An increasingly globalized world coupled with significant changes in technology have stimulated the development of civil aviation. Aviation Law must reach the same momentum and become globalized in parallel in terms of achieving a well-functioning system. In fact, aviation law is recognized as an international law in many cases due to the nature of travelling by air. Pointedly, the membership of countries in international conventions that establish international aviation rules are the most critical factor. In order to maintain the secure and compatible development of international civil aviation in this area, there are conventions and organizations such as the International Civil Aviation Organization (ICAO) and the International Air Transport Association (IATA). Besides, aviation law features the characteristics of a branch of law that involves the rules of both public law and private law. The Convention on International Civil Aviation fairly forms the public law aspect of these rules, while the Warsaw Convention of 1929 and the complementary protocols of the Hague and Montreal form the portion which is concerned with private law. We hereby examine the carriers’ liabilities on freight and the concept of delay on the basis of international criteria due to the aforementioned reasons.
Within the scope of aviation law, “delay” is the amount of time (reasonable) more than the duration identified by the contract (air consignment note - air receipt) or announced on the time tables due to any reason and the failure to deliver the load/cargo in a timely manner should be regarded as a delay. On the other hand, a delay should be examined with reference to the entire transportation process. This point, in addition to the importance of the parties’ pre-contractual liabilities, the arrangement of the “air consignment note” or “air receipt” in line with the requirements and demands of the parties is of vital essence. Such that, Article 4/1 of the Montreal Convention of 1999 stipulates the compulsory issuance of the air consignment note (three copies).
The carrier’s execution of its liability is mandatory in the event of a performance delay; however such performance must be considered actual delayed performance. According to the Warsaw - Hague System and the Montreal Convention of 1999, the delay or cancellation of a flight is not regarded as a delay. Therefore, from this perspective, a delay is defined as the delivery of the load to the addressee later than the time identified in the terms of the contract1.
Damages incurred due to delays are defined as the damages, except for the loss of the load or damages to the load itself. The Warsaw - Hague System and the Montreal Convention of 1999 regulate the carriers’ liabilities on the loss or damage of the load and their liabilities regarding the delay separately. Regarding the load carriages executed within the borders of the country, the provisions of the Turkish Civil Aviation Law shall primarily apply2. Liability arises from either a contract or the law. It is not possible to alter the limitations of the liabilities stipulated by the Warsaw - Hague Agreements and the Montreal Agreement for the benefit of the carrier prior to the emergence of the damage with a contract between the parties3. To be more precise, conditions that have the quality to remove the carriers’ liabilities are invalid.
The carrier is liable for the damages occurred due to delays as long as the damages are caused by the delay. The liability of the carrier starts as he accepts the load as designated by the contract which is the transfer of the possession that is the complementarity component of the carriage contract. In this case, the carrier’s first primary obligation is to receive / accept the load. Delivery of the load to the carrier is the presumption of the existence of the carrier contract. Then again, the liabilities of the carrier regarding the attention and supervision of the load starts with the acceptance of the load and lasts until the moment of delivery of the load to the addressee. It is regarded that the process of the load’s carriage by air lasts until it is transferred to the possession of the addressee and therefore it is under the responsibility of the carrier untill then4. (The issue of whether or not the carrier is released from his liabilities in case the load is delivered to the customs authorities).
Another primary obligation of the carrier is the timely performance of the carriage. In addition to the Warsaw - Hague System, Turkish Civil Aviation Law established norms and created obligations with substantive provisions5. A delay may occur due to many different reasons. For instance, the carrier’s failure of the loading process at the identified place or time within the scope of the contract conditions or as the case may be constitutes a contradiction to the execution of the obligation and causes a default of the debtor.
The carriage contract can be qualified as a contract of work that undertakes the execution of the carriage in accordance with the contract stipulations or briefly a contract committing a conclusion6. The carrier shall never be relieved from his liabilities by proving that there are no faults on his side in the occurrence of the damage. To be relieved from his liabilities, the carrier is liable to prove that in order to prevent any damages either he or his employees have already adopted all necessary measures or that the adoption of such measures were not possible7. The carrier absolutely has to prove that he has actually and truthfully taken all essential precautions and that the prevention of the occurrence of the damage could not be managed despite these. By considering even exceptional circumstances, both the Warsaw - Hague text and the Turkish Civil Aviation Law enjoin the carrier to adopt all the measures in required scope and quality8.
To identify the damages due to delay, we need to start with a definition (the damages other than the loss of the load and/or damages over the load)9. The liabilities arising from the delay contain the loss of profit suffered by the addressee due to the delay, addressee’s losses arising from the non - performance of his commitments, the additional charges made for a substitute good that became compulsory instead of the expected good, the additional onuses in case of increases in the customs charges and duties, if the offloading process is to be executed by the addressee, additional expenses and payments made due to the delay, i.e. the overpaid warehouse and/or stevedoring expenses10.
Regardless of the type of the grounds for action for damages, whether it arose from a contract or a wrongful act or any other causes, the claim for damage could only be based on the conditions and quantitative restrictions identified by the convention. Even though the carrier’s liabilities are restricted within the context of quantitative restrictions, in case of culpable negligence, wrongful intention and similar situations and the legal invalidities regarding the air receipt, this limited liability shall not apply.
The application of the quantity and limited liability principle is not available except for in the cases of limitations identified by the Warsaw - Hague System and the Montreal Convention of 1999.
In case the damage is caused by the malicious acts or culpable negligence of the carrier or his employees, the carrier or his employees shall not be able to benefit from the provisions of the convention that removes or limits the quantity of their liabilities.
If the carrier accepts a load that is not regulated within the air receipt or in case of the absence of the essential components stipulated by the legislation at the air receipt, the carrier shall not be able to benefit from the provisions of the convention that removes or limits the quantity of his liabilities.
If there are no statements in the air receipt regarding the carrier’s liabilities, then the carrier shall not be able to benefit from the provisions of the convention that removes or limits the quantity of his liabilities.
Both the Warsaw - Hague System and the Montreal Convention of 1999 stipulate that lawsuits regarding the liabilities of the carrier should be filed within two years from the air vehicle’s arrival to the identified destination or from the date the air vehicle should have arrived there or from the suspension of the transport, and that there shall be a loss of claim if the aforementioned duration is exceeded11. Within the scope of the Warsaw/Hague Agreement and Montreal Agreement, in certain cases, the lex fori (the execution area of the court) shall apply12. For example, in the settlement of conflicts of the procedural law, lex fori is referred to during the identification of the court expenses or other costs of proceedings.
In terms of the implementation, in accordance with the philosophical and doctrinal approaches, during the establishment of the contract, it is essential that the parties to the air carriage declare their requirements and demands within the pre-contractual liabilities (Culpa in Contrahendo) and shape their air consignment note - air receipt to that end. Pursuant to the principle of honesty, the execution of the concept of the liberty of contract on one hand shall take the shipper’s rights into consideration while on the other shall enable paying regard to the carrier’s rights in terms of carriage safety.
The presentation titled “Lags/Delays in International Air Carriage and Liabilities of Carriers” was made by Attorney Nazmi CUMİK, at the meeting on “Air Carriage” held as a single session on May 28, 2019 at the Conference Hall of the Bar of Istanbul by the Aviation and Space Law Commission at the Bar of Istanbul.