UBC Theses and Dissertations

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UBC Theses and Dissertations

Passenger liability of international air carriers O’Brien, John David


The civil liability of an air carrier for the death or injury of a passenger in international flight is limited in most cases by international agreement. This maximum limitation is contained in the Warsaw Convention, drafted in 1929 to meet the needs of the carriers of that period. The inertia of the status quo has allowed the continued existence of the limitation, assisting to some degree the development of the industry but at a serious cost to the legitimate rights of the passengers or their survivors. Discussions of the role of limited liability are carried on by national governments who must each balance the conflicting interests of their country's carriers and passengers. Disagreement has resulted from the fact that each state views an equitable balance in different terms. This has lead to a partial breakdown of uniform private air law as contained in the Convention; the critical party, the U.S., operating outside its ambit. Although all countries, aware of the benefit of uniform law in these situations, are committed to agreement they have been unable to reach consensus on the terms of that agreement. The U.S. left the Convention, then established an ancillary instrument in 1966, yet in the intervening period the countries have failed to formulate a new plan for uniform law in this area. The thesis of this paper is that lack of consensus resulted from the manner of negotiation. The discussion revolved around the absolute level of liability limitation and the parties reached an impasse typical of single-issue deliberations A point is reached beyond which the parties cannot concede and still protect their basic interests. In this case that point was reached before a consensus. The object of the thesis, therefore, is to propose a multipoint "package" which is directed at gaining agreement from all parties. The ultimate agreement in this situation is a function of the positions and negotiating strength of the parties so the proposal is heavily weighted towards the U.S. stand. At the same time, the multipoint aspect allows the negative effects of this concession on the other nations to be counterbalanced by ancilliary conditions in the proposal. By broadening the field of negotiation, it becomes possible to encompass the needs and means of all parties involved. The result is a nine-point proposal which is not held out as being necessarily just or even reasonable - these are relative virtues and the prime requirement of any proposal here must be acceptance by the nations. The data from which the proposal was developed is assembled in a chronological framework, tracing the course of limited liability from 1929 to date. The discussions, agreements, and disagreements revealed in this evidence provide the source of the two points of the proposal. The first being the criticism of single-issue negotiation and the second, a package seen to be an acceptable solution to the problem. It is against this data that the thesis must be tested; since it is a subjective decision the test must be the consistency with the evidence and the reasonableness of the proposal in light of the facts.

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