Sea carriage and air carriage of passengers

[extract from Correspondence Group submission at LEG 78 (LEG 78/3/1)]

12 The terms of reference of the Correspondence Group refers to the draft revised Warsaw Convention now being discussed in ICAO. In many respects, it seems right that liability rules should be similar regardless of mode of transport. However, it has been pointed out that the more important task perhaps is to find workable rules, and that carriage by train may be as relevant as carriage by air. In any event, the group has discussed the possible relevance of the following differences between air and sea carriage:

13 First of all, there are differences in the way carriers arrange their insurance. It is well known that insurance in the marine sector is mutual, provided by only a few clubs, and that one policy usually covers all levels of liability. In the aviation sector, there are many non-mutual insurers, and a carrier may often chose to purchase cover from different insurers for different levels of liability. The marine cover is generally believed to be relatively inexpensive, while the air market, on the other hand, does not seem to suffer from the capacity problems of the maritime sector.

14 Some may argue that one should avoid a situation whereby new regimes destroy the mutual insurance system that exists today in the marine sector. This may mean that one should take the capacity of this particular market into consideration, and also the (possible) need of a mutual system for limited liability. Others may argue that the existing insurance arrangements in the marine sector have no intrinsic value, and must be subject to change if needed.

15 Secondly, there is a difference between the air and marine sectors as to the carriage itself. In the maritime sector, passengers often move around, inside and on deck, performing different activities. In an airplane, the movement of passengers is much more restricted, and the duration of travel (and, perhaps, the time for consumption of alcohol) is often much shorter. Because of this, the likelihood of contributory negligence and accidents not due to the carrier is perhaps greater in the maritime sector than in the aviation sector.

16 If the points of the last paragraph are relevant, they may lead to the conclusion that one should be more careful introducing strict liability for vessels than for aircraft. Strict liability is, on the other hand, a principle which is gaining general acceptance also in contractual relations outside the aviation sector.

17 Thirdly, there is a significant difference in tradition and attitude towards liability in the two sectors. In the aviation sector, the industry has not been opposed to stricter and increased liability, while this is not true in the maritime sector. The tradition has to some extent been reflected in legislation, but most of all in contract practice.

18 Although politically relevant, it is arguable that the traditions and attitudes of the industry should not be decisive when considering new rules. However, it may be that the wiser approach is to enhance liability step by step if the industry is opposed to the increase. In that case, the traditions and attitudes of the industry will have some influence in the short term.

19 Finally, while perhaps 90% of the claims in the marine sector are claims made by one or a few passengers, claims in the aviation sector tend to involve all or most of the passengers on board an aircraft if they first arise. The economic effects of rules such as per capita limitation, global limitation and strict liability vary accordingly. It is, however, hardly possible to conclude from these differences how the rules should vary, or indeed that they should vary at all between the two sectors.


Erik Røsæg