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9 Air & Space Law. 1 (1994-1995)

handle is hein.journals/airspaclaw9 and id is 1 raw text is:          Forum
      Committee
           on
    Air and Space
          Law
American Bar Association


                                   -00W




'HE AIR AND SPACE LAWYER


Volume 9, Number 1


Stummer 1994


A European Perspective on Air

                Carrier Liability

                       BY BRUNO BERTUCCI*


Aviation claims in Europe
are today without doubt
influenced by the (lisplles
on the controversial matter
of liability limitation. Many
airlines, governments, and
EC Commissions, consumer
representatives, mantfactur-
ers, insurers, and various
other entities are now debat-
ing passenger liability limits
and how to intervene in
international air transport
regulations.
    The Japanese set the tone for the debate and Etro-
pean initiatives on the subject of air carrier liability.
On November 20, 1992, the ten Japanese airlines
simultaneously abolished the liability limit for dam-
ages for passenger injury or death in international car-
riage by air, waiving the existing contractual limitation
with the approval of the Japanese minister of trans-
port. 'rhis action was based on the provision for a
special contract under Article 22(1) of tile Warsaw
Convention, to be incorporated in tile condition of
carriage.'
    The Italians also appeared on the scene. First, the
Constitutional CourtV declared unconstitutional Laws
No. 841/1932 and 1832/1962 with regard to the liabili-
tv limits for lersonal injury or death laid down by the
\Varsaw Convention as anended by the lague Proto-
col. Second, Law 274/88 obligated all carriers whose
routes have a departure or a landing within Italian ter-

* Iruno Burtucci graduated in law from the University of Trieste
with a slcialty in marino and aviation law. I i atso received a spe-
cial dipton in labor law and company mlanagemecint . Alter two
years of pra:tice with a 'riesth law firm, lie joined Assicurazioni
Gunurali S.p.A., the largest Italian insurance :ompany. in  fiB(i and
has loa', in (]harge( of the company's aviationi and[ Space cltins
deparnent since i 190.


ritory to cover their liability for at least 100,000 SDR
(special drawing rights) per passenger in order to ben-
efit from the limitation laid down by the Varsaw Con-
volition (as amended by the I lague Protocol).:
    The main issues regarding the most recent devel-
opments in Europe are outlinel below:

European Commission Initiative
The first move was made, early in 1993, by the Direc-
torate General of the European Commission responsi-
ble for Transport Policy (DG VIII). The meeting among
the EC member states was held in Brussels on January
18, 1993, and also included Norway and Sweden.4
The initiative was intended to cover the EC member
states and other countries (such as Norway and Swe-
den) that had entered into carriage-by-air agreements
with the European Community., The agreement arose
frcm concerns that the existing mandatory liability
limits were too low. In addition, the European Com-
mission emphasized the importance of a uniform regu-
lation for all EC members, especially considering the
existing divergence of mandatory requirements within
tile EC countries for both domestic and international
air travel. The Commission also agreed that it was not
productive to expect significant developments at the
ICAO level or from Montreal Protocol No. 3 and there-
fore concluded that regulatory action at the European
level was necessary.
    The debate also centered on the appropriate level
of liability limits and the question of breaching these
limits under article 25 of the Warsaw Convention.
    The European Commission also discussed how
the EC member states that had ratified Montreal Proto-
col No. 3 would be affected by the new regulation as
well as the issue of joint responsibility among air car-
riers, manufacturers, airport:i. and air traffic control
operators. Finally, it was felt necessary to provide for
quick settlements of undisputed amounts and for the


(continwd on page 131)

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