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Senate Treaty Document 107-14, Protocol to Amend the Convention for Unification of Certain Rules Relating to International Carriage by Air, done at The Hague September 28, 1955 (The Hague Protocol). Summary Part [Note: This summary is in two parts. Part I is an excerpt from the Secretary of State's transmittal letter. Part II is an excerpt from the Senate Executive Report.] (Excerpt from Senate Executive Report 108-8, the 110-page Senate Foreign Relations report to accompany Treaty Document 106-45 and Treaty Document 107-14): I. PURPOSE

These treaties establish rules governing liability arising from international air carriage. This includes liability arising from injuries and deaths to persons, as well as damage to, or loss of, baggage and cargo, that occur in connection with international air carriage.

II. BACKGROUND

The Convention for the Unification of Certain Rules for International" Carriage by Air (Treaty Doc. 106–45) (hereinafter "the Montreal Convention"); and the Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on October 12, 1929 (Treaty Doc. 107–14) (hereinafter "the Hague Protocol") both address liability arising from international air carriage.

Montreal Convention

The Montreal Convention establishes a comprehensive regime governing liability arising from international air carriage. It is intended to replace the current patchwork set of liability regimes in this area, which include the 1929 Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air, various protocols to that Convention, and voluntary agreements among air carriers. The Warsaw system, as it is known, has long been considered antiquated in several respects. The new Montreal Convention represents the culmination of decades of efforts by the United States and other countries to establish a regime providing increased protection for international air travelers and shippers, and modern and efficient procedures reflecting developments in the aviation industry.

Hague Protocol

The Hague Protocol amends the 1929 Warsaw Convention that the Montreal Convention is designed to replace. Until the Montreal Convention gains wide adherence, the Warsaw system will remain in place between many countries. Accordingly, the Committee recommends that the Senate advise and consent to the Hague Protocol so that U.S. passengers, shippers, and air carriers, in this interim period, may take advantage of some modern elements of the protocol, especially those relating to the carriage of cargo. At present, there is uncertainty about whether the United States is a party to the Hague Protocol. This uncertainty arises, in part, from the confusion that results from the patchwork nature of the Warsaw system. The 1929 Warsaw Convention has been amended by a series of protocols. Some countries are parties only to the Warsaw Convention; others are parties only to particular protocols amending the Convention. Recent litigation in federal court has highlighted this confusion. In 2000, the U.S. Court of Appeals for the Second Circuit held in Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301 (2d Cir. 2000), cert. denied, 533 U.S. 928 (2001), that the United States and South Korea did not have treaty relations with respect to international air carriage rules because the two countries were not parties to common pieces of this regime.

Ratification of the Hague Protocol will serve to clarify treaty relationships immediately with a number of countries with which the status of our treaty relationships under the Warsaw system may be unclear in light of the Chubb case. This includes countries with which we may have no treaty relationships at present. It also includes countries with which our only current treaty relationship may be the relatively antiquated 1929 Warsaw Convention, unamended by any of the subsequent protocols. With respect to this latter group of countries, ratification of the Hague Protocol is useful because the Protocol streamlines the Warsaw Convention ' s cumbersome documentation requirements for cargo transportation. In the short- term, having cargo shipments to and from such countries governed by the Hague Protocol rather than by the unamended Warsaw Convention will benefit shippers.

The relevance of the Hague Protocol will wane as more countries become parties to the Montreal Convention, which provides updated rules governing air carriage. Where two countries are parties both to the Montreal Convention and to prior conventions governing international air carriage, the Montreal Convention, by its terms, supersedes the earlier instruments. The Committee hopes that United States ratification of the Montreal Convention will serve to encourage other countries also to become parties to it. The Committee encourages the Administration to undertake active diplomatic efforts to promote further ratifications.

III. SUMMARY OF KEY PROVISIONS OF THE TREATIES

A detailed article- by- article discussion of these treaties may be found in the Letters of Submittal from the Secretary of State to the President, which are reprinted in full in the respective Senate Treaty Documents. A summary of the key provisions of the treaties is set forth below

[NOTE: Discussion of Montreal Convention has been omitted from this GLIN summary.]

THE HAGUE PROTOCOL

The Protocol amends the 1929 Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air. These instruments address the same subject matter as the more recent Montreal Convention discussed above.

The Hague Protocol streamlines the Warsaw Convention's documentation requirements for international carriage of passengers, baggage, and cargo by limiting the information required to be included in cargo airway bills, passenger tickets, and baggage checks. It also narrows the circumstances under which failure to comply with such documentation requirements related to carriage of cargo would preclude the application of relevant carrier liability provisions. The Protocol also generally permits plaintiffs to recover court costs and other expenses of litigation they incur in connection with pursuing claims under the Warsaw Convention as amended. The Hague Protocol also amends Article 25 of the Warsaw Convention, which allows plaintiffs to exceed the liability limits of Article 22 under certain circumstances. Under the Warsaw Convention, the liability limits may be exceeded if it is proved that the damage is caused by the " willful misconduct " of the carrier. Under Article XIII of the Hague Protocol, the " willful misconduct " standard was modified with a description of the conduct itself. The Committee developed a record on this matter in an exchange of questions with the Executive Branch during the review of the Montreal Protocol No. 4 in 1998. See S. Exec. Rept. 105 – 20, at 47, 52- 53. This provision of the Hague Protocol is, however, unlikely to have much substantive effect on future litigation in the United States, because most carriers flying to and from this country are signatories to the 1996 inter-carrier agreements in which, by contract, the carriers waived the liability limits of the Warsaw system.

IV. IMPLEMENTING LEGISLATION

No implementing legislation is necessary for either the Montreal Convention or the Hague Protocol.

Date of Senate advice and consent: 31/07/2003 by Division Vote