Air Law is regarded as a branch of international law. It comprises aspects of both public and private international law, and also extends into other, more traditional, branches of law, such as civil and commercial law, administrative law, and even criminal law. It can be concluded that Air Law is a very complex and interdisciplinary legal branch. This article is mainly focused on the private international law aspect and rights of passengers in relation to an air carrier during a carriage by air.
It has been 376 years from the legendary unpowered flight of Turkish aviator Hezarfen Ahmed Çelebi, who took off from the Galata Tower, flew over the Bosporus Strait, and landed on the Asian side of Istanbul called Üsküdar. He traveled over 3 km with a glide ratio 39:1. It is commonly accepted that the first sustained, controlled, and powered flight of an airplane heavier-then-air was performed by the Wright brothers in their Wright Flyer I on December 17, 1903 at Kitty Hawk in North Carolina, USA. Their flight was only 120 feet (36,5 meters) long, which is shorter than the wingspan of Boeing 747, big aircraft used for air transportation today. It may not be even the very first flight, but it was surely flight with the most significant symbolic value triggering interest in aviation of many enthusiasts, who also wanted to get airborne. More machines of various shapes started appearing in the sky. The space above the earth seems to be limitless, but started quickly filling up, and that required regulation and organization. So air law as a separate legal discipline started to develop along with the rapid development of flying, which was also accelerated by the First World War.
The International Civil Aviation Organization has a few predecessors in the development. Its first forerunner is the International Commission for Air Navigation which held its first conference in 1903 in Berlin, Germany. A significant breakpoint came at the end of the Second World War. The Chicago Convention was signed by 52 out of 54 countries which attended the International Civil Aviation Conference held in November 1944 in Chicago, USA. This established the Provisional International Civil Aviation Organization (PICAO) which was subsequently replaced by ICAO in April 1947. In October of the same year, ICAO became a specialized agency of the United Nations linked to Economic and Social Council (ECOSOC). The main purpose of establishing ICAO was to lay a foundation for development of rules and regulations regarding air navigation and bring safety in flying. Its activities were namely focused on training and licensing of aeronautical personnel, communication systems and procedures, rules for the air and air traffic control systems and practices, airworthiness and other technical aspects of airplanes, their registration and identification, aeronautical meteorology, maps and charts, and other related aspects of aviation. Its headquarters is placed in Montreal, Quebec, Canada.
As of January 2014, ICAO has 191 members which are parties to the Chicago Convention. The main body responsible for its decisions is the Governing Council consisting of 36 members who are elected every 3 years. ICAO strategic objectives for the following period of two years are safety, air navigation capacity and efficiency, security & facilitation, economic development of air transport, and environmental protection.
As it has been mentioned above, Convention on International Civil Aviation known as Chicago Convention was signed on December 7, 1944 in Chicago, USA. Since then, I has been revised several times and amended by total number of 19 annexes.
It states in the provisions of its first article that “every State has complete and exclusive sovereignty over the airspace above its territory.” It further states in Article 5 that the aircraft of states, other than scheduled international air services, have the right to make flights across states territories and to make stops without obtaining prior permission. However states may require the aircraft to land. On the other hand all scheduled international air services must obtain permission or other authorization to operate over or into a territory of a contracting state. The state can then require further procedure to be followed by an aircraft on arrival, upon its departure and also whilst within the territory of the state. Scheduled services are done on continuously basis throughout the year, and the relationship is directly between a passenger and an air carrier. The other form of providing air services is charter flight. It is done on ad hoc basis usually only throughout the holiday season. The relationship involves three parties where a travel agency serves as an intermediary between a passenger and an air carrier.
4. Freedoms of Air
There are five main freedoms of air. The term freedom refers to a type of international service permitted between two or more countries. These five major freedoms are enumerated in the Chicago Convention and also guaranteed in the International Air Transport Agreement (“Five Freedoms Agreement”) and unify treatment of aircraft belonging to member states above or in a territory of another state. The first freedom is the right to fly over a foreign country, without landing there. It is usually limited to designated air routes set individually by each state authority. It is either granted under the Air Services Transit Agreement, or on case-by-case basis. States often charge reasonable fees for granting the right. The USA differentiates between enroute and oceanic fees, and Russia is known for charging high rate fees for flights over its territory. The second freedom can be characterized as the right to refuel or carry out maintenance in a foreign country, without embarking or disembarking passengers or cargo. This freedom is, thanks to modern efficient long range airplanes rarely used by passenger airlines, but often exercised by cargo carriers. Those two freedoms are both so called transit rights. Next two freedoms are both traffic rights. The third freedom grants the right to fly from one’s own country to another, and the forth freedom grants the right to fly from another country to one’s own. They are both usually based together on bilateral agreements and often further limited. The fifth freedom is the right to fly between two foreign countries during flights while the flight originates or ends in one’s own country. The fifth freedom is crucial for economic viability of long haul flights, but some countries are less generous in granting them, because they tend to protect local flag carriers from competition. Some, on the other hand, grant these rights in order to promote tourism or other economic interests. There are other four freedoms which have been added to the five above mentioned major freedoms and are also respected in the international air transportation. Those four freedoms all further regulate rights for operation on a territory of a foreign country.
The above mentioned rules on international air law are a necessary base for private air law. The following explanation of the individual rights and obligations of airlines, cargo air carriers, passengers and other parties involved in the air carriage of goods and passengers by air. It includes air carrier’s liability, ATC’s liability, third party liability, European air law, and security rights on aircraft.
The development of private air law can be surely dated back to the era of the first flight with post performed within a framework of most likely unwritten agreement between an aviation enthusiast and some form of postal service provider. However the official start can be dated back to 1923 when the predecessor of the later Warsaw Convention, Paris Convention, was proposed. Nevertheless, Warsaw Convention is the first complete and unified text setting rules for carriage by air. Private air law is now ruled mainly by international multilateral treaties which serve as a framework for further cooperation between individual states which is based on bilateral agreements, through which flag airliners and other providers of scheduled air transport serviced are granted their rights and privileges, and passengers and other clients are protected. This article will be focused mainly on international multilateral treaties. Legislation of the European Union and it implementation in Turkey will be also mentioned.
“The Warsaw Convention is an international convention which regulates liability for international carriage of persons, luggage or goods performed by aircraft for reward.” Article 1 of the convention states that “this convention applies to all international carriage of persons, baggage, or cargo performed by aircraft for reward” and that “it applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.” It was originally signed in 1929 and became effective in 1933. It was then amended in 1955 by The Hague Protocol and in 1975 by The Montreal Protocol. The Warsaw Convention including these two amendments is referred to as a unified text. This should not be confused with the Montreal Convention signed in 1999 which is a new document replacing the Warsaw Convention in the member state who ratified it. The Warsaw Convention is divided into a several chapters. It focuses on documents of carriage, luggage and ticket, next part is specifying liability of the carrier, and the third part contains provisions relating to combined carriage.
First of all, some terms from the above mentioned definition must be defined in order to determine the scope of this convention. Article 1(2) defines international carriage as “any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transshipment, are situated either within the territories of two High Contracting Parties or within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another State, even if that State is not a High Contracting Party.” The term aircraft is defined in Annex 6 to the Chicago Convention as “any machine that can derive support in the atmosphere from the reaction of the air other than the reaction of the air against the earth’s surface.” The second part of the definition therefore excludes hovercraft and other machines which are using ground effect to fly.
Second chapter of the Warsaw Convention determines what documents must be provided to a passenger. Passenger should receive a ticket containing an indication of the places of departure and destination, indication of at least one agreed stopping place, and a notification of applicability of the Warsaw Convention. However, “the absence, irregularity or loss of the passenger ticket does not affect the existence of the validity of the contract of carriage.” The same applies to a baggage check which shall be also delivered to the passenger. Documentation relating to cargo includes an air waybill which consists of three parts. Separate waybills may be required for cargo consisting of more then one package. The waybill shall analogically contain the same information as the passenger ticket, and lack of a waybill or its flaws do not affect validity of the contract of carriage.
Liability is for the scope of the Warsaw Convention defined in the Article 17. It regulates that “the carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” Accident is defined in Annex 13 to the Chicago Convention as “an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked in which a person is fatally or seriously injured, or the aircraft sustains damage or structural failure, or the aircraft is missing, or is completely inaccessible.” This definition is very broad and the terms embarking and disembarking mentioned in the Warsaw Convention shall be interpreted in accordance to this definition, so it should be a period of time during which a passenger is either in the aircraft, or directly in contact with any part of the aircraft, including parts which have become detached from the aircraft, or in direct exposure to jet blast.
Article 18 of the Warsaw Convention further establishes liability of air carrier for destruction or loss of, or damage to any registered baggage. The same liability applies to cargo unless the damage occurred due to an “inherent defect, quality or vice of that cargo, or defective packing of that cargo performed by a person other then the carrier or his servants or agents, or an act of war or an armed conflict, or an act of public authority carried out in connection with the entry, exit or transit of the cargo.” The Turkish Supreme Court has also ruled, that loss of baggage from a Hajj trip should be considered a mental injury resulting from a loss of precious items and presents from the pilgrimage, and therefore damages can be awarded not only for the lost baggage, but also for the personal injury occurring as a cause of loss of items of a special personal value and importance.
Nevertheless, liability of the air carrier is under the Warsaw Convention limited. Limits for bodily injury are set to 16 600 SDR. Damages for baggage and cargo are 17 SDR per kilogram. The sums can be higher, but any agreement lowering the amount of damages under this limit is void. The carrier can also exonerate from liability under various circumstance. First defense of the carrier is defined in the Article 20 which states that “the carrier shall not be liable if he proves that he and his servants and agents have taken all necessary measures to avoid the damage or that it was impossible for them to take such measures.” Alternative defense is by doctrine called contributory negligence which is defined in the Article 21 which states that “if the carrier proves that the damage was caused by or contributed to by the negligence of the person suffering the damage the court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability.” Nevertheless, liability of the carrier is not limited, as stated in Article 25, “if it is proven that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result.”
Carriers are also liable for delay as stated in Article 19 of the convention. Obligations and rules regarding delay are further specified in the IATA Conditions of Carriage. “If due to circumstance beyond its control carrier cancels or delays a flight, it shall either carry the passenger on another of its scheduled passenger services on which space is available, or reroute the passenger to the destination indicated on the ticket or applicable portion thereof by its own scheduled services of another carrier, or by means of surface transportation.”
If the Warsaw Convention is applicable, it is exclusive, and so “any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention, without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights.” Jurisdiction is further defined in Article 28 of the convention stating that “an action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties.” This includes various options. The actions can be brought “either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principle place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination.” Procedure is governed “by the law of the Court seized of the case.” Limitation for a legal action is 2 years.
Guadalajara Convention was signed in 1961 and complements the Warsaw Convention by further defining some important terms which help to clarify the scope of its application. For the purpose of this article, it’s important to define the term air carrier and mainly differentiate between the actual carrier and the contracting carrier and giving them different responsibilities and obligations. Contracting carrier is defined as “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.” Actual carrier is defined as “a person other than the contracting carrier, who, by virtue of authority from the contracting carrier, performs the whole or part of the carriage, but who is not with respect to such part a successive carrier within the meaning of the Warsaw Convention.”
On the bases of this division, contracting and actual carrier cooperate under various conditions, so doctrine recognizes several types of cooperation. The most common type of cooperation is above mentioned and defined charter, as it is the opposite of a scheduled flight. All of the capacity is sold to one or more charterers for the purpose of resale. It is called wet lease when an aircraft is available ready for operation of services with its crew on behalf or by an airline. Code sharing is another common practice when one flight may carry 2 or more flight numbers, or two carriers are involved and the passenger is required to change a plane. Combination of code sharing and lease is called block-space agreement under which a number of seats is allocated to an airline. Interlining is a form of “air travel in which the same ticket covers different legs of the journey flown by different airlines.” Substitution is another form of cooperation based on a decision of one air carrier to have its flight performed either by a different aircraft, or by another carrier. Franchise is another base on which two airlines can cooperate when complete package of business strategy is adopted by another undertaking.
Montreal Convention was signed on May 28, 1999 and became effective in November 2003. The Montreal regime newly created by the Montreal Convention is replacing the Warsaw Convention regime and will govern international carriage by air in the member states within the same scope of application. Its main goal is to unify rules and regulate some matters which have emerged due to fast development of air transport. This effort has been successful only partially, because there are still some states which have not ratified this convention, and therefore there are now too regimes applicable to the carriage by air. The Republic of Turkey has ratified the Montreal Convention in April 2009 and it finally came into force on March 26, 2011. The ratification was done with two reservations, so flight of non-commercial, and military purposes are exempted from its application.
Many of the provisions of the Montreal Convention are same or very similar to the Warsaw regime, and therefore only the main differences and significant changes will be pointed out. The most significant difference occurred in the protection of passengers. New limits of damages are set in Article 21 of the Convention, these limits were also reviewed in 2010 in accordance with Article 24. Compensation in case of death or injury of passengers is limited to 113 100 SDR. If a higher amount of compensations is sought by the claimant, carrier can defend itself by proving that the damage was caused due to carrier’s or its servant’s “negligence or other wrongful act or omission, or such damage occurred solely due to the negligence or other wrongful act or omission of a third party.” Article 22 of the Convention limits carrier’s liability in relation to delay, baggage and cargo. An air carrier is liable to damage occasioned by delay unless it took all necessary measures to avoid it, or it was impossible for it to take such measures. The limit for damage cause by delay are set to 4 694 SDR. “In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1 131 SDR for each passenger.” Limits for damages occasioned by delay or to baggage will not apply if proven “that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.” Limit for delay, loss, or damage to cargo is set to 19 SDR per one kilogram. Defense of contributory negligence and of wrongful act or omission of a person claiming compensation remained, and therefore carrier is in such cases exonerated from its liability. Burden of proof is with the carrier.
The Montreal Convention is, if applicable, exclusive as stated in Article 29, which says that “in the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights,” and no other form of damages shall be recoverable. Jurisdiction is extended, for bodily injury, to passenger’s “principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.” All the conditions in this provision are cumulative. Time limitation for a suit is also 2 years following the date of “arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.”
This EU regulation is another legal document adopted on February 11, 2004 regulating carriage by air mainly in the European Union. The scope of the provision is defined in Article 3. “This regulation shall apply to passengers departing from and to an airport located in the territory of a Member State” of the European Union. It also applies “to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State.” It is mainly focused on aspects of air carriage which are not regulated by international treaties, and so is considered not to be in collision with their exclusive provisions. It reflects reasons of air travel which is the speed, safety and comfort, and upholds rights of passengers in case of delay, denied boarding and cancelation of a flight. All payments based on the regulation are independent of the compensation for damage resulting from delay under the Montreal Convention.
Passengers are required to be present for check-in 45 minutes before departure, unless stated otherwise on their travel documents. The system of booking is very complex and not yet flawless, so an aircraft can be overbooked. In case of such occurrence, carrier must deny boarding the aircraft to some passengers. The carrier should first call for volunteers who would be willing not to fly as scheduled for offered reimbursement or rerouting. Passengers denied non-voluntarily have following rights. The same rights apply to cancelation of a flight. Passenger has right to care. The carrier must provide the passenger with meals and refreshments, hotel accommodation including transportation, and with free of charge communication possibility. Passenger has also right to reimbursement or rerouting. It is at passenger discretion to choose if he/she wants to be provided with reimbursement of the paid ticket and free of charge return flight ticket to the place of departure, or if he/she wants a re-routing offer to the final destination. Compensations for denied boarding and cancelation are, unlike in the Warsaw and Montreal Conventions, in Euros, and depend on the length of the flight. In case of a flight shorter then 1 500 km, the amount of compensation is 250 EUR, in case of a flight distance between 1 500 km and 3 500 km, the amount of compensation will be 400 EUR, and in case of a flight longer then 3 500 km, the amount of compensation will be 600 EUR. The same rights are granted in occurrence of a delay as defined in Article 6 of the Regulation, but passenger has no right to compensations. The distinction between cancelation and delay is not yet very clear, and should be defined better. Another form of inconvenience caused by the carrier is upgrading or downgrading of a class. Placing passenger in a higher class shall be done free of charge, and when placing passenger in a lower class then purchased, he/she shall be reimbursed by 30% to 75% of the ticket price depending on the traveled distance.
Article 3 states that “an operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.” Sudden unexpected technical failure or severe weather conditions can be examples of an extraordinary circumstance beyond carrier’s control. Nevertheless, carrier is always obliged to take all necessary measures in order to predict and prevent such conditions if possible not just by strictly adhering to legal requirements, but also by taking other preventive measures.
Despite the fact that the Republic of Turkey has not become a member of the European Union, it has been adopting its legislation and this Regulation is not an exception. Therefore this regulation has been adopted and is also applicable in Turkey. Another law regulating aviation in Turkey is Turkish Civil Aviation Law which states in its Article 106 that Turkish Commercial Code is a subsidiary legislation in the matter regarding aviation.
Civil Aviation, or rather more broadly carriage by air, is nowadays regulated on many levels by various laws with different scope of application. Therefore it is often the most important to define and determine what law and in which order applies to the particular situation resulting from a legal relationship between an air carrier and a passenger or a client. Therefore this article should be seen merely as an introduction into the complex legal system of air law than as instruction for reaching damages or any other form of condemnation from providers of air transport services. Air law will surely continue to develop and react to rapidly evolving aviation industry, revolutionary inventions as well as new needs of passengers and clients whose number is rising every year while air travel is becoming common way of transport.
 Convention on International Civil Aviation
 In April 2013, Qatar officially offered to serve as a permanent seat of ICAO. The proposal was reasoned by better geographical location easily reachable from all parts of the world (especially closer to Europe and Asia), Canadian cold winters and also late issuance of visas by Canadian state authorities for ICAO diplomats. Moving ICAO’s permanent seat was opposed by France, Great Britain and USA, and Qatar later withdraw its bid.
 Air Traffic Control is a service provided by ground-base controllers who direct aircraft on the ground and the air. (Source: http://www.princeton.edu/~achaney/tmve/wiki100k/docs/Air_traffic_control.html)
 Convention for the Unification of certain rules relating to international carriage by air
 Article 1, Warsaw Convention
 Article 1 (2), Warsaw Convention
 Article 3 (2), Warsaw Convention
 Article 17, Warsaw Convention
 Article 18, Warsaw Convention
 Special Drawing Rights (SDR) is a new supplementary foreign exchange reserve assets defined and maintained by International Monetary Fund. It is not considered to be a currency, but rather a claim to a currency held by IMF member countries for which they may be exchanged. SDR have replaced Golden Frank as a currency previously used to the treaties as a universal measurement for the amount of damages rewarded. SDR are better for their compatibility and stability. Unfortunately, they were not implemented in the EC Regulation No. 261/2004 which uses Euros. It is understandable, since it is applicable in the member states of the EU. On the other hand provisions of this regulation in a few cases overlap with the provisions of the Montreal Convention which uses SDR, so it would help to keep international private air law more coherent if SDR would be used as well. Use of SDR would not cause any problem, because SDR and Euros may be freely exchanged.
Article 20, Warsaw Convention
 Article 21, Warsaw Convention
 Article 25, Warsaw Convention
 Article 24, Warsaw Convention
 Article 28, Warsaw Convention
 Article 28 (2), Warsaw Convention
 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
 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.
 Article 1 (b), Guadalajara Convention
 Article 1 (c), Guadalajara Convention
 Convention for the Unification of Certain Rules for International Carriage by Air (1999)
 Scope of application is defined in Article 1 of the Montreal Convention.
 Article 21 (2), Montreal Convention
 Article 22 (2), Montreal Convention
 Article 22 (5), Montreal Convention
 Article 29, Montreal Convention
 Article 33 (2), Montreal Convention
 Article 35 (1), Montreal Convention
 REGULATION (EC) No 261/2004 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91
 Article 3, Regulation (EC) No 261/2004
 Article 9, Regulation (EC) No 261/2004
 Article 8, Regulation (EC) No 261/2004
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