International Air Cargo & Baggage Liability and the Tower of Babel

Then the Lord said, now, while they are one people, all speaking the same language, they have started to [build the Tower of Babel], nothing will later stop them from doing whatever they presume to do. Let us then go down and there confuse their language, so that one will not understand what another says. Genesis 11:6 I. INTRODUCTION From its inception in the late 1920s, the overriding purpose of private international aviation law has been to create uniformity of law across jurisdictions-to erect, in effect, a single Babylonian temple in which all disputes would be resolved uniformly no matter where they arose. A unified liability regime was indeed created by the world community in the Warsaw Convention of 1929.' Over the ensuing decades, efforts to update this legal regime have led to fragmentation rather than unification, with different nations adhering to differing versions of the Warsaw Convention and its various reformulations. Today, the question of which law to apply-an issue of tremendous importance to the resolution of aviation loss and damage disputes-is anything but uniform or simple. In order to determine which international or domestic liability regime to apply, one must assess whether the air transportation in question was international in character. If so, the international liability regime governing the origin and destination States will apply, provided the two States have ratified the same treaty. At this writing, there are numerous possibilities: * The original Warsaw Convention of 1929, unamended;a * The Warsaw Convention as amended by the Hague Protocol of 1955;3 * The Warsaw Convention as amended by the Guadalajara Convention of 1961 ;4 * The Warsaw Convention as amended by Montreal Protocol No. 4 (MP4) of 1975;5 * The Montreal Convention of 1999/' or * Domestic law, if it is deemed that the transportation falls outside the Warsaw regime or if the two relevant States have failed to ratify the same liability convention.7 The first four of these shall be referred to herein as the Warsaw regime,8 as the Hague Protocol, the Guadalajara Convention, and Montreal Protocol No. 4 (MP4) attempted to build liability rules upon the foundation of the original Warsaw Convention. For the United States, effective March 4, 1999, international aviation cargo liability law became governed by the original Warsaw Convention, as amended by the Hague Protocol, as amended by MP4. Then, on November 4, 2003, the United States became subject to the Montreal Convention of 1999, which entered into force on that date. This Article addresses the complexity of international air cargo disputes. We begin with a review of the the origins and purposes of this private international law regime, and the historical evolution of law. This shall be followed by an examination of the plaintiffs, and then the defendant's, elements of proof. At the outset, it should be emphasized that most of the controversy arising around the Warsaw regime, and the inability of the world community to come to consensus as to what rules to apply, has resulted from the niggardly treatment of amounts recoverable for passenger liability. Hopefully, the recent entry into force of the Montreal Convention of 1999 will re-establish the international legal uniformity the Warsaw Convention of 1929 sought to achieve, though for a transitional period at least, the courts of different nations will be applying different legal regimes. II. THE WARSAW CONVENTION & PROGENY A. Origins of Warsaw Legal rules of carrier liability in international air transport owe their origin to the efforts of a number of international aeronautical organizations in the 1920s, during the infancy of commercial aviation, to create a uniform legal regime, and shield carriers from potentially devastating aviation disaster damage awards. The First International Conference of Private Air Law was held in Paris in 1925. …

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