1999, ICAO Doc 9740. The text of the Montreal Convention is also contained in Annals of Air and
Space Law, vol. 24, p. 425 (1999).
184Legal Committee 32nd Session, Montreal, 15–21 March 2004, Report, Doc 9832-LC/192 at 3-1.
noteworthy that, linked to the absolute liability of the operator regarding the 100,000 SDR limit, is a proviso to the effect that, in instances where liability exceeds the limit, the operator shall not be liable for damages if he proves that it was free from fault (that the damage was not due to its negligence or other wrongful act or omission of that of its servants) or that the damage was solely due to the negligence or other wrongful act or omission of another person.185
This provision is identical to Article 21 of the Montreal Convention of 1999. Another similarity between the two Conventions is found in Article 6 of the new draft Convention and Article 20 of the Montreal Convention, both of which provide that if the operator proves contributory negligence or other wrongful act or omission of the person claiming compensation or another deriving rights therefrom, as having caused the damage, the operator could exonerate himself wholly or partly from liability to the extent that such actions or omissions caused the damage. There is a similar provision for death or injury of passengers in both the Conventions. This symbiosis between the modernized Rome Convention and the Montreal Convention brings to bear the need to clearly identify the scope of liability of the two regimes. Simply put, there is absolute or strict liability of the operator up to a limit of SDR 100,000. Thereafter, over and about this amount of liability, if the carrier proves no fault on his part, or a wrongful act or omission or contributory negligence on the part of another, he could exculpate himself. In other words, for large sum claims, the onus of proving that the operator is not liable is on the operator based on a no fault theory. The entire theory of liability for claims over SDR 100,000 revolves round the word “negligence” or lack thereof applying equally for both plain negligence and contributory negligence. These are essentially tort law concepts but the essen-tial feature in this instance is that there is seemingly a presumption of negligence on the part of the carrier to prove his innocence. It is an ineluctable principle of tort law that tortuous liability exists primarily to compensate the victim by compelling the wrongdoer to pay for the damage he has done.186
Theoretical bases of tort liability in air law have repeatedly been aligned to presume fault on the part of the carrier until he rebuts the presumption of liability. An earlier instance in 1929 at the Warsaw Conference leading up to the Warsaw Convention on private liability of the carrier also adopted a similar approach where one of the fundamental deviations from the fault liability principle in the context of the Warsaw Conference was that, instead of retaining the basic premise that the person who alleges injury must prove
185Article 3.3(a) and (b). In the context of private air carrier liability under the Warsaw system there are two analogies that are worthy of note. In Haddad v. Cie Air France (1982) 36 RFDA 355, where an airline had to accept suspicious passengers who later perpetrated a hijacking, the court held that the airline could not deny boarding to the passengers who later proved to be hijackers. In that instance the airline had found it impossible to take all necessary precautions and was considered sound in defence under Article 20 (1). A similar approach was taken in the case of Barboni v. Cie Air-France (1982) 36 RFDA 358, where the court held that when an airline receives a bomb threat whilst in .ight and performs an emergency evacuation, a passenger who is injured by evacuation through the escape chute cannot claim liability of the airline since it would have been impossible for the airline to take any other measure.
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