THE RIGHTS OF AIRLINE PASSENGERS
TRAN 105

FOOTNOTES

1. Safety is without doubt a fundamental concern of the air traveller, but it is not dealt with in this document, partly because the aim is to focus on the traveller's "financial" rights, and partly because safety is a problem of the whole sector that also affects its employees and the whole of society because of the possible involvement of persons and property on the ground when air incidents occur, incidents which may often be very serious.

2. The term traveller has been used in preference to passenger because the latter refers essentially to the stage at which the transport service reaches fruition, whereas the former includes users throughout the various phases of travel, as from the point of reservation; as we will see, this poses a number of problems regarding the traveller's rights.

3. These, being paid on a commission basis tied to the ticket price, may be inclined not to provide the public with full information on the more economical travel possibilities.

4. PE (DG IV), "Protection of Tourists", Working Document, Transport Series, W 12, 1995.

5. Computerized Reservation Systems.

6. Global Distribution Systems.

7. This table has been produced on the basis of data contained in the IATA's World Air Transport Statistics, Geneva, 1997, pages 8-10.

8. The main differences are as follows: the greater size of the US market; shorter "internal" flights in Europe; a more developed "charter" market in Europe; CRSs belonging to a single company in the USA, while in Europe they belong to a number of companies; intermodal competition over middle distance routes in Europe; greater public ownership of airlines in Europe.

9. The characteristics of air transport in the USA are taken from PE-DG IV, "Social consequences of deregulation and liberalisation in the transport sector", Working Document, Transport Series, TRAN 101, 1997, pages 38-46.

10. Cf. preceding endnote with regard to source. The percentages refer to kilometres per passenger.

11. This paragraph is based largely on the TTI (Travel & Tourism Intelligence) report, "Charter airlines in Europe", in Travel and Tourism Analysis, 1995, No. 4, pages 4-19.

12. Groevenenge A.D., Compendium of international Civil Aviation, IATA 1996, page 365. The definition quoted here is that of the Charter flight entry in the glossary which in English reads: a revenue flight for a specified purpose and not listed in a published timetable.

13. In the USA it is more common to use the expression indirect air carrier.

14. Programmed flights, i.e. published in an official timetable, are referred to as scheduled flights, and the others as non-scheduled flights.

15. Flight-only or seat-only.

16. TTI, charter's airlines in Europe ..., cit. pages 8-9, which contains data on the British market (as a market of departure): between 1993 and 1994 the increase in charter flights within the EU was 18.2%, and for flights to the rest of the world the increase was 11.8%. The markets in the other departure markets of northern Europe were in line with the British results.

17. This section is based largely on the TTI report, "No-frills airlines in Europe", in Travel and Tourism Analysis, 1996, No. 3, pages 4-19. This report looks at three commercial cases: Ryanair, Easyjet and EBA Express, now Virgin Airlines.

18. In fact the term normally used to refer to these companies is an abbreviation of the slogan " low cost, no frills".

19. TTI (Travel & Tourism Intelligence), No-frills airlines in Europe ..., cit., page 10.

20. Regarding ticketless travel see the thorough treatment of this in the next chapter.

21. This is the ratio between the highest EBA fare on the Brussels-Rome route and the highest Sabena/Alitalia fare; the ratio between the corresponding less expensive fares is 1:3.5.

22. PE (DG IV), "Protection of Tourists", Working Document, Transport Series, W 12, 1995, page 12.

23. For example, apex fares require that at least a Saturday night is spent at the place of destination.

24. Council Reg. No. 2407/92 of 23 July 1992, on the licensing of air carriers, in OJ [Official Journal of the European Communities] L 240, 24.8.92, p. 1.

25. Council Reg. No. 2409/92 of 23 July 1992, on fares and rates for air services, in OJ L 240, 24.8.92, p. 15.

26. Council Reg. No. 2408/92 of 23 July 1992, on access of Community air carriers to intra-Community air routes, in OJ L 240, 24.8.92, p. 8.

27. The part of this section devoted to consumer policy is taken from PE, Factsheets on the European Union, 1997, factsheet No. 4.10.1.

28. Council Dir. No. 90/314 of 13 June 1990, in OJ L 158, 23.6.90, p. 59.

29. Council Reg. No. 2299/89 of 24 July 1989, in OJ L 220, 29.7.89, p. 1.

30. Council Reg. No. 295/91 of 4 February 1991 establishing common rules for a denied-boarding compensation system in scheduled air transport, in OJ L 36, 8.2.91, p. 5.

31. The subject of this chapter is the marketing of transport services, apart from reservation which is covered in the next chapter. In this chapter we examine the areas of ticket management, fares policy and advertising policy.

32. The matters considered below are based on information obtained verbally and in confidence from certain European airline companies.

33. These instruments are not used only in connection with travellers, but also for travel agents who may be given benefits on top of their normal commission, depending on the number of tickets sold.

34. PE (DG IV), "Tourist Protection", Working Document, Transport Series, W 12, 1995.

35. Definition in English used by the IATA and taken from the entry for ticket (tkt) in the glossary of aeronautical terms in A.D. Groevenenge's Compendium, ... cit., page 516. The text between speech marks is taken from the same entry.

36. For a more detailed treatment of this Convention, which is concerned primarily with the liability of carriers to passengers, see the last chapter in this document. The facts illustrated in the text are taken from Articles 3 and 4 of the Warsaw Convention, in the form adopted following the amendments introduced by The Hague Protocol of 1955.

37. Billet de passage, to give it the title used in the French version of the Warsaw Convention.

38. Bulletin de Bagages, to give it the title used in the French version of the Warsaw Convention.

39. Regulation 2027/97 has made the Warsaw Convention compulsory for Community and Community airline traffic with important additions solely in the area of carrier's liability, and does not make any mention of ticket management.

40. This section and the next are based largely on PE (DG IV), "Logistical systems in combined transport", Working Document, Transport Series, TRAN 102, 1998.

41. The IATA Passengers Forms and Procedures Committee is the body within this international association of companies with responsibility for drawing up recommendations in order to simplify and improve both manual and computerized ticket management. A significant part of these recommendations has been drawn up in agreement with the ATA ( Air Transport Association of America). In the area of ticket management we would refer the reader, in particular, to the series of 17 resolutions, from No. 721 to No. 725d, occupying 372 IATA pages, Passengers Services Conference Resolution Manual, Montreal-Geneva 1997 ¹⁷, page 1216. In view of their specifically technical and operational nature, these are not illustrated here.

42. A stopover (STPVR) is a deliberate break in a journey, made by a passenger at a point between his place of departure and destination, and agreed in advance with the carrier. It is provided for in Article 4 of the IATA's GCC (General Conditions of Carriage).

43. In other cases it is a fax of confirmation containing the travel details.

44. A variation of this system is the system of prepaid coupons which are normally issued at special rates, for a given route.

45. At Frankfurt am Main Airport the boarding time using chipcards is 20 minutes, compared with 30 to 45 minutes using other systems.

46. Cf. Chapter IV.

47. In all Community countries the travel agencies represent a percentage of subscriptions which is in general greater than 60% of the total and in many cased higher than 80% (PE (DG IV), "Logistical systems in combined transport", Transport Series, TRAN 102, 1997, page 287). In Europe 90% of reservations are made through the GDSs and travel agencies, while in the USA 60% are made by telephone ( No-frills airlines in Europe ..., cit., page 10).

48. TTI (Travel & Tourism Intelligence), No-frills airlines in Europe ..., cit., page 10.

49. It is calculated that in the USA 30 million people are involved in FFPs and that each of them takes part in an average of 4.6 FFPs

50. TTI, "Frequent Flyer Programme", in Travel and Tourism Analysis, No. 3, 1993, pages 5-19.

51. The most serious case quoted is that of PANAM.

52. TTI, "Frequent Flyer Programme", cit. ..., page 10.

53. We would mention the example of a pharmaceutical company which offered doctors the incentive of air miles in an FFP operated by an airline company.

54. The obstacles to entry do not affect only the new companies, but also have an effect on the introduction of new air services by existing companies when, through its FFP, a company already operating in the towns connected by the new service has gained the loyalty of the local residents.

55. At least up to the date of the article from which this information was taken: TTI, "Frequent Flyer Programme", cit. ..., pages 5-19.

56. Ibidem, page 13.

57. The first European company to launch an FFP was BA, in 1991. This was for three basic reasons: competition with the no-frills airlines; the opening up of the US FFPs to non-residents, and to British travellers in particular; and the alliance between BA and USair which made it necessary for BA to come into line with its US partner.

58. This table is reproduced from TTI, "Frequent Flyer Programme", cit. .., page 8, which in turn obtained the data from IATA, Corporate air travel survey, 1993.

59. For example: more comfortable seats, sometimes supplemented with added services, and/or better meals.

60. That is to say the scope for use of the ticket or for changing the date of travel, or even for claiming a refund in the event of cancellation.

61. The illustration that follows is the result of explanations given to the author verbally by those responsible for sales at the Brussels offices of various European airline companies. It is significant of the confidential nature of this subject that, when asked for written information, the companies said they would prefer personal meetings.

62. Usually three: First, Business and Economy.

63. In the following section they are given their legal definition under Community law, which is taken into account for the purpose of controlling fares.

64. For example, Apex and Pex.

65. Regulation 2409/92/EEC of 23 July 1992 on fares and rates for air services in OJ L 240, 24.8.92, p. 15 which replaced the earlier Regulation 2343/90 on the same subject. The European Community first concerned itself with air fares in 1987 with Directive 87/601/EEC, later repealed by the regulations of 1990.

66. The fares for these flights are usually governed by the specific provisions of bilateral agreements entered into for this purpose.

67. The Member States between which, or within which (in the case of national flights) the fares apply. Normally these will be the Community States of departure and arrival for a given route, and those in which there are stopovers involving the embarkation and disembarkation of passengers.

68. The forms and terms are fixed by the Member State concerned and the latter may not be more than 24 hours. In the case of compliance with existing fares, instead of registering the fares prior notification is required.

69. This is the lowest fully flexible fare, either one way or return, offered for sale at least to the same extent as any other fully flexible fare offered for the same service (Article 2(K) of the Regulation) .

70. The State that has issued the licence to the carrier.

71. Cf. section 4 of this chapter.

72. The data presented in this section is taken from the Commission's Communication, Impact of the third package of air transport liberalization measures, Com (96) 514, and pages 3-7 in particular, and from the arguments of the report of the European Parliament's Committee on Transport and Tourism (A4-15/98) on the aforesaid communication, page 9-10, which in turn quotes from British Midland, Clearing the flight path for competition, no further details.

73. Commission Communication, The impact of the third package ..., cit., page 6.

74. These definitions are taken from Article 2 of Regulation 2299/89, dealt with in detail in the following section. These may also be used outside the legal context and the Community context. The reader's attention is drawn to the fact that the initials CRS may be replaced by SIR.

75. Initially through a process of agreements, and then through mergers between CRS management companies participated in by the major air companies; this is the situation, one that still prevails, to which reference is made by both US legislation and the Community legislation illustrated in this document.

76. These will be referred to in part in the following sections, and in particular in section 5. Anyone wishing to examine more closely the questions of competition between the two sides of the Atlantic can consult Humphreys B., Les nouveaux développemnts des SIR - New developments in CRSs, ITA (Institut du Transport Aérien), Paris, 1994.

77. Ibidem, pages 77-85, which also refers to the UK House of Commons, Airline Competition, Computerized Reservation Systems, Transport Committee Third Report, Session 87/88, in which the same position is maintained, except for the reference to the possible resistance of the airline companies.

78. This table is taken from PE (DG IV), "Logistical systems in combined transport", Working Document, Transport Series, TRAN 102, 1998. The overall percentage totals are lower than 100% because certain figures are rounded down.

79. Alongside these traditional shareholders there are also the railroad companies, tour operators and shipping companies, which promotes the extension of the GDS services to other forms of transport and to services that may be of interest to the traveller.

80. It is remembered that the US Department of Transport refused to authorise the merger between SABRE and DATAS II in 1990.

81. For the distinction between participating and parent companies, see below.

82. This advantage is more significant than it may appear, since statistics indicate that 80% of reservations involve flights presented on the first screen and 80% involve those shown in the first two rows.

83. Humphreys B., New developments with the SIRs ..., cit., page 49.

84. US. General Accounting Office, Computerized Reservation Systems. Action needed to better monitor the CRS industry and eliminate CRS biases, Washington DC, 1992, quoted in Humphreys B., New developments ..., cit., page 49.

85. This means of access also encourages the phenomenon of the virtual traveller, that is to say those travellers who want only to find out about travel possibilities but have no real intention of taking advantage of these. This is a phenomenon known also to travel agencies for whom the faster consultation times via the Internet have caused queues at their sites.

86. Council Reg. (EEC) No. 2299/89 of 24 July 1989 in OJ L 220, 29.7.87, p. 1, subsequently amended by Reg. 3089/93 of 29 October 1993 in OJ L 278, 11.11.93, p. 1.

87. The excerpts that follow are taken from Humphreys B., New developments ..., cit., page 54.

88. For a more detailed exposition of the events that preceded and coincided with the 1993 regulations, cf. Humphreys B., New developments ..., cit., pages 53-59.

89. During the course of informal talks that the author has had with representatives of certain airline companies, these have rejected the view that the decision to sell the stockholdings in the GDSs was due to the reason stated in the text; indeed they could not have done otherwise without having to admit that in the past they had enjoyed an unfair advantage. But the author's view is shared by other commentators, including the already quoted Humphreys B., New development ... cit., p. 81.

90. An air carrier may therefore subscribe to more than one CRS.

91. Departures from this ban are permitted in the case of CRSs that have been recognised as responsible for infringement of the provisions of the code of conduct relating to the equal treatment of carriers, or that are unable to provide adequate guarantees in terms of unauthorised access to information by their parent carriers.

92. The period of notice for withdrawal for subscribers is three months, following a minimum term of one year.

93. With the usual exceptions in the case of a request from consumers.

94. European Commission, Report on the application of Council Regulation (EEC) 2299/89 establishing a code of conduct for computerized reservation systems (SIR = CRS), Com. (97) 246, pages 6-9. The same document also contains the proposed modification of the code of conduct currently being examined by Parliament.

95. Ibidem, pages 9-11.

96. Here, and hereinbelow, we are referring to the proposal contained in the aforesaid Com. (97) 246. The Commission's proposal also relates to the extension of the CRSs to rail transport, an area outside the scope of this document.

97. The practice of multiple bookings is required by a traveller wishing to retain the option of choosing the best flight combination for as long as possible, by reserving more than one. Airline companies are now tackling this by automatically cancelling reservations when they become aware of such instances.

98. 15 May 1998 (A4-89/98).

99. Council Communication Pres/98/207. At the time of writing this paragraph (23.7.98) the common position of the Council is not known.

100. Regarding injuries and lost luggage, cf. the next chapter.

101. For example, when the scheduling of the flights of an individual aircraft mean the minimum time on the ground between consecutive flights, thereby creating chain reactions in terms of subsequent flights.

102. European Parliament resolution of 16 November 1995 on the Commission's Communication on Congestion and crisis in Air Traffic (Com/95/318). The European Parliament approved these resolutions, taking into account the experience of that same summer when the unexpected air traffic controllers' strike at a single control station in southern France disrupted the whole transport system of the western Mediterranean.

103. According to IATA data, the number of flights delayed by over 15 minutes, after peaking in the early 1990s, has fallen back to 1986 levels, Ibidem, page 4.

104. Observations taken from the Eurocontrol/ECAC graphs, Delays to air transport in Europe - Annual Report 1997, typed document, page 9.

105. There are no statistics on this phenomenon. The BEUC mentions the case of an airline company which admits to covering one quarter of its seats by means of overbooking. In BEUC comments on the consultation document on a proposal for a Council Regulation amending Regulation (EEC) No. 295/91 ..., unpublished document BEUC/121/97 of 10.4.97, page 2.

106. These passengers are referred to as no-shows.

107. If it were managed separately from fares, this would create problems.

108. It is important to concentrate on technical reasons for cancellations, because a cancellation for commercial reasons (i.e. too few passengers) is a deliberate course of action which necessarily results in the overbooking of another flight in order to avoid liability for default in the case of denied boarding. In this case there will still be liability for delay in that the passenger will reach his destination after the scheduled arrival time for the cancelled flight.

109. This is the Convention on the unification of certain rules relating to international air transport of 1929, while The Hague Protocol dates back to 1955. Almost the whole of the next chapter is devoted to the Warsaw Convention, and the reader is referred to that for a fuller treatment.

110. L'adempimento non tempestivo del contratto di trasporto aereo. [the Italian equivalent is given here]. This definition is taken from Giemulla, Schmidt, Ehlers, Warsaw Convention, (Commentary, London, The Hague, Boston (Kluver), 1994, Article 19, I, 1.

111. Though I do not believe this has been laid down specifically in legal practice and theory, it seems clear that, in addition to a reservation, the purchase of the ticket is a necessary condition for a flight time to be taken as a reference parameter in determining a delay.

112. Giemulla, Schmidt, Ehlers, Warsaw Convention ..., cit. art. 19, II. 6, though this cites legal cases in support of excluding carrier liability when a flight is not scheduled and there are no agreements, on flight duration, between carrier and passenger.

113. Ibidem, art. 19, II, 6.

114. Ibidem, art. 19, II. 7. The tolerable delay, according to this table, would be 25% for a flight duration of one hour (i.e. up to 15 minutes), 20% for a flight of between 2 and 4 hours (in that case converted into an agreed delay of 24-30 minutes), and 10% for flights of 5 to 8 hours, this being agreed in the range 30-48 minutes.

115. Ibidem, art. 19, II.1.

116. The definition of the term tolerable adopted here is that of Giemulla, Schmidt, Ehlers, Warsaw Convention ..., cit. art. 19, II, 9, which with regard to passenger transport mentions four cases: that illustrated in the preceding endnote (of a fairly unexceptional nature) and three of 11, 8 and 61 hours respectively.

117. Of interest with regard to delays due to waiting for connections is Corbeil-Esson's Tribunal de Commerce which defined as intolerable a one hour forty minute delayed departure of a national flight caused by waiting for an international flight. Ibidem, art. 19, II, 9, which in turn quoted the Jardan -v- Air Inter judgment, also referred to by Shawcross and Beaumont, VII-198, N. 7

118. Airline company personnel generally give technical reasons for cancellations and overbooking in order to preclude the company's liability.

119. Naturally if the replacement flight, taking off later, should arrive at the destination within the time contemplated for the original flight, one cannot talk of a delay

120. Giemulla, Schmidt, Ehlers, Warsaw Convention ... cit., art. 19, X, 33, which only refers to two conflicting German judgments.

121. Ibidem, art. 19, II, 33.

122. This case is distinct from co-sharing in which the possibility of a flight being operated by a different carrier from that indicated on the ticket is known at the time of making the reservation.

123. Some cases one cannot help but find amusing. Leaving aside those involving black humour, there is the case of boarding being denied to a female passenger who fell to pieces when told at check-in that she could only take one of her four dogs into the cabin with her. This refusal was regarded as legitimate by a US court. Giemulla, Schmidt, Ehlers, Warsaw Convention ..., cit. art. 19, II 38.

124. Cf. the end of the following paragraph.

125. These general conditions are contract clauses drawn up by one party. Each airline company, even those belonging to the IATA, may choose not to apply them. These are dealt with in greater detail in the next chapter.

126. The text that follows is our translation from the French, taken from IATA, General Transport Conditions/passengers and luggage, Montréal-Geneva, 1988.

127. Giemulla, Schmidt, Ehlers, Warsaw Convention ..., cit. art. 19, II referring to a large number of French and German judgments.

128. Art. 20 of the Warsaw Convention.

129. Art. 23 of the Warsaw Convention.

130. Reg. 2027/97 of 9 October 1997 in OJ L 285, 17.10.97, p. 1.

131. In OJ L 36, 8.2.91, p. 5.

132. The term "confirmed reservation" means confirmation shown on a sold ticket which indicates the flight number, date and time and displays the letters "OK" or an equivalent endorsement.

133. That is to say a passenger who, at the carrier's request, gives up a reservation and accepts compensation.

134. Article 3, paragraph 4, of the regulations.

135. The term "final destination" means the destination stated on the ticket and, if this consists of a number of sections, the destination stated on the coupon for the last flight, disregarding any connections that may be made without problems, even if denied boarding causes a delay.

136. These sums are reduced by half if the carrier offers an alternative flight whose arrival at the final destination is not more than two or four [hours] later than the scheduled arrival time of the flight on which the seat was originally reserved, depending on whether the flight is more or less than 3500 kilometres.

137. There are specific regulations governing the repayment of tour operators who, with respect to their customers, have the responsibilities laid down in the directive on all-in travel.

138. Com 98/41.

139. 17 July 1998.

140. This regulation is very important because it protects the passengers using all air traffic within the Union, with the exception of flights into the Union by non-Community carriers. Community airlines will only accept application of this regulation to their flights which do not have the Union as their final destination, that is, a very limited number of flights.

141. Without excluding other valid reasons, the text, as the regulations in force, expressly mentions people with limited mobility, and unaccompanied children.

142. The concepts adopted here are taken from Groevenenge A.D., Compendium ..., cit., page 316 and page 321.

143. An example of non-catastrophic accident is one recounted to the author by a former officer of a liable airline company. On a certain aircraft, during a long ocean crossing, the crew switched over to automatic pilot, and contrary to regulations, took a break together. Being distracted, they did not notice an unexpected air pocket which caused fractures to many of the passengers who were not warned to fasten their seat belts.

144. The other column is the Chicago System.

145. As we will see below, there are international agreements which do not apply to all contracting parties of the Warsaw Convention, inter-company agreements (for example on routes to the USA), and which are superimposed on the System; relating more directly to the European Union, the commendable Reg. 2027/97 was recently introduced to provide Community carriers with a uniform application of the Warsaw Convention, adjusting its limitations.

146. This Convention, the original French title of which is used in the text, came into effect on 13 February 1933, and on 20 March 1997 was ratified by 138 States.

147. The following points are taken from Zylicz M., "International air transportation law", Utrecht studies in air and space law, Dordecht, Boston, London (NISER) 1992, page 90, which in turn quotes from Tobolewesky A., Just say no to the limitation of liability in air law, paper distributed during the ICAO 27th Session, 1989, pp. 2-3.

148. These, for instance, were the reasons adopted by the US Government when it presented its bill to Parliament for ratification; in Senate Comm. on Foreign Relations Message from the President of the United States transmitting a Convention for the Unification of Certain Rules, Sen. Exec. Doc. No. G, 73rd Cong., 2nd Session, 3-4 (1934), quoted by Giemulla, Schmidt, Ehlers, Warsaw Convention ..., cit., page 2.

149. Article 25 of the Convention, to which reference is made, reads as follows: " ... out of its fraud or a fault which, pursuant to the law adopted by the court involved, is regarded as equivalent to fraud". The legal theory in English speaks of wilful misconduct.

150. At 20 March 1997.

151. Cf. paragraph 4 of this chapter.

152. The conditions for the convention coming into force are ratification by at least 30 States, and the fact that the regular international traffic of 5 of these, expressed in terms of passengers x kilometres, is equivalent to at least 40% of the total on the basis of the ICAO statistics for 1970. This second condition makes ratification by the USA a requirement, and this has not yet been obtained.

153. On the basis of this settlement inducement clause (Article VIII of the Protocol) the costs of the legal action, including solicitors' fees, are repaid to the claimant who has submitted his written claims, if within six months the company has not submitted a written settlement proposal at least equivalent to the compensation that may be granted within the applicable limit.

154. This is a right granted to States which have the power to complete the compensation payable for death of, or injuries to, passengers by means of a fund built up from contributions made by passengers and by the State, or by means of compulsory supplementary insurance cover which must not create any form of discrimination between carriers.

155. Denmark, Spain, Ireland, Italy, the Netherlands, Portugal, Sweden, Finland, the United Kingdom. France has signed them, but not ratified them; Belgium has signed only the fourth.

156. Cf. section 7 of this chapter.

157. In this section I attempt to illustrate the Warsaw System overall, not only in the form laid down in the " 156Convention as amended in The Hague in 1955 and in Guatemala City on 1961" in accordance with the formula introduced by the second of these protocols, but also with the additions introduced by the other acts referred to in the preceding section.

158. The Convention also applies when the State of departure and the State of Destination are the same, provided the flight makes at least one scheduled stop in another State.

159. Giemulla, Schmidt, Ehlers, Warsaw Convention ..., cit. page 24.

160. In the preceding chapter we have already seen how the IATA's CGG attempt to categorise cancellation under the heading of delay in order to place all forms of non-fulfilment under the umbrella of the Convention.

161. The complementary nature of the national law is also the result of limiting the Convention to certain rules.

162. For the European Union national law also includes Community law.

163. Giemulla, Schmidt, Ehlers, Warsaw Convention ..., cit., page 21.

164. However, the criterion of common law is a controversial one in the jurisprudence of States, according to Giemulla, Schmidt, Ehlers, Warsaw Convention ..., cit., page 21, referred to by Kegel. However Giemulla ( Ibidem) cites German regulations and case law which prefers this criterion to that of lex loci.

165. Giemulla, Schmidt, Ehlers, Warsaw Convention ..., cit. pages 22-23.

166. Article 17 of the Warsaw Convention, amended by The Hague Protocol.

167. For the sake of completeness, I would point out that the regulations regarding air carrier's liability for damage to baggage also apply to the carriage of goods.

168. Article 18 of the Warsaw Convention, amended by The Hague Protocol.

169. Article 19 of the Warsaw Convention, amended by The Hague Protocol.

170. Article 20 of the Warsaw Convention, amended by The Hague Protocol.

171. Article 21 of the Warsaw Convention, amended by The Hague Protocol.

172. The Gold Franc, or Poincaré Franc, is equivalent to 65.5 milligrams of gold of 900% standard.

173. On the basis of Montreal Protocol Supplement No. 1 of 1975. The SDRs are a basket of five currencies (US dollar, German mark, yen, pound sterling, French franc) created and managed by the International Monetary Fund.

174. Article 25 of the Warsaw Convention, amended by The Hague Protocol.

175. The Guatemala City Protocol and those of Montreal, Nos. 3 and 4, have not yet come into effect. For a correct comparison between various sums, it is necessary to bear in mind that the 250,000 Gold Francs regarded as the maximum limit for personal injuries, currently in force, corresponds to 16,600 SDRs, in contrast with the 100,000 SDRs laid down by the Montreal Protocols for the same damages.

176. An example of the complexity of a legal case involving civil liability following an air accident is that illustrated by M. Zylicz (in International air transportation law, op. cit., footnote 147, page 95) to provide evidence of the problems posed by the limits on civil liability: in the case against a Polish airline before a US court, the civil party sought to have a summons served on the aeronautical firm that had built the aircraft involved in the accident, on the company that exported it to Poland, and on Aeroflot, as operator between the USSR and the USA, all the Soviet companies and the Soviet State itself as their owner.

177. Guldimann W., The Warsaw Convention of 1929: its past - its present - its future, document presented to the IATA's 45th General Assembly Meeting, Warsaw, October 1979, page 2, quoted by Zylicz M., International air transportation law, op. cit., endnote 147, page 90.

178. Zylicz M., op. cit., endnote 147, page 93.

179. Just say no to the limitation of liability in air law, document distributed at the 27th Session of the ICAO Assembly, 1989, and quoted by Zylicz M., International air transportation law, op. cit., endnote 147, page 95.

180. IFAPA, Fair compensation for passengers in aircraft accidents: actions for the 90s, study for the Dutch Ministry of Transport, 1989, and quoted by Zylicz M., International air transportation law, op. cit., endnote 147, page 95.

181. Zylicz M., op. cit., endnote 147, page 94. This author, quoting from the opinion of experts, states that the additional cost for unlimited insurance cover should be kept below five dollars.

182. Circular letter on the "Warsaw System", enclosure to the State letter LE3/27, 3/28-91/3 of 16 January 1991, referred to by Zylicz M., International air transportation law, op. cit., endnote 147, page 98.

183. Zylicz M., International air transportation law, op. cit., endnote 147, pages 97-102.

184. Ibidem, page 103, though it must be noted that Zylicz is numbered among the supporters of revitalisation of the Warsaw System, and in his writings expresses perplexity at a new convention which would take too long.

185. The data relating to individual countries is taken from Attachment I of the Commission's proposal, Proposed Council regulation on air carrier liability in the event of accidents (COM/95/0724).

186. In some cases the values expressed in national currencies are close to 100,000 SDRs based on the exchange rate of 2 July 1998 (available on website http://www.imf.int when this section was written), while others are significantly different. In view of the constraints on this document, it was not considered necessary to ascertain whether there was convergence at the time when the various national laws were approved.

187. IATA, Passenger services conference ..., cit., page 881.

188. This was filed with the US Civil Aviation Board: No. 18900 of 13 May 1966, US Federal Register, Vol. 31 (1966), 7302.

189. The complete title is Agreement between IATA carriers on liability to passengers.

190. Article 7 of Council Regulation 2407/92 of 23 July 1992, on licensing of air carriers in OJ L 240, 24.8.92, p. 1.

191. Regulation 2027/97 of 9 October 1997 in OJ L 285, 17.10.97, p. 1.

192. Cf. Chapter II, section 8.

193. The term EUR-OP here, and elsewhere, refers to the Office for Official Publications of the European Communities.

© European Parliament: 1999