting parties or within one contracting party if there is an "agreed stopping place" in another jurisdiction, whether or not it is a contracting party.
One of the primary goals of the Convention was legal predictability, and that goal would be undermined if "agreed stopping place" in Article 1 had been intended to encompass all possible routings rather than just those expressly agreed to by the shipper and entered on the waybill. Such an interpretation would mean that the determination of many important contractual rights of both carriers and shippers would depend on operational vagaries which may not reflect assent by either party for jurisdictional purposes and, indeed, which may engender wasteful litigation over the facts of individual routings which deviate from points specified on the waybill.
We will approve IATA's language as proposed in CSC(16)600b, but only upon the condition that its reference to intermediate points does not constitute an "agreed stopping place" for purposes of jurisdiction under Article 1(2) of the Warsaw Convention." We similarly clarify that our approval in Order 94-7-17 of amended paragraphs 8./8.1 and 8.2 of Resolution 600b(II), submitted in Docket 49595, is based on the same understanding.
Acting under Title 49 of the United States Code, as amended, ("the Code") and particularly sections 40101, 4013(a), 41308 and 41309:
ACCORDINGLY,
PATRICK V. MURPHY Acting Assistant Secretary for Aviation and International Affairs(SEAL)