19. Wilful Misconduct: from Warsaw to the Hague and from Brussels to Paris

19. Wilful Misconduct: From Warsaw to The Hague and from Brussels to Paris

First published in 2 Annals of Air and Space Law (1977) 55–102. Reproduced by kind permis- sion of the publishers, Institute of Air and Space Law, McGill University, Montreal. See also the author’s “Comparative Law and the Practice of Courts”, David Davies Memorial Institute of In- ternational Studies: Report of International Law Conference held at Niblett Hall, July 1958, 67–78

1 Introduction

The case of Tondriau v. Air India decided by the Belgian Cour de Cassation on 27 January 19771 raised once again the issue of the proper interpretation of Article 25 of the 1929 Warsaw Convention on International Carriage by Air (Warsaw Convention) and of its amended version in the Warsaw Convention as amended at The Hague 1955 (Warsaw-Hague Convention). When the case was first brought before the Brussels Court of First Instance in 1968, the latter followed the precedents set by the French Cour de Cassation and applied an objective test. On appeal, its decision was reversed by the Brussels Court of Appeal which ruled in favour of the subjective test. In January 1977, the highest court in Belgium confirmed the judgment of the Court of Appeal. Article 25 has become one of the most controversial and litigated provisions in the Warsaw system partly because of inherent difficulties in interpretation and application, and partly because it is one of the few openings through which passengers and shippers can overcome the limits of the carrier’s liability in Article 22 of the Convention and obtain full compensation for damage suffered.2 Although the Warsaw Convention has been revised and re-revised many times, both legally and extra-legally, with the result that the tangled network that is the Warsaw system comprising the original treaty and all its related in- struments is a disgraceful shambles, for those who are prepared to venture into

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1 Revue française de droit aérien (r.f.d.a.) (1977), P. 193. 2 Cf. B. Cheng, “Centrifugal Tendencies in Air Law”, 10 Current Legal Problems (1957), p. 200, at p. 213 et seq.; and “The Law of ‘International’ and ‘Non-international’ Carriage by Air”, The law Society’s Gazette (1963), p. 334, at (1964), pp. 336–337.

Wilful Misconduct 621 the thicket, it is well to remember that the unamended Warsaw Convention re- mains binding on over 110 States, that the Warsaw-Hague Convention on some 90 States, and that, in so far as Article 25 is concerned, neither the Warsaw Convention nor the Warsaw-Hague Convention is affected by the Montreal Agreement of 1966. Under the 1971 Guatemala City Protocol amending the Warsaw-Hague Con- vention, the limit of the carrier’s liability in the carriage of passengers and bag- gage is no longer breakable, but Article 25 continues to apply in the carriage of cargo. However, the Guatemala City Protocol is not yet in force and it is difficult to say when it will receive sufficient ratifications in order to do so. The 1975 Montreal Protocol 4, which also amends the Warsaw-Hague Convention, makes the limit of the carrier’s liability in the carriage of cargo unbreakable, but leaves Article 25 unaltered in so far as the carriage of passengers and bag- gage is concerned. Again, it is difficult to tell when Montreal Protocol 4 will come into effect. The result is that Article 25, whether in its unamended version as in the Warsaw Convention or in its revised wording as in the Warsaw- Hague Convention, is still applicable to international carriage by air on a quasi- universal scale and it will probably continue to do so for some time to come. Moreover, it is not to be overlooked that the material part of Article 25 of the Warsaw-Hague Convention has been taken over verbatim in Article 13 of the 1974 Athens Convention on the Carriage of Passengers and their Luggage by Sea. There are also similarities between Article 25 on the one hand and on the other hand Article 12 of the 1952 Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, and Article vi of the 1972 Con- vention on International Liability for Damage caused by Space Objects. The proper interpretation of Article 25 of the Warsaw and Warsaw-Hague Conventions is consequently of continuing importance. The present paper seeks to examine the meaning of Article 25 of both Conventions, particularly in the light of the Tondriau case and some decisions of the French Cour de Cas- sation in the opposite direction.

2 Tondriau v. Air India

The facts of the Tondriau case are very similar to many of the cases in which Article 25 of the Warsaw or Warsaw-Hague Convention has been invoked. The following is an excerpt from the transcript of the messages exchanged between Geneva Control/Geneva Radar and the Geneva-bound Air India aircraft vt- dmn Flight 101 on 24 January 1966: