carrier presence in the jurisdiction is contemplated in both cases, notwithstanding the new language in the English text.

Article XIII

The article is new to the Convention. Whether or not it is necessary for its purposes, this article provides that no provision in the Convention, presumably the absolute liability provision, prejudices the right of recourse of a person liable under the Convention against any other persons.

Article XIV

This amendment adds Article 35A to the Convention. It is an entirely new article expressly recognizing the right of a contracting state to operate within its territory a supplemental compensation system. This article specifies that a supplemental compensation system not imposed added liability or financial or administrative burdens on the carriers. It also makes clear that such a system must not give rise to discrimination between carriers and requires that the benefits under the system be extended to passengers without regard to the carrier involved. Finally the article makes clear that any passenger, or person claiming through him, who has contributed to the system is entitled to its benefits. This is a very important article added at the behest of the United States to facilitate a plan for supplemental compensation within its territory. Article III [Article XV of Guatemala]

The Guatemala Protocol added Article 42 to the Convention. That article provides for convening Diplomatic Conferences of the Parties to Guatemala Protocol during the fifth and tenth years after the Protocol comes into effect to review the limits of death and injury of passengers set forth in Article 22, Paragraph 1(a) of that Protocol. It further provides that any increases in the limit in force on the date of such expenses not exceed 187,000 francs ($12,500 at the time of the Guatemala Conference). Under this article the respective increases up to the specified maximum will become effective unless, before December 31 of the fifth and tenth years, the Conference by a two-thirds majority of the parties present and voting decides otherwise. Article 42 of the Guatemala Protocol further provides that the applicable limit in passenger death and injury cases shall be the one in effort on the date of the event causing the death or injury. In short, this article provides for an increase of the limit by approximately $25,000-in two steps unless otherwise decided by the Diplomatic Conference.

CHAPTER II-SCOPE OF APPLICATIONS OF THE CONVENTION AS AMENDED Article IV

This article does not amend the amended article of Warsaw. It uses the identical standard of Article 1 of the original convention in determining specifically the "international coverage" to which the Guatemala Protocol and Additional Protocol 3 apply. It is included in both Protocols to avoid uncertainty since, at lease initially, there will be some divergence between those countries signing

the Protocols and those who are parties to the original Warsaw Convention as amended by The Hague Protocol.

CHAPTER III-FINAL CLAUSES

Articles V through XIV, the so-called final clauses are not amendments to the Warsaw Convention. They set forth such things as who may sign, the effect of ratification, entry into force, method of accession, denunciation, and the nature of the reservations; the proper reference to the protocol; how long it remains open for signature and who may sign; effect of ratification by States which are not parties to the Warsaw Convention as amended by any of the preceding protocols.

Article V provides that the treaty will be known as the Warsaw Convention as amended at The Hague, 1955, at Guatemala City, 1971, and by the Additional Protocol No. 3 of Montreal, 1975, and that it be read and interpreted as a single instrument.

Article VI opens the protocol for signature by any State until the protocol comes into force.

Article VII specifies that: the protocol shall be subject by ratification by the signatory parties; ratification by States not a party to the Warsaw Convention or any of the preceding protocols shall have the effect of accession to convention described in Article V; and instruments of ratification are to be deposited with the Government of the Polish People's Republic.

Article VIII specifies that the Protocol shall come into force 90 days after the deposit of the 30th ratification and that, when it does, it is to be registered with the United Nations by the Polish Government. This is a change from Article XX of the Guatemala Protocol which, in addition to 30 ratifications required to bring it into effect, contained the further condition that the five ICAO member states whose airlines had at least 40 percent of the total international scheduled traffic in 1970 must be among the 30 ratifying states. This condition would have prevented the protocol from coming into effect unless ratified by the United States.

Article IX states that, after coming into force, the protocol will be open for accession by any nonsignatory state and that accession by a state which is not a party to the Warsaw Convention or any of the protocols to it shall have the effect of accession to the convention as amended by each of the protocols-i.e., they will become parties to the updated treaty. Accession will be effective on the 90th day following deposit of the instrument of accession with the Polish Government.

Article X provides for denunciation of Protocol 3 effective 6 months after receipt of notification by the Polish Government. It further specifies that, as between the parties of the protocol, denunciation by any of them of the Warsaw Convention, The Hague Protocol, and the Guatemala Protocol shall not by construed as denunciation of the updated treaty-i.e., the Warsaw Convention as amended at The Hague, 1955, at Guatemala City, 1971, and by Additional Protocol No. 3 of Montreal, 1975. [This provision is in keeping with the belief of the United States that the best way to achieve universality swiftly would be denunciation of the Warsaw Convention by the United States.]

Article XI deals with reservations to the protocol. It permits the following: a reservation to Article 22(3), the provision dealing with costs and lawyers' fees, by states whose courts under its laws are not permitted to award such costs; a reservation by any state for carriage by its military authorities who have reserved the whole capacity of an aircraft registered in that state; and a reservation to the updated treaty insofar as the carriage of cargo, mail, and postal packages are concerned. Any of these reservations may be withdrawn at any time by notification of the Polish Government.

Article XII provides for prompt notification of the parties to the convention, or amended convention, as well as the signatory or acceding states to Additional Protocol No. 3 and ICAO of the state of signature; deposit of instruments of ratification or accession; and the effective date of the protocol and other relevant information. Article XIII merely provides that reference to the Warsaw Convention in the Guadalajara Convention shall be to the updated convention in cases where Guadalajara is governed by Protocol No. 3. Article XIV left the protocol open for signature at ICAO [until January 1, 1976] until it comes into force and requires ICAO promptly to notify the Polish Government of any signature and the date thereof while the protocol is open for signature at ICAO.

[For and article-by-article description of Montreal Protocol No. 4, see Appendix I to this report for a consolidated text of the Warsaw Convention as it would be amended. Treaty articles from Protocol No. 4 are designated as such throughout.]

X. ENTRY INTO FORCE

In accordance with Article VIII of Protocol No. 3 and Article XVIII of Protocol No. 4, each protocol will come into force on the 90th day following the deposit of the 30th instrument of ratification.

XI. TEXT OF THE RESOLUTION OF RATIFICATION

Resolved, (two-thirds of the Senators present concurring therein) That the Senate advise and consent to the ratification of Additional Protocol No. 3 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on October 12, 1929, as Amended by the Protocols done at the Hague, September 28, 1955, and at Guatemala City, March 8, 1971 (hereinafter, Montreal Protocol No. 3); and Montreal Protocol No. 4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on October 12, 1929 as Amended by the Protocol done at The Hague on September 8, 1955 (hereinafter Montreal Protocol No. 4), provided that:

(1) the President shall not deposit the instruments of ratification for the United States until he has determined that a satisfactory supplemental compensation plan, as reviewed and approved by the Secretary of Transportation, will be in operation for the United States; and

(2) the President shall give notice of denunciation of these protocols by the United States if, at any time after their entry into force for the United States, he determines that a satisfactory supplemen

tal compensation plan, as periodically reviewed by the Secretary of Transportation in light of new economic or other relevant circumstances, is not in operation for the United States, or that the best interests of U.S. airline passengers are not otherwise served by continued adherence to these protocols by the United States; and

(3) the U.S. Government shall continue actively to seek to negotiate higher limits on the liability of carriers than those provided under these protocols.

MINORITY VIEWS OF SENATORS BIDEN AND SIMON

The Montreal Protocols would amend the international treaty known as the Warsaw Convention that governs liability in international air transportation. On March 8, 1983, the Senate failed to ratify the Protocols by a vote of 50-42, 12 votes shy of the constitutionally required "two thirds of the Senators present." Because of a parliamentary maneuver by then Senate Majority Leader Howard Baker, the Protocols remained before the Senate for potential future consideration.

We strongly object to the Montreal Protocols and to the underlying Warsaw Convention, despite changes made to the Supplemental Compensation Plan that accompanies adoption of the Protocols. Many Senators objected to the Montreal Protocols in 1983 as unfair to the interests of the American traveling public. In 1990, the Protocols remain deeply objectionable as they are restrictive of the rights of U.S. citizen air travelers and would limit inappropriately and unnecessarily the liability and responsibility of international airlines.

WARSAW CONVENTION

The Warsaw Convention is a system of liability limits formulated in 1929 to protect the infant airline industry. It limits the liability of a carrier to $10,000 per passenger (this was subsequently increased by an inter-carrier agreement to $75,000 per passenger after the United States threatened to denounce the Warsaw Convention in 1966 to protest its low liability limits). Upon proof of "willful misconduct," however, the airline is liable for provable damages without limitation.

There are three points to understand about the Warsaw Convention before proceeding to consideration of the Protocols. First, while some deference must be given to the importance of relationships between governments with respect to international air travel, the Warsaw Convention plainly deals with relationships which exist between airlines and people who use them. The Warsaw Convention is not a treaty among governments concerning their official acts. It is essentially legislation affecting private rights-and American rights by way of treaty. Second, since the original purpose of the Warsaw Convention was to limit liability for international airlines in 1929, when international aviation was in its infancy, the Convention is outdated. Third, although the United States Senate approved of the Warsaw Convention on June 15, 1934, no debate was recorded on the Convention either in the Senate or the Foreign Relations Committee. The Senate apparently acted in a routine fashion on a matter it did not consider of great importance. It would not be unreasonable for the Senate to give