Carriage by Air Amendment Act, 2006

This Act amends the Carriage by Air Act, 1946, and is published after presidential assent.

This section amends the Carriage by Air Act, 1946 by adding two definitions.

Section 2 of the principal Act is repealed.

The Minister may publish Gazette notices declaring the States Parties to the Convention and the territories they cover. The court may also make just and equitable orders in passenger-death liability cases.

Section 4 of the principal Act is repealed.

The President may ratify, adhere to, or accede to Convention amendments or additions, and may proclaim them to have force of law in the Republic.

Carriers must follow a prescribed claims procedure before court action is started for passenger-death claims; regulations may also make non-compliance an offence with a fine or imprisonment.

This section substitutes the Schedule to this Act for the Schedule to the principal Act.

This section names the Act and says it starts on a date fixed by the President by proclamation in the Gazette.

This Convention applies to international carriage of persons, baggage, or cargo by aircraft for reward, and also to gratuitous carriage by aircraft when performed by an air transport undertaking.

This section defines when carriage counts as international carriage for this Convention.

For this Convention, carriage by several successive carriers counts as one undivided carriage if the parties treated it as a single operation.

This Convention also applies to carriage covered by Chapter V, subject to the terms in that chapter.

This provision says the Convention applies to carriage performed by the State or legally constituted public bodies if Article 1’s conditions are met.

When carrying postal items, the carrier is liable only to the relevant postal administration.

This provision says the Convention does not apply to carriage of postal items, except as paragraph 2 of the Article provides.

A carriage document for passengers must be delivered and include the departure and destination places.

A carrier may use another way to preserve the required information instead of delivering the document, but if it does, it must offer the passenger a written statement of that information.

The carrier must give the passenger a baggage identification tag for each piece of checked baggage.

A passenger must be given written notice that, when the Convention applies, it governs and may limit carrier liability for death or injury, baggage loss or damage, and delay.

Non-compliance with the earlier paragraphs does not affect the existence or validity of the contract of carriage.

For cargo carriage, an air waybill must be delivered.

The carrier may use another record-preserving method instead of delivering an air waybill, and must give the consignor a cargo receipt if requested.

The consignor must make out the air waybill in three original parts.

This section requires the first part to be marked “for the carrier” and signed by the consignor, the second part to be marked “for the consignee” and signed by both consignor and carrier, and the third part to be signed by the carrier and then handed to the consignor after cargo acceptance.

The carrier’s and consignor’s signatures may be printed or stamped.

If the consignor asks the carrier to fill out the air waybill, the carrier is treated as doing so on the consignor’s behalf unless the contrary is proven. When there is more than one package, the carrier of cargo may require separate air waybills, and the consignor may require separate cargo receipts if the alternative Article 4(2) means are used.

The consignor must ensure cargo details and statements are correct when they are put in the air waybill, cargo receipt, or related record.

The consignor must indemnify the carrier for damages caused by incorrect, irregular, or incomplete particulars or statements supplied by the consignor or on its behalf.

The carrier must indemnify the consignor for damage caused by incorrect, incomplete, or irregular particulars or statements in the cargo receipt or related record, subject to paragraphs 1 and 2.

An air waybill or cargo receipt serves as prima facie evidence of the contract, acceptance of the cargo, and the stated carriage conditions.

Statements in an air waybill or cargo receipt about cargo weight, dimensions, packing, and number of packages count as prima facie evidence of the stated facts.

The consignor may direct what happens to the cargo, but must not use that right to prejudice the carrier or other consignors and must pay any expenses caused by using the right.

If the carrier cannot carry out the consignor’s instructions, the carrier must inform the consignor at once.

If the carrier follows the consignor’s instructions for cargo disposition without asking for the relevant air waybill part or cargo receipt, the carrier can be liable for resulting damage.

The consignor’s right of disposition ends when the consignee’s right begins, but it comes back if the consignee refuses the cargo or cannot be reached.

The consignee may require the carrier to deliver the cargo at its destination, once the cargo arrives, if charges are paid and carriage conditions are met, unless the consignor has exercised a right under Article 12.

The carrier must notify the consignee as soon as the cargo arrives, unless the parties agreed otherwise.

The consignee may enforce the carrier’s contract-of-carriage rights if the carrier admits the cargo is lost or the cargo has not arrived within seven days after it should have arrived.

Articles 12 to 14 do not change the relationship between the consignor and consignee, or the rights of third parties derived from either of them.

Articles 12, 13 and 14 may be varied only by an express provision in the air waybill or cargo receipt.

The consignor must provide the information and documents needed for customs, police, and other public authority formalities before cargo is delivered to the consignee.

The carrier does not have to check whether the information or documents are correct or sufficient.

The carrier is liable for damage from a passenger’s death or bodily injury if the accident happened on the aircraft or while boarding or disembarking.

The carrier is liable for certain baggage damage, with conditions for checked baggage and a fault-based rule for unchecked baggage.

A passenger may enforce contract-of-carriage rights against the carrier if the carrier admits the baggage was lost or the baggage has not arrived within 21 days after it should have arrived.

Unless otherwise specified, “baggage” includes both checked baggage and unchecked baggage.

The carrier is liable for cargo damage, loss, or destruction only if the event causing it happened during air carriage.

The carrier is not liable for cargo destruction, loss, or damage to the extent it proves certain listed causes.

This provision says air carriage includes the period when the cargo is in the carrier’s charge.

The carrier is liable for delay-related damage in air carriage, but can avoid or reduce liability if it proves specified exonerating facts.

A carrier cannot exclude or limit its liability for damages under paragraph 1 of Article 17 when the damages are not more than 100,000 Special Drawing Rights per passenger.

The carrier is not liable for damages above 100,000 Special Drawing Rights per passenger if it proves the damage was not caused by its own fault or by a third party's fault.

If delay causes damage in the carriage of persons, the carrier’s liability for each passenger is capped at 4,150 Special Drawing Rights.

A carrier’s liability for baggage destruction, loss, damage, or delay is capped at 1,000 Special Drawing Rights per passenger, unless the passenger makes a special declaration and pays any required supplementary sum.

Carrier liability for cargo destruction, loss, damage, or delay is capped at 17 Special Drawing Rights per kilogramme, subject to a declared-value exception.

For cargo damage, loss, destruction, or delay affecting part of a shipment, liability is calculated using the total weight of the package(s) concerned; if other packages’ value is also affected, their total weight is included too.

The earlier liability rules do not apply if the damage was caused by the carrier, its servants, or agents acting intentionally or recklessly with knowledge that damage would probably result.

The court may award the plaintiff some or all litigation costs and expenses, including interest, despite the limits in Article 21 and this Article, unless the damages award is no more than the carrier’s written offer made within the stated time.

The provision says Special Drawing Right sums in the Convention are to be treated as SDRs defined by the IMF, and sets how they are converted into national currencies in court cases.

Certain non-IMF States may declare specified carrier liability limits and may convert those amounts into national currency.

States Parties must tell the depositary how they calculated or converted the amounts, when they deposit ratification-related instruments and whenever the calculation or conversion changes.

The Depositary must review the liability limits in Articles 21 to 23 at five-year intervals, with the first review timed by entry into force or signature timing.

If a review finds inflation has risen above 10%, the Depositary must notify States Parties of a revision of liability limits.

The text lets carriers set higher or no liability limits, voids clauses that reduce carrier liability, allows certain contract refusals and conditions, requires advance payments in some passenger injury/death accidents if national law requires it, and sets a trigger plus five-year review timing.

A servant or agent of the carrier may use the carrier’s liability conditions and limits if sued for Convention-related damage and if they prove they were acting within the scope of employment.

The total amount recoverable from the carrier, its servants, and agents in this case must stay within the stated limits.

For cargo carriage, paragraphs 1 and 2 do not apply if the damage is proved to have been caused by a servant or agent acting intentionally or recklessly with knowledge that damage would probably result.

If the person entitled to delivery of checked baggage or cargo receives it without complaint, that receipt is prima facie evidence that it was delivered in good condition and as required by the carriage document or related record.

If baggage or cargo is damaged or delayed, the person entitled to delivery must complain to the carrier within the stated deadline.

A complaint must be made in writing and given or sent within the stated time.

If no complaint is made in time, no action may be brought against the carrier, except in cases of fraud. If the liable person has died, a damages action may be brought against those representing the estate.

A damages claim must be filed in a permitted territory and venue chosen by the plaintiff.

A claim for damage from a passenger’s death or injury may be brought in certain courts or in a State Party where the passenger had their principal and permanent residence, if the carrier meets the stated service and business-location conditions.

This section defines “commercial agreement” and “principal and permanent residence” for paragraph 2.

Questions of procedure are governed by the law of the court seised of the case.

The cargo carriage parties may agree in writing to settle carrier-liability disputes by arbitration.

The claimant may choose one of the Article 33 jurisdictions as the place for the arbitration proceedings.

The arbitrator or arbitration tribunal must apply the provisions of this Convention.

The referenced provisions are treated as part of every arbitration clause or agreement, and inconsistent terms are void. A damages claim is extinguished if action is not brought within two years from the stated arrival-related dates.

The method for calculating the period is determined by the law of the court seized of the case.

A passenger or compensation claimant may take action only against the carrier that performed the carriage where the accident or delay occurred, unless the first carrier has expressly assumed liability for the whole journey.

For baggage or cargo, the passenger, consignor, or entitled consignee may sue the relevant carrier(s), including the first carrier, last carrier, or the carrier that carried the goods when the loss, damage, or delay happened.

The section says the actual carrier’s acts and omissions, including those of its servants and agents acting within their employment, are treated as the contracting carrier’s acts and omissions for the carriage performed by the actual carrier.

The provision allocates liability and rights between the contracting carrier, the actual carrier, and their servants or agents, and requires carriers to have adequate insurance.

The Convention is open for signature in Montreal on 28 May 1999 for participating States, and after that date for all States until it enters into force.

The Convention may be signed by Regional Economic Integration Organisations, and certain State Party references also apply to them, with some listed exceptions.

The Convention must be ratified by States and Regional Economic Integration Organisations that have signed it.

A State or regional economic integration organisation that does not sign the convention may later accept, approve, or accede to it.

Instruments of ratification, acceptance, approval, or accession must be deposited with the International Civil Aviation Organization, which is designated as the Depositary.

The Convention enters into force on the 60th day after the 30th qualifying instrument is deposited with the Depositary.

For other States and regional economic integration organisations, the Convention takes effect 60 days after deposit of the instrument of ratification, acceptance, approval, or accession.

The Depositary must promptly notify all signatories and States Parties of specified treaty events and dates.

Any State Party may denounce the Convention by sending written notification to the Depositary.

Denunciation takes effect 180 days after notification is received by the Depositary.

A qualifying State may declare that the Convention applies to all of its territorial units, or only some of them, and may later change that declaration.

A declaration must be notified to the Depositary and must expressly state which territorial units the Convention applies to.

A State Party that has made the declaration may have certain treaty terms read as referring to its territorial unit, and a State Party may notify the Depositary to exclude specified carriage from the Convention; reservations are otherwise not allowed.