| Summary: | In the South African law of carriage by air, different rules apply according to
whether the carriage is (1) international carriage to which the Carriage by Air
Act 17 of 1946 applies, or (2) either international carriage to which that Act
does not apply, or purely domestic carriage, that is performed wholly within the
borders of the Republic. International carriage not falling under (1) above, and
purely domestic carriage, are governed by the common law except to the extent
that the rule of the common law have been modified by agreement by the
conditions of carriage of the individual carrier concerned. However,
international carriage under (1) above is governed partly by the rules of certain
international conventions which have been incorporated by legislation into our
domestic law, and partly by agreements between intentional air carriers. The
following international instruments and agreements have a bearing on this class
of international carriage:
(a) the Warsaw Convention for the Unification of Certain Rules Relating to
International Carriage by Air, dating form 1929, which firmly
established and elaborated, as one of its major tenets, the principle of
the air carrier's liability for damage caused to passengers, baggage and
goods, and also for damage caused by delay;
(b) the Hague Protocol of 1955. It was added to the Warsaw Convention
with the aim of adapting it to the demands of modem transport;
(c) the Guadalajara Convention of 1961 for the Unification of Certain
Rules Relating to International Carriage by Air Performed by a Person
Other than the Contracting Carrier. This amendment took the form of a
Supplementary Convention because it was concluded to deal with an
entirely new subject-matter, namely chartering;
(d) the Montreal Agreement, an agreement subscribed to by a number of
international air carriers whereby the participating carriers voluntarily
undertake to assume a more extensive liability for passenger death or
injury occurring on international journeys to, from, or via the United
States of America, than that which they would have been subject under
the Warsaw Convention as amended by the Hague Protocol. As seen above, the Warsaw Convention became the first international legal
instrument to establish the principles of liability related to carriage by air.
However, the Warsaw Convention has proved insufficient for the requirements
of rapid-developing air transport and travel, and as aviation began expanding on
a large scale, the Warsaw Convention had to be amended. These amendments
however, present problems since some States are only a member to the Warsaw
Convention and others are members to both the Warsaw Convention and all its
amendments. This in effect means that the unamended and amended
conventions co-exist. As a result, the amount of limited liability or
compensation for damages caused by aircraft accidents in the Warsaw is
controversial and questionable, and no longer provides a uniform body of legal
rules.
The answer to the inherent flaws of the Warsaw regime is the Montreal
Convention of 1999. This Convention evolved from the original Warsaw
Convention, but is now no longer a convention for carriers. It is a convention
for consumers/passengers. The Montreal Convention aims to modernise the
liability regime, to consolidate the Warsaw Convention and related instruments,
to ensure orderly development of international air transport operations, and to,
once again, ensure uniformity and universality. The Montreal Convention
however, will only come into force after 30 countries have ratified it. Since
only one country has currently ratified the Convention, it can still take a few
years before uniformity is restored. This however does not stop South Africa
from following in the footsteps of the European Union by the promulgation of
legislation which would give the Montreal Convention immediate effect in
South Africa as soon as the Convention came into force. === Thesis (LL.M. (Import and Export Law))--North-West University, Potchefstroom Campus, 2005
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