By Kurt Grönfors

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5 However, such a theory, involving a serious complication of the Convention, is supported neither by the text nor by • This problem is touched upon infra (4) and (7). 5 Drion, op. , No. 120 (p. 137), seems to consider this as a possibility (" ... both the charterer and the operator would be carrier in the sense of the Convention, at least of Article 22 ... "). Probably he is aiming only at the special case of successive carriage, Articles 1 (3) and 30, as compared with all other provisions about the carrier, cf.

Deciding the Applicability of the Warsaw Rules 51 to be a carrier. But does the charter agreement between the travel agency and the owner of the plane involve an obligation to carry? The answer will most probably be Yes, and using this test the owner would be qualified as a carrier. The two theories seem in such a case to lead to different results and Hesse's argument will then be quite understandable. But we cannot be quite sure that the answer will be affirmative. And here we are facing a difficulty which affects the whole idea of the obligation to carry as the test of the applicability of the Convention.

On p. 350. ) 31 Hiirzeler, Probleme des Chartervertrags nach Luftrecht, Diss. Zurich 1948, p. 28. Deciding the Applicability of the Warsaw Rules 47 ment,B 2 and at this time it is as a rule possible to fill in all the required particulars. But not in all cases. If, for example, the charterer himself is responsible for the loading of the plane-which is perhaps not common but is nevertheless a situation that arises in airline practice33-it may be virtually impossible for the airplane owner to take any measures in order to secure the above-mentioned particulars.

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