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MONTREAL PROTOCOL No.4 TO AMEND THE CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR, SIGNED AT WARSAW ON 12 OCTOBER 1929, AS AMENDED BY THE PROTOCOL DONE AT THE HAGUE ON 28 SEPTEMBER 1955, SIGNED AT MONTREAL ON 25 SEPTEMBER 1975
(ADDITIONAL PROTOCOL No. 4)
THE GOVERNMENTS UNDERSIGNED
CONSIDERING that it is desirable to amend the Convention for the
Unification of Certain Rules Relating to International Carriage by Air
signed at Warsaw on 12 October 1929 as amended by the Protocol done at The
Hague on 28 September 1955,
HAVE AGREED as follows:
CHAPTER I
AMENDMENTS TO THE CONVENTION
Article I
The Convention which the provisions of the present Chapter modify
is the Warsaw Convention as amended at The Hague in 1955.
Article II
In Article 2 of the Convention-
paragraph 2 shall be deleted and replaced by the following:-
"2. In the carriage of postal items the carrier shall be liable only to
the relevant postal administration in accordance with the rules applicable
to the relationship between the carriers and the postal administrations.
3. Except as provided in paragraph 2 of this Article, the provisions
of this Convention shall not apply to the carriage of postal items."
Article III
In Chapter II of the Convention-
Section III (Articles 5 to 16) shall be deleted and replaced by the
following:-
"Section III. - Documentation relating to cargo
Article 5
1. In respect of the carriage of cargo an air waybill shall be
delivered.
2. Any other means which would preserve a record of the carriage to be
performed may, with the consent of the consignor, be substituted for the
delivery of an air waybill. If such other means are used, the carrier shall,
if so requested by the consignor, deliver to the consignor a receipt for the
cargo permitting identification of the consignment and access to the
information contained in the record preserved by such other means.
3. The impossibility of using, at points of transit and destination,
the other means which would preserve the record of the carriage referred to
in paragraph 2 of this Article does not entitle the carrier to refuse to
accept the cargo for carriage.
Article 6
1. The air waybill shall be made out by the consignor in three
original parts.
2. The first part shall be marked "for the carrier"; it shall be signed
by the consignor. The second part shall be marked "for the consignee"; it
shall be signed by the consignor and by the carrier. The third part shall be
signed by the carrier and handed by him to the consignor after the cargo has
been accepted.
3. The signature of the carrier and that of the consignor may be
printed or stamped.
4. If, at the request of the consignor, the carrier makes out the air
waybill, he shall be deemed, subject to proof to the contrary, to have done
so on behalf of the consignor.
Article 7
When there is more than one package:
(a) the carrier of cargo has the right to require the
consignor to make out separate air waybills;
(b) the consignor has the right to require the carrier to
deliver separate receipts when the other means referred to in
paragraph 2 of Article 5 are used.
Article 8
The air waybill and the receipt for the cargo shall contain:
(a) an indication of the places of departure and destination;
(b) if the places of departure and destination are within the
territory of a single High Contracting Party, one or more agreed
stopping places being within the territory of another State, an
indication of at least one such stopping place; and
(c) an indication of the weight of the consignment.
Article 9
Non-compliance with the provisions of Articles 5 to 8 shall not affect
the existence or the validity of the contract of carriage, which shall, none
the less, be subject to the rules of this Convention including those
relating to limitation of liability.
Article 10
1. The consignor is responsible for the correctness of the particulars
and statements relating to the cargo inserted by him or on his behalf in the
air waybill or furnished by him or on his behalf to the carrier for
insertion in the receipt for the cargo or for insertion in the record
preserved by the other means referred to in paragraph 2 of Article 5.
2. The consignor shall indemnify the carrier against all damage
suffered by him, or by any other person to whom the carrier is liable, by
reason of the irregularity, incorrectness or incompleteness of the
particulars and statements furnished by the consignor or on his behalf.
3. Subject to the provisions of paragraphs 1 and 2 of this Article, the
carrier shall indemnify the consignor against all damage suffered by him, or
by any other person to whom the consignor is liable, by reason of the
irregularity, incorrectness or incompleteness of the particulars and
statements inserted by the carrier or on his behalf in the receipt for the
cargo or in the record preserved by the other means referred to in paragraph
2 of Article 5.
Article 11
1. The air waybill or the receipt for the cargo is prima facie
evidence of the conclusion of the contract, of the acceptance of the cargo
and of the conditions of carriage mentioned therein.
2. Any statements in the air waybill or the receipt for the cargo
relating to the weight, dimensions and packing of the cargo, as well as
those relating to the number of packages, are prima facie evidence of the
facts stated; those relating to the quantity, volume and condition of the
cargo do not constitute evidence against the carrier except so far as they
both have been, and are stated in the air waybill to have been, checked by
him in the presence of the consignor, or relate to the apparent condition of
the cargo.
Article 12
1. Subject to his liability to carry out all his obligations under the
contract of carriage, the consignor has the right to dispose of the cargo by
withdrawing it at the airport of departure or destination, or by stopping it
in the course of the journey on any landing, or by calling for it to be
delivered at the place of destination or in the course of the journey to a
person other than the consignee originally designated, or by requiring it to
be returned to the airport of departure. He must not exercise this right of
disposition in such a way as to prejudice the carrier or other consignors
and he must repay any expenses occasioned by the exercise of this right.
2. If it is impossible to carry out the orders of the consignor the
carrier must so inform him forthwith.
3. If the carrier obeys the orders of the consignor for the disposition
of the cargo without requiring the production of the part of the air waybill
or the receipt for the cargo delivered to the latter, he will be liable,
without prejudice to his right of recovery from the consignor, for any
damage which may be caused thereby to any person who is lawfully in
possession of that part of the air waybill or the receipt for the cargo.
4. The right conferred on the consignor ceases at the moment when that
of the consignee begins in accordance with Article 13. Nevertheless, if the
consignee declines to accept the cargo, or if he cannot be communicated
with, the consignor resumes his right of disposition.
Article 13
1. Except when the consignor has exercised his right under Article
12, the consignee is entitled, on arrival of the cargo at the place of
destination, to require the carrier to deliver the cargo to him, on payment
of the charges due and on complying with the conditions of carriage.
2. Unless it is otherwise agreed, it is the duty of the carrier to
give notice to the consignee as soon as the cargo arrives.
3. If the carrier admits the loss of the cargo, or if the cargo has not
arrived at the expiration of seven days after the date on which it ought to
have arrived, the consignee is entitled to enforce against the carrier the
rights which flow from the contract of carriage.
Article 14
The consignor and the consignee can respectively enforce all the rights
given them by Articles 12 and 13, each in his own name, whether he is acting
in his own interest or in the interest of another, provided that he carries
out the obligations imposed by the contract of carriage.
Article 15
1. Articles 12, 13 and 14 do not affect either the relations of the
consignor and the consignee with each other or the mutual relations of third
parties whose rights are derived either from the consignor or from the
consignee.
2. The provisions of Articles 12, 13 and 14 can only be varied by
express provision in the air waybill or the receipt for the cargo.
Article 16
1. The consignor must furnish such information and such documents as
are necessary to meet the formalities of customs, octroi or police before
the cargo can be delivered to the consignee. The consignor is liable to the
carrier for any damage occasioned by the absence, insufficiency or
irregularity of any such information or documents, unless the damage is due
to the fault of the carrier, his servants or agents.
2. The carrier is under no obligation to enquire into the correctness
or sufficiency of such information or documents."
Article IV
Article 18 of the Convention shall be deleted and replaced by the
following:-
"Article 18
1. The carrier is liable for damage sustained in the event of the
destruction or loss of, or damage to, any registered baggage, if the
occurrence which caused the damage so sustained took place during the
carriage by air.
2. The carrier is liable for damage sustained in the event of the
destruction or loss of, or damage to, cargo upon condition only that the
occurrence which caused the damage so sustained took place during the
carriage by air.
3. However, the carrier is not liable if he proves that the
destruction, loss of, or damage to, the cargo resulted solely from one or
more of the following:
(a) inherent defect, quality or vice of that cargo;
(b) defective packing of that cargo performed by a person
other than the carrier or his servants or agents;
(c) an act of war or an armed conflict;
(d) an act of public authority carried out in connexion with
the entry, exit or transit of the cargo.
4. The carriage by air within the meaning of the preceding paragraphs
of this Article comprises the period during which the baggage or cargo is in
the charge of the carrier, whether in an airport or on board an aircraft,
or, in the case of a landing outside an airport, in any place whatsoever.
5. The period of the carriage by air does not extend to any carriage by
land, by sea or by river performed outside an airport. If, however, such
carriage takes place in the performance of a contract for carriage by air,
for the purpose of loading, delivery or transhipment, any damage is
presumed, subject to proof to the contrary, to have been the result of an
event which took place during the carriage by air."
Article V
Article 20 of the Convention shall be deleted and replaced by the
following:-
"Article 20
In the carriage of passengers and baggage, and in the case of
damage occasioned by delay in the carriage of cargo, the carrier shall not
be liable if he proves that he and his servants and agents have taken all
necessary measures to avoid the damage or that it was impossible for them
to take such measures."
Article VI
Article 21 of the Convention shall be deleted and replaced by the
following:-
"Article 21
1. In the carriage of passengers and baggage, if the carrier proves
that the damage was caused by or contributed to by the negligence of the
person suffering the damage the Court may, in accordance with the
provisions of its own law, exonerate the carrier wholly or partly from his
liability.
2. In the carriage of cargo, if the carrier proves that the damage was
caused by or contributed to by the negligence or other wrongful act or
omission of the person claiming compensation, or the person from whom he
derives his rights, the carrier shall be wholly or partly exonerated from
his liability to the claimant to the extent that such negligence or wrongful
act or omission caused or contributed to the damage."
Article VII
In Article 22 of the Convention-
(a) in paragraph 2 (a) the words "and of cargo" shall be
deleted.
(b) after paragraph 2 (a) the following paragraph shall be
inserted:-
"(b) In the carriage of cargo, the liability of the carrier is
limited to a sum of 17 Special Drawing Rights per kilogramme,
unless the consignor has made, at the time when the package was
handed over to the carrier, a special declaration of interest in
delivery at destination and has paid a supplementary sum if the case
so requires. In that case the carrier will be liable to pay a sum not
exceeding the declared sum, unless he proves that the sum is
greater than the consignor's actual interest in delivery at
destination."
(c) paragraph 2 (b) shall be designated as paragraph 2 (c).
(d) after paragraph 5 the following paragraph shall be inserted:-
"6. The sums mentioned in terms of the Special Drawing
Right in this Article shall be deemed to refer to the Special
Drawing Right as defined by the International Monetary Fund.
Conversion of the sums into national currencies shall, in case of
judicial proceedings, be made according to the value of such
currencies in terms of the Special Drawing Right at the date of the
judgment. The value of a national currency, in terms of the Special
Drawing Right, of a High Contracting Party which is a Member of
the International Monetary Fund, shall be calculated in accordance
with the method of valuation applied by the International Monetary
Fund, in effect at the date of the judgment, for its operations and
transactions. The value of a national currency, in terms of the
Special Drawing Right, of a High Contracting Party which is not
a Member of the International Monetary Fund, shall be calculated
in a manner determined by that High Contracting Party.
Nevertheless, those States which are not Members of the
International Monetary Fund and whose law does not permit the
application of the provisions of paragraph 2 (b) of Article 22 may,
at the time of ratification or accession or at any time thereafter,
declare that the limit of liability of the carrier in judicial
proceedings in their territories is fixed at a sum of two hundred and
fifty monetary units per kilogramme. This monetary unit
corresponds to sixty-five and a half milligrammes of gold of
millesimal fineness nine hundred. This sum may be converted into
the national currency concerned in round figures. The conversion
of this sum into the national currency shall be made according to
the law of the State concerned."
Article VIII
Article 24 of the Convention shall be deleted and replaced by the
following:-
"Article 24
1. In the carriage of passengers and baggage, any action for damages,
however founded, can only be brought subject to the conditions and limits
set out in this Convention, without prejudice to the question as to who are
the persons who have the right to bring suit and what are their respective
rights.
2. In the carriage of cargo, any action for damages, however founded,
whether under this Convention or in contract or in tort or otherwise, can
only be brought subject to the conditions and limits of liability set out in
this Convention without prejudice to the question as to who are the persons
who have the right to bring suit and what are their respective rights. Such
limits of liability constitute maximum limits and may not be exceeded
whatever the circumstances which gave rise to the liability."
Article IX
Article 25 of the Convention shall be deleted and replaced by the
following:-
"Article 25
In the carriage of passengers and baggage, the limits of liability
specified in Article 22 shall not apply if it is proved that the damage
resulted from an act or omission of the carrier, his servants or agents,
done with intent to cause damage or recklessly and with knowledge that
damage would probably result; provided that, in the case of such act or
omission of a servant or agent, it is also proved that he was acting within
the scope of his employment."
Article X
In Article 25 A of the Convention-
paragraph 3 shall be deleted and replaced by the following:-
"3. In the carriage of passengers and baggage, the provisions of
paragraphs 1 and 2 of this Article shall not apply if it is proved that the
damage resulted from an act or omission of the servant or agent done with
intent to cause damage or recklessly and with knowledge that damage would
probably result."
Article XI
After Article 30 of the Convention, the following Article shall be
inserted:-
"Article 30 A
Nothing in this Convention shall prejudice the question whether a
person liable for damage in accordance with its provisions has a right of
recourse against any other person."
Article XII
Article 33 of the Convention shall be deleted and replaced by the
following:-
"Article 33
Except as provided in paragraph 3 of Article 5, nothing in this
Convention shall prevent the carrier either from refusing to enter into any
contract of carriage or from making regulations which do not conflict with
the provisions of this Convention."
Article XIII
Article 34 of the Convention shall be deleted and replaced by the
following:-
"Article 34
The provisions of Articles 3 to 8 inclusive relating to documents of
carriage shall not apply in the case of carriage performed in extraordinary
circumstances outside the normal scope of an air carrier's business."
CHAPTER II
SCOPE OF APPLICATION OF THE CONVENTION
AS AMENDED
Article XIV
The Warsaw Convention as amended at The Hague in 1955 and by this
Protocol shall apply to international carriage as defined in Article 1 of
the Convention, provided that the places of departure and destination
referred to in that Article are situated either in the territories of two
Parties to this Protocol or within the territory of a single Party to this
Protocol with an agreed stopping place in the territory of another State.
CHAPTER III
FINAL CLAUSES
Article XV
As between the Parties to this Protocol, the Warsaw Convention as
amended at The Hague in 1955 and this Protocol shall be read and
interpreted together as one single instrument and shall be known as the
Warsaw Convention as amended at The Hague, 1955, and by Protocol No.
4 of Montreal, 1975.
Article XVI
Until the date on which this Protocol comes into force in accordance
with the provisions of Article XVIII, it shall remain open for signature by
any State.
Article XVII
1. This Protocol shall be subject to ratification by the signatory
States.
2. Ratification of this Protocol by any State which is not a Party to
the Warsaw Convention or by any State which is not a Party to the Warsaw
Convention as amended at The Hague, 1955, shall have the effect of
accession to the Warsaw Convention as amended at The Hague, 1955, and
by Protocol No. 4 of Montreal, 1975.
3. The instruments of ratification shall be deposited with the
Government of the Polish People's Republic.
Article XVIII
1. As soon as thirty signatory States have deposited their instruments
of ratification of this Protocol, it shall come into force between them on
the ninetieth day after the deposit of the thirtieth instrument of
ratification. It shall come into force for each State ratifying thereafter
on the ninetieth day after the deposit of its instrument of ratification.
2. As soon as this Protocol comes into force it shall be registered
with the United Nations by the Government of the Polish People's Republic.
Article XIX
1. This Protocol, after it has come into force, shall be open for
accession by any non-signatory State.
2. Accession to this Protocol by any State which is not a Party to
the Warsaw Convention or by any State which is not a Party to the Warsaw
Convention as amended at The Hague, 1955, shall have the effect of
accession to the Warsaw Convention as amended at The Hague, 1955, and
by Protocol No. 4 of Montreal, 1975.
3. Accession shall be effected by the deposit of an instrument of
accession with the Government of the Polish People's Republic and shall
take effect on the ninetieth day after the deposit.
Article XX
1. Any Party to this Protocol may denounce the Protocol by
notification addressed to the Government of the Polish People's Republic.
2. Denunciation shall take effect six months after the date of receipt
by the Government of the Polish People's Republic of the notification of
denunciation.
3. As between the Parties to this Protocol, denunciation by any of
them of the Warsaw Convention in accordance with Article 39 thereof or of
The Hague Protocol in accordance with Article XXIV thereof shall not be
construed in any way as a denunciation of the Warsaw Convention as
amended at The Hague, 1955, and by Protocol No. 4 of Montreal, 1975.
Article XXI
1. Only the following reservations may be made to this Protocol:-
(a) a State may at any time declare by a notification
addressed to the Government of the Polish People's Republic that
the Warsaw Convention as amended at The Hague, 1955, and by
Protocol No. 4 of Montreal, 1975, shall not apply to the carriage
of persons, baggage and cargo for its military authorities on
aircraft, registered in that State, the whole capacity of which has
been reserved by or on behalf of such authorities; and
(b) any State may declare at the time of ratification of or
accession to the Additional Protocol No. 3 of Montreal, 1975, or
at any time thereafter, that it is not bound by the provisions of the
Warsaw Convention as amended at The Hague, 1955, and by
Protocol No. 4 of Montreal, 1975, in so far as they relate to the
carriage of passengers and baggage. Such declaration shall have
effect ninety days after the date of receipt of the declaration by the
Government of the Polish People's Republic.
2. Any State having made a reservation in accordance with the
preceding paragraph may at any time withdraw such reservation by
notification to the Government of the Polish People's Republic.
Article XXII
The Government of the Polish People's Republic shall promptly inform
all States Parties to the Warsaw Convention or to that Convention as
amended, all signatory or acceding States to the present Protocol, as well
as the International Civil Aviation Organization, of the date of each
signature, the date of deposit of each instrument of ratification or
accession, the date of coming into force of this Protocol, and other
relevant information.
Article XXIII
As between the Parties to this Protocol which are also Parties to the
Convention, Supplementary to the Warsaw Convention, for the Unification
of Certain Rules Relating to International Carriage by Air Performed by a
Person Other than the Contracting Carrier, signed at Guadalajara on 18
September 1961 (hereinafter referred to as the "Guadalajara Convention")
any reference to the "Warsaw Convention" contained in the Guadalajara
Convention shall include reference to the Warsaw Convention as amended
at The Hague, 1955, and by Protocol No. 4 of Montreal, 1975, in cases
where the carriage under the agreement referred to in Article 1, paragraph
(b) of the Guadalajara Convention is governed by this Protocol.
Article XXIV
If two or more States are Parties both to this Protocol and to the
Guatemala City Protocol, 1971, or to the Additional Protocol No. 3 of
Montreal, 1975, the following rules shall apply between them:
(a) the provisions resulting from the system established by
this Protocol, concerning cargo and postal items, shall prevail over
the provisions resulting from the system established by the
Guatemala City Protocol, 1971, or by the Additional Protocol No.
3 of Montreal, 1975;
(b) the provisions resulting from the system established by
the Guatemala City Protocol, 1971, or by the Additional Protocol
No. 3 of Montreal, 1975, concerning passengers and baggage,
shall prevail over the provisions resulting from the system
established by this Protocol.
Article XXV
This Protocol shall remain open for signature until 1 January 1976
at the Headquarters of the International Civil Aviation Organization and
thereafter until it comes into force in accordance with Article XVIII at the
Ministry for Foreign Affairs of the Polish People's Republic. The
International Civil Aviation Organization shall promptly inform the
Government of the Polish People's Republic of any signature and the date
thereof during the time that the Protocol shall be open for signature at the
Headquarters of the International Civil Aviation Organization.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, having
been duly authorized, have signed this Protocol.
DONE at Montreal on the twenty-fifth day of September of the year
One Thousand Nine Hundred and Seventy-five in four authentic texts in the
English, French, Russian and Spanish languages. In the case of any
inconsistency, the text in the French language, in which language the
Warsaw Convention of 12 October 1929 was drawn up, shall prevail.