The Futility of Unification and Harmonization in International ...

to the bodies to which they reported. That the Committee remained active long after the adoptionof the Warsaw Convention, and throughout a period of unprecedented international economic andpolitical disruption, says something about the strength of its members’ commitment to further changesin the international legal environment. That the countries interested in international aviation adoptedno other unification instruments after 1929 also indicates that the Committee’s preference for newlaw was greater than that of the broader aviation community.The Warsaw Convention contains a number of clear-cut rules that give courts and otherdecisionmakers little room to maneuver. Particularly striking are its strict monetary limits on thecarrier’s liability for injury to passengers and cargo. Article 22(1) of the Convention sets a cap of125,000 French francs, valued in terms of gold pursuant to the formula found in Article 22(4), for37injuries to a passenger, and 250 francs a kilogram for cargo. These limits do not apply in cases38where the carrier’s “willful misconduct” causes injury. Carriers may not propose lower limits but39may negotiate higher ones. As with the Hague Rule’s similar provisions, these Articles at aminimum allowed carriers to unbundle insurance from shipping, and probably enabled them toprocure additional income from their customers. We similarly in no position to prove that thisoutcome necessarily departed from efficiency, because it allowed carriers to concentrate on their corebusiness and to let others deal with the challenge of predicting accident rates during their industry’s40developmental period. But, in the presence of governmental regulation, we also can regard Article22 as consistent with the indirect extraction of monopoly rents by an industry that enjoyed unusualprotection from competition.Other Convention provisions seem both clear and pro-carrier. For example, Article 26(2) giveshippers of hand luggage three days, and other shippers seven days, to complain about damage to41goods after taking possession of them from the carrier. Failure to notify the carrier within thosetime periods results in a forfeiture of all rights to compensation.The provisions defining the scope of the Convention also indicate a commitment to precision.All flights that, “according to the contract made between the parties” (i.e., the face of the ticket)2137Warsaw Convention Art. 22. The 1955 Hague Protocol to the Convention doubled the limit for personal injuries.Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, September28, 1955, Art. XI. The 1966 Montreal Agreement, which applies only to flights that have connecting points in the UnitedStates, further raised the personal injury limit to $ 75,000. U.S. courts, perhaps in recognition of the pro-carrier premisesunderlying these provisions, have enforced these limits rigorously. See, e.g., Trans World Airlines, Inc. v. Franklin Mint Corp.,466 U.S. 243 (1984) (U.S. court will convert Article 22 limits into dollars using the gold value of dollars at the time of theConvention’s adoption).38Warsaw Convention Art. 25.39Id. Art. 23.40The recent efforts of international air carriers to relax these limits indicates that the freedom to unbundle insurancefrom carriage serves means less to a mature industry with stable and predictable accident rates. Finnair now publicizes thefact that it will accept unlimited liability for personal injuries. Perhaps to thwart competition over this service and to make iteasier for airlines to pass on the cost of coverage to their passengers, the Legal Committee of the ICAO in 1997 recommendeda major overhaul of Article 22’s personal liability cap. Under its proposal, no absolute limit would exist for carrier liability,although states could award only $150,000 per person without a determination of fault.41Warsaw Convention Art. 26(2).