Common use of Situational Application: The Example of Delay Clause in Contracts

Situational Application: The Example of Delay. During diplomatic conferences, it is possible that reaching a compromise produces a text that creates flexibility for interpretation by Courts. This flex- ibility is notably required when it is deemed that a case-by-case analysis by Courts is more practical than a fixed rule to pursue the goal of the Conven- tion. The concept of ‘delay’ used under Article 19 of the Conventions98 falls into this category. In 1929, negotiators did not spend much time discussing Article 19. If the principle of liability in case of delay of passengers did not create difficulties, the question emerged as to when a delay would occur.99 The delegations had noticed that some airlines contractually indicated their schedule, with the consequence that it would be clear when a delay occurred; while others did not or merely indicated that their schedules were not guaranteed.100 In a scenario where no schedule was mentioned, it was admitted that the carrier had to fulfil his duty within a reasonable timeframe. Acknowledging that no formula could always determine when a delay occurred, the Rapporteur confirmed that this question would be left to the discretion of the Courts: Lorsqu’aucun délai n’a été stipulé, il faut qu’il remplisse ses obligations dans un délai raisonnable. Qu’entend-on par là? Aucune formule ne peut le déterminer, il s’agit d’une question d’appréciation de fait à solutionner par xx xxxx; […].101 98 The 1929 text provides that: ‘Le transporteur est responsable du dommage résultant d’un retard dans le transport aérien de voyageurs, bagages ou marchandises’, translated in English as follows: ‘The carrier is liable for damage occasioned by delay in the carriage by air of passengers, luggage or goods’. The 1999 version reads: ‘The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay 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’.