Rule 55: Liability of Carriers
 
ADVICE TO INTERNATIONAL PASSENGERS ON CARRIER LIABILITY
Passengers on a journey involving an ultimate destination or a stop in a country other than the country of departure are advised that international treaties known as the Montreal Convention, or its predecessor, the Warsaw Convention, including its amendments, may apply to the entire journey, including any portion thereof within a country. For such passengers, the treaty, including special contracts of carriage embodied in applicable tariffs, governs and may limit the liability of the carrier in respect of death or injury to passengers, and for destruction or loss of, or damage to, baggage, and for delay of passengers and baggage.
  1. For the purpose of all international carriage, Hawaiian’s liability shall be governed by this Rule 55. This Rule 55 incorporates the applicable portions of the Warsaw Convention, 1929, the Warsaw Convention as amended at the Hague, 1955 and by Protocol No. 4 of Montreal (collectively, “Warsaw Convention”) and the Montreal Convention, 1999, as agreed to in the Implementing Provisions Agreement under the Warsaw and Montreal Conventions and approved by the United States Department of Transportation Order 2009-12-20, which shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.

    Successive Carriers
    Carriage to be performed under one ticket or under a ticket and any conjunction ticket issued in connection therewith by several successive carriers, with the knowledge and consent of the subsequent carrier, is regarded as a single operation.
  2. Laws and Provisions Applicable
    1. The carrier shall be liable under Article 17 of the Warsaw Convention or Montreal Convention, whichever may apply, for recoverable compensatory damages sustained in the case of death or bodily injury of a passenger, as provided in the following paragraphs:
      1. The carrier shall not be able to exclude or limit its liability for damages not exceeding 113,100 special drawing rights (SDRs).
      2. The carrier shall not be liable for damages to the extent that they exceed 113,100 SDRs for each passenger if the carrier proves that:
        1. such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or
        2. such damage was solely due to the negligence or other wrongful act or omission of a third party.
      3. Except as otherwise provided, the carrier reserves all defenses and limitations available under the Warsaw Convention or the Montreal Convention, whichever may apply to such claims including, but not limited to, the exoneration defense of Article 21 of the Warsaw Convention and Article 20 of the Montreal Convention, except that the carrier shall not invoke Articles 20 and 22(1) of the Warsaw Convention in a manner inconsistent with paragraphs (1) and (2) hereof.
      4. With respect to third parties, the carrier reserves all rights of recourse against any other person, including without limitation, rights of contribution and indemnity.
      5. The carrier agrees that, subject to applicable law, recoverable compensatory damages for such claims may be determined by reference to the laws of the country of the domicile or permanent residence of the passenger.
    2. In cases of bodily injury or death, the carrier shall make an advance payment where the carrier determines it is necessary to meet the immediate economic needs of, and hardship suffered by, a passenger as provided in the following paragraphs:
      1. Unless a dispute arises over the identity of the person to whom an advance payment shall be made, the carrier shall, without delay, make the advance payment to the passenger in an amount or amounts determined by the carrier in its sole discretion. In the event of death of a passenger, the amount of the advance payment shall not be less than 16,000 SDRs, which shall be paid to a representative of the passenger's next of kin eligible to receive such advance payment as determined by the carrier in its sole discretion.
      2. The carrier shall make the advance payment as an advance against the carrier's liability under the Warsaw Convention, or the Montreal Convention, whichever may apply. An advance payment shall not constitute recognition of liability. An advance payment shall be offset against, or deducted from the payment of, any settlement or judgment with respect to any claim for compensation on behalf of the passenger.
      3. The carrier, in making an advance payment, does not waive any rights, defenses, or limitations available under the Warsaw Convention, or the Montreal Convention, whichever may apply, to any claim, nor shall acceptance of an advance payment constitute a release of any claim, whatsoever, by any person.
      4. The carrier, in making an advance payment, preserves its right to seek contribution or indemnity from any other person for such payment, which shall not be deemed to be a voluntary contribution or contractual payment on the part of the carrier.
      5. The carrier may recover an advance payment from any person where it is proven that the carrier is not liable for any damage sustained by the passenger, or where it is proven that the person was not entitled to receive the payment, or where and to the extent that it is proven that the person who received the advance payment caused, or contributed to, the damage.
    3. The carrier shall be liable for damage occasioned by delay in the carriage of passengers by air, as provided in the following paragraphs:
      1. The carrier shall not be liable if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage, or that it was impossible for it or them to take such measures.
      2. Airport, air traffic control, security, and other facilities or personnel, whether public or private, not under the control and direction of the carrier are not servants or agents of the carrier, and the carrier is not liable to the extent the delay is caused by these kinds of facilities or personnel.
      3. Damages occasioned by delay are subject to the terms, limitations and defenses set forth in the Warsaw Convention and the Montreal Convention, whichever may apply. They include foreseeable compensatory damages sustained by a passenger and do not include mental injury damages.
      4. The carrier reserves all defenses and limitations available under the Warsaw Convention or the Montreal Convention, whichever may apply to claims for damage occasioned by delay, including, but not limited to, the exoneration defense of Article 21 of the Warsaw Convention and Article 20 of the Montreal Convention. Under the Montreal Convention, the liability of the carrier for damage caused by delay is limited to 4,694 SDR per passenger. The limits of liability shall not apply in cases described in Article 25 of the Warsaw Convention or Article 22 (5) of the Montreal Convention, whichever may apply.
    4. The carrier is liable for damages sustained in the case of destruction or loss of, damage to, or delay of checked and unchecked baggage, as provided in the following paragraphs:
      1. Except as provided below, the liability of the carrier is limited to 1,131 Special Drawing Rights for each passenger in the case of destruction, loss, damage, or delay of baggage, whether checked or unchecked, under the baggage liability limits of the Montreal Convention. Unless the passenger proves otherwise:
        1. all baggage checked by a passenger shall be considered to be the property of that passenger;
        2. a particular piece of baggage, checked or unchecked, shall not be considered to be the property of more than one passenger; and
        3. unchecked baggage, including personal items, shall be considered to be the property of the passenger in possession of the baggage at the time of embarkation.
      2. If a passenger makes, at the time checked baggage is handed to the carrier, a special declaration of interest and has paid has paid a supplementary sum, if applicable, (such as an Excess Value Charge pursuant to Rule 125), the carrier will be liable for destruction, loss, damage, or delay of such checked baggage in an amount not exceeding the declared amount, unless the carrier proves that the declared amount is greater than the passenger's actual interest in delivery at the destination.
      3. In the case of unchecked baggage, the carrier is liable only to the extent the damage resulted from its fault, or that of its servants or agents.
      4. The carrier is not liable for destruction, loss, damage, or delay of baggage not in the charge of the carrier, including baggage undergoing security inspections or measures not under the control and direction of the carrier.
      5. The carrier reserves all defenses and limitations available under the Montreal Convention including, but not limited to, Article 19 of the Montreal Convention and Article 20 of the Montreal Convention. The limits of liability shall not apply in cases described in Article 22 (5) of the Montreal Convention.
  3. Limitation of Liability
    Except as the applicable Convention or other applicable law may otherwise require:
    1. Carrier is not liable for any death, injury, delay, loss, or other damage of whatsoever nature (hereinafter in this tariff collectively referred to as "damage") to passengers or unchecked baggage arising out of or in connection with carriage or other services performed by carrier incidental thereto, unless such damage is caused by the negligence of carrier. Assistance rendered to the passenger by carrier's employees in loading, unloading, or transshipping baggage shall be considered as gratuitous service to the passenger. Carrier is not liable for damage to such unchecked baggage incurred during, or as a result of such service, irrespective of the negligence of carrier's employees.
    2. Carrier is not liable for any damage directly and solely arising out of its compliance with any laws, government regulations, orders, or requirements or from failure of passenger to comply with same, or out of any cause beyond carrier's control.
    3. In no case shall the carrier's liability exceed the actual loss suffered by the passenger. All claims are subject to proof of amount of loss.
    4. The carrier may refuse to accept any articles that do not constitute baggage as such term is defined herein, but if delivered to and received by carrier, such articles shall be deemed to be within the baggage valuation and limit of liability, and shall be subject to the published rates and charges of carrier.
      1. liability of carrier for damages shall be limited to occurrences on its own line, except in the case of checked baggage as to which the passenger also has a right of action against the first or last carrier.
      2. a carrier issuing a ticket or checking baggage for carriage over the lines of another carrier does so only as agent.
      3. carrier shall not be liable for death or injury of a passenger not occurring on its own line.
    6. Carrier shall not be liable in any event for any consequential or special damage arising from carriage subject to this tariff, whether or not carrier had knowledge that such damages might be incurred.
    7. Any exclusion or limitation of liability of carrier under this tariff or the ticket shall apply to agents, servants, or representatives of the carrier acting within the scope of their employment and also to any person whose aircraft is used by the carrier and its agents, servants or representatives acting within the scope of their employment.
    8. The owner of a pet shall be responsible for compliance with all governmental regulations and restrictions, including furnishing valid health and rabies vaccination certificates when required. Carrier will not be liable for less or expense due to the passenger's failure to comply with this provision, and carrier will not be responsible if any pet is refused passage into or through any country, state or territory.
  4. Time Limitations on Claims and Actions
    1. No action shall lie in the case of damage to baggage unless the person entitled to delivery complains to the carrier forthwith after the discovery of the damage, and, at the latest, within seven (7) days from the date of receipt; and in the case of delay, or loss, complaints must be made at the latest within 21 days from the date on which the baggage has been placed at his disposal (in the case of delay), or should have been placed at his disposal (in the case of loss). Every complaint must be made in writing and dispatched within the time aforesaid. Where carriage is not "international carriage" as defined in the convention, failure to give notice shall not be a bar to suit where claimant proves that:
      1. it was not reasonably possible for him to give such notice, or
      2. that notice was not given due to fraud on the part of carrier, or
      3. the management of carrier had knowledge of damage to passenger's baggage.
    2. Any right to damages against carrier shall be extinguished unless an action is brought within two year, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
  5. Overriding Law
    Insofar as any provision contained or referred to in the ticket or in this tariff may be contrary to a law, government regulation, order or requirement which severally cannot be waived by agreement of the parties, such provisions shall remain applicable and be considered as part of the contract of carriage to the extent only that such provision shall not affect any other part.
  6. Modification and Waiver
    No agent, servant, or representative of carrier has authority to alter, modify, or waive any provisions of the contract of carriage of this tariff.
  7. Gratuitous Transportation
    1. Gratuitous transportation by carrier of persons as hereinafter described shall be governed by all the provisions of this rule, except subparagraph (2) below and by all other applicable rules of the tariff.
      1. Transportation of persons injured in aircraft accidents on the lines of carrier and physicians and nurses attending such persons.
      2. Transportation of persons, the object of which is that the providing relief in general epidemics, pestilence or other calamitous visitation.
      3. Transportation of persons, which is required by and authorized pursuant to part 223 of the economic regulations of the Department of Transportation of the United States of America.
      4. Transportation of persons which is subject to the convention.
      5. Transportation of offices, employees and servants of carrier traveling in the course of their employments and in the furtherance of carrier's business.
    2. Except in respect of gratuitous transportation of persons described in paragraph G.1 above, carrier in furnishing gratuitous transportation shall not be liable (the provisions of rule 55(B) and (C) to the contrary notwithstanding) under any circumstances whether of its own negligence or that of its offices, agents, representatives or employees, or otherwise, and the person using such free transportation on behalf of himself, his heirs, legal representative, defendants and other parties in interest, and their representative, assignees, releases and agrees to indemnify carrier, its officers, agents, representative and employees from all liability (including cost and expenses), for any and all delay, and for failure to complete passage, and from any and all loss or damage to the property of such person. Note

      : Rules stating any limitation on, or conditions relating to the liability of the carriers for personal injury or death are not permitted to be included in the tariffs filed pursuant to the law of the United States, except to the extent provided in rule 55(B)(1). Insofar as this rule states any such limitation or condition it is included herein; except to the extent provided in rule 55(B)(1), as than the United States and not as part of this tariff filed with the Department of Transportation of the United States.

    3. When carrier at no charge to a passenger retrieves the passenger’s baggage from the airport following the passenger’s flight on a separate ticket with a different carrier, and transports that baggage to the passenger’s ultimate destination because the passenger failed to claim the baggage from the first carrier and recheck the baggage on Hawaiian, such transportation by Hawaiian shall be considered gratuitous transportation. When Hawaiian furnishes gratuitous transportation of baggage that is not subject to the Montreal Convention, the liability limits of the Montreal Convention do not apply and liability shall instead be governed by the Release, Waiver, Indemnification and Hold Harmless Agreement (“Release”) signed prior to the provision of such transportation.