While determining the provisions applicable to international air shipment, the provisions on the scope of application of the international treaties that Turkey is a Party to, should be considered. Conventions on the relevent subject that Turkey is a party to, are as follows:
THE WARSAW CONVENTİON AND THE MONTREAL CONVENTİON
In terms of the Warsaw Convention and the Montreal Convention, the point that should be emphasized first is that Montreal Convention has not completely abolished the effect of the Warsaw Convention. In other words, although the Montreal Convention has been arranged to eliminate the legislative confusion and ensure uniformity in international shipments by air, the Warsaw Convention is still valid for the states that are not parties to the Montreal Convention but are parties to the Warsaw Convention.
The Scope of Application of the Warsaw Convention
According to the 1st Article of the Warsaw Convention on the scope of application, the Convention "will apply to all international carriage of people, luggage or goods for a fee by aircraft. It will apply equally to free transportation by aircraft (the Warsaw Convention Provisions) by an air transport operator.
The Scope of Application of the Montreal Convention
Article 1 of the Montreal Convention on the field of application also introduces the same regulations as the Warsaw Convention.
- This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.
- For the purposes of this Convention, the expression "international carriage" means 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 transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.
- Carriage to be performed by several successive carriers is deemed, for the purposes of this Convention, to be one undivided carriage if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territory of the same State.
Since the Montreal Convention and the Warsaw Convention determine the fields of application in the same way and are in effect at the same time, the issue of which regulation is the priority arises in cases where both regulations have the ability to implement. This problem has been resolved in Article 55 of Montreal Convention. After counting the Warsaw Convention and all documents amending it, Article 55 states that the Montreal Convention has been recognized to be superior where both regulations are capable of being implemented, by saying "This Convention shall prevail over any rules which apply to international carriage by air within the territory of any single State Party to this Convention by virtue of that State being Party to one or more of the instruments referred to in sub-paragraphs (a) to (e) above."
Liability and Relief Conditions According to the Warsaw Convention
Air transport covers the period of time that the baggage or cargo is under the protection of the carrier at an airport or in an aircraft or any place in the event of landing outside the airport. However, the teaching is based on the possession of the carrier in terms of all liability reasons during transfer in transit flights and even if the cargo is not in the airport or aircraft. On the other hand, if the carrier proves that the person claiming compensation or the person obtaining the right from the person claiming compensation has caused the damage or participated, the carrier shall not be liable partially or completely to the person claiming compensation to the extent that the damage was caused or participated by such a fault. (The Warsaw Convention Art. 21/2)
Notification of the Damage, Loss or Late Delivery
The obligation of notification regarding the carriage of goods is regulated in the Warsaw Convention Article 26 (The obligation of notification regarding baggage is also regulated in this Article.) According to the Article, acceptance of the goods without objection by the person authorized to receive the delivery shall be deemed valid evidence that they were delivered in good condition and in accordance with the transport document, until the contrary is proved. In case of damage, the person authorized to receive the delivery is obliged to notify the carrier immediately after the damage is learned and within fourteen days after receipt at the latest. In case of delay, it is obligatory to give notice within twenty-one days at the latest from the date when the baggage or cargo is made available for delivery. The notice must be sent within these periods as a separate written notice or should be written on the transportation document. If a notice is not made within these periods, a lawsuit cannot be brought against the carrier, except for fraudulent behavior.
Liability of the Carrier for Damage, Loss and Late Delivery in the Shipment of Goods by Air under the Montreal Convention
The Montreal Convention that Turkey is a Party to (Montreal Cınvention as amended with the Hague) has adopted the Montreal Protocol No. 4 (v.s. listed above in the table of the Warsaw Convention system) that amends the Warsaw Protocol, on the regulations concerning the shipment of goods. (This situation makes the Turkish Civil Aviation Law and Montreal Convention parallel in terms of liability limits.) Transport by air covers the period in which the cargo is under the responsibility of the carrier. The Montreal Convention unambiguously linked liability to the carrier's dominance over the goods. However, special cases are also regulated in which the carrier will be relieved of liability arising from damage to property. According to the Montreal Convention Article 18/2, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damage to, the cargo resulted from one or more of the following:
- inherent defect, quality or vice of that cargo;
- defective packing of that cargo performed by a person other than the carrier or its servants or agents;
- an act of war or an armed conflict;
- an act of public authority carried out in connection with the entry, exit or transit of the cargo.
In Article 19 of the Montreal Convention, the liability of the carrier arising from the delay is regulated. The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.The Montreal Convention has regulated a general relief clause in the Article 20. If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger.
Notification of the Damage, Loss or Late Delivery
The obligation of notification and the consequences of non-compliance with this obligation are regulated in article 31 of the Montreal Convention. Failure to notify on time in terms of damage, loss and late delivery eliminates the right to claim compensation.
LOSS OF THE CARRIER'S RIGHT TO BENEFIT FROM LIMITED LIABILITY
According to the Turkish Civil Aviation Law and the Warsaw Convention, among the liability regimes described above, if the carrier or its workers are proved to be caused by a reckless act or negligence knowing the possibility of damage, the limitations of liability will not apply. (Turkish Civil Aviation Law Art. 126, Warsaw Convention Art. 25) For this, according to article 25 of the Warsaw Convention, it must be proved that the worker acted within the framework of his own duty in the event of such an act or negligence of the carrier's workers, The Montreal Convention, on the other hand, does not include a regulation in this direction.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.