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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 IN GUADALAJARA, ON 18 SEPTEMBER 1961
(GUADALAJARA CONVENTION 1961)
THE STATES SIGNATORY TO THE PRESENT CONVENTION
NOTING that the Warsaw Convention does not contain particular
rules relating to international carriage by air performed by a person who is
not a party to the agreement for carriage
CONSIDERING that it is therefore desirable to formulate rules to
apply in such circumstances
HAVE AGREED AS FOLLOWS:
Article I
In this Convention:
(a) "Warsaw Convention" means the Convention for the
Unification of Certain Rules Relating to International Carriage by
Air signed at Warsaw on 12 October 1929, or the Warsaw
Convention as amended at The Hague, 1955, according to whether
the carriage under the agreement referred to in paragraph (b) is
governed by the one or by the other;
(b) "contracting carrier" means a person who as a principal
makes an agreement for carriage governed by the Warsaw
Convention with a passenger or consignor or with a person acting
on behalf of the passenger or consignor;
(c) "actual carrier" means a person other than the
contracting carrier, who, by virtue of authority from the
contracting carrier, performs the whole or part of the carriage
contemplated in paragraph (b) but who is not with respect to such
part a successive carrier within the meaning of the Warsaw
Convention. Such authority is presumed in the absence of proof to
the contrary.
Article II
If an actual carrier performs the whole or part of carriage which,
according to the agreement referred to in Article I, paragraph (b), is
governed by the Warsaw Convention, both the contracting carrier and the
actual carrier shall, except as otherwise provided in this Convention, be
subject to the rules of the Warsaw Convention, the former for the whole of
the carriage contemplated in the agreement, the latter solely for the
carriage which he performs.
Article III
1. The acts and omissions of the actual carrier and of his servants
and agents acting within the scope of their employment shall, in relation to
the carriage performed by the actual carrier, be deemed to be also those of
the contracting carrier.
2. The acts and omissions of the contracting carrier and of his
servants and agents acting within the scope of their employment shall, in
relation to the carriage performed by the actual carrier, be deemed to be
also those of the actual carrier. Nevertheless, no such act or omission
shall subject the actual carrier to liability exceeding the limits specified
in Article 22 of the Warsaw Convention. Any special agreement under which
the contracting carrier assumes obligations not imposed by the Warsaw
Convention or any waiver of rights conferred by that Convention or any
special declaration of interest in delivery at destination contemplated in
Article 22 of the said Convention, shall not affect the actual carrier
unless agreed to by him.
Article IV
Any complaint to be made or order to be given under the Warsaw
Convention to the carrier shall have the same effect whether addressed to
the contracting carrier or to the actual carrier. Nevertheless, orders
referred to in Article 12 of the Warsaw Convention shall only be effective
if addressed to the contracting carrier.
Article V
In relation to the carriage performed by the actual carrier, any
servant or agent of that carrier or of the contracting carrier shall, if he
proves that he acted within the scope of his employment, be entitled to
avail himself of the limits of liability which are applicable under this
Convention to the carrier whose servant or agent he is unless it is proved
that he acted in a manner which, under the Warsaw Convention, prevents the
limits of liability from being invoked.
Article VI
In relation to the carriage performed by the actual carrier, the
aggregate of the amounts recoverable from that carrier and the contracting
carrier, and from their servants and agents acting within the scope of their
employment, shall not exceed the highest amount which could be awarded
against either the contracting carrier or the actual carrier under this
Convention, but none of the persons mentioned shall be liable for a sum in
excess of the limit applicable to him.
Article VII
In relation to the carriage performed by the actual carrier, an action
for damages may be brought, at the option of the plaintiff, against that
carrier or the contracting carrier, or against both together or separately.
If the action is brought against only one of those carriers, that carrier
shall have the right to require the other carrier to be joined in the
proceedings, the procedure and effects being governed by the law of the
court seised of the case.
Article VIII
Any action for damages contemplated in Article VII of this Convention
must be brought, at the option of the plaintiff, either before a court in
which an action may be brought against the contracting carrier, as provided
in Article 28 of the Warsaw Convention, or before the court having
jurisdiction at the place where the actual carrier is ordinarily resident or
has his principal place of business.
Article IX
1. Any contractual provision tending to relieve the contracting carrier
or the actual carrier of liability under this Convention or to fix a lower
limit than that which is applicable according to this Convention shall be
null and void, but the nullity of any such provision does not involve the
nullity of the whole agreement, which shall remain subject to the provisions
of this Convention.
2. In respect of the carriage performed by the actual carrier, the
preceding paragraph shall not apply to contractual provisions governing loss
or damage resulting from the inherent defect, quality or vice of the cargo
carried.
3. Any clause contained in an agreement for carriage and all special
agreements entered into before the damage occurred by which the parties
purport to infringe the rules laid down by this Convention, whether by
deciding the law to be applied, or by altering the rules as to jurisdiction,
shall be null and void. Nevertheless, for the carriage of cargo arbitration
clauses are allowed, subject to this Convention, if the arbitration is to
take place in one of the jurisdictions referred to in Article VIII.
Article X
Except as provided in Article VII, nothing in this Convention shall
affect the rights and obligations of the two carriers between themselves.
Article XI
Until the date on which the Convention comes into force in
accordance with the provisions of Article XIII, it shall remain open for
signature on behalf of any State which at that date is a Member of the
United Nations or of any of the Specialized Agencies.
Article XII
1. This Convention shall be subject to ratification by the signatory
States.
2. The instruments of ratification shall be deposited with the
Government of the United States of Mexico.
Article XIII
1. As soon as five of the signatory States have deposited their
instruments of ratification of this Convention, it shall come into force
between them on the ninetieth day after the date of the deposit of the fifth
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 Convention comes into force, it shall be
registered with the United Nations and the International Civil Aviation
Organization by the Government of the United States of Mexico.
Article XIV
1. This Convention shall, after it has come into force, be open for
accession by any State Member of the United Nations or of any of the
Specialized Agencies.
2. The accession of a State shall be effected by the deposit of an
instrument of accession with the Government of the United States of Mexico
and shall take effect as from the ninetieth day after the date of such
deposit.
Article XV
1. Any Contracting State may denounce this Convention by
notification addressed to the Government of the United States of Mexico.
2. Denunciation shall take effect six months after the date of receipt
by the Government of the United States of Mexico of the notification of
denunciation.
Article XVI
1. Any Contracting State may at the time of its ratification of or
accession to this Convention or at any time thereafter declare by
notification to the Government of the United States of Mexico that the
Convention shall extend to any of the territories for whose international
relations it is responsible.
2. The Convention shall, ninety days after the date of the receipt of
such notification by the Government of the United States of Mexico, extend
to the territories named therein.
3. Any Contracting State may denounce this Convention, in
accordance with the provisions of Article XV, separately for any or all of
the territories for the international relations of which such State is
responsible.
Article XVII
No reservation may be made to this Convention.
Article XVIII
The Government of the United States of Mexico shall give notice
to the International Civil Aviation Organization and to all States Members
of the United Nations or of any of the Specialized Agencies:
(a) of any signature of this Convention and the date
thereof;
(b) of the deposit of any instrument of ratification or
accession and the date thereof;
(c) of the date on which this Convention comes into force
in accordance with Article XIII, paragraph 1;
(d) of the receipt of any notification of denunciation and
the date thereof:
(e) of the receipt of any declaration or notification made
under Article XVI and the date thereof.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, having
been duly authorized, have signed this Convention.
DONE at Guadalajara on the eighteenth day of September One
Thousand Nine Hundred and Sixty-one in three authentic texts drawn up in
the English, French and Spanish languages. In 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. The Government of the
United States of Mexico will establish an official translation of the text of
the Convention in the Russian language.
This Convention shall be deposited with the Government of the
United States of Mexico with which in accordance with Article XI, it shall
remain open for signature, and that Government shall send certified copies
thereof to the International Civil Aviation Organization and to all States
Members of the United Nations or of any Specialized Agency.