Carriage by Air Act 1935

Overview

The Carriage by Air Act 1935 was enacted to give effect to the Convention for the unification of certain rules relating to international carriage by air, signed at Warsaw on October 12, 1929. This Act was assented to on April 12, 1935, by the King's Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia. The primary objective of the Act is to unify rules and provide a legal framework for international air carriage, ensuring consistent standards and liability provisions across participating countries. The Act allows the Governor-General to declare the effective date of the Convention in Australia and to specify the territories and High Contracting Parties bound by the Convention. Additionally, the Act enables the application of the Convention's provisions to non-international air carriage through regulations and provides for the conversion of sums mentioned in the Convention into Australian currency. The Act also outlines provisions for actions against High Contracting Parties and the enforcement of claims, ensuring that those who undertake international air carriage are subject to the jurisdiction of Australian courts under specified conditions.

Scope and Application

The Carriage by Air Act 1935 applies to the carriage of persons, luggage, and goods by aircraft for reward, as well as gratuitous carriage by aircraft performed by an air transport undertaking. The Act encompasses all international carriage, as defined by the Convention for the unification of certain rules relating to international carriage by air, which is incorporated in the First Schedule of the Act. This includes carriage where the place of departure and destination are situated within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party if there is an agreed stopping place in another territory, provided the latter is not a party to the Convention. The Act also applies to carriage performed by the State or by legally constituted public bodies, provided it meets the conditions set out in the Convention. Notably, the Act does not apply to carriage performed under the terms of any international postal Convention. Geographically, the Act applies within the Commonwealth of Australia and any territories specified by the Governor-General in a notice published in the Gazette. The Governor-General has the authority to declare the date on which the Convention will come into force in respect of the Commonwealth or any Territory, as well as to declare which territories are bound by the Convention and the extent to which any High Contracting Party has availed themselves of the provisions of the Additional Protocol. The Act also provides for the application of its provisions to carriage by air which is not international, subject to regulations made by the Governor-General. The Act may be extended or restricted through subordinate instruments, such as regulations made under section 5 and 6 of the Act, which allow for the adaptation of the Convention's provisions to non-international carriage and the prescription of matters necessary for the Act's implementation. The Act does not specify any exclusions, exemptions, or thresholds, and its application is broad, covering all international carriage by air as defined, as well as carriage by air transport undertakings.

Key Provisions

• The Carriage by Air Act 1935 (Act No. 18 of 1935) serves to implement a Convention for the unification of certain rules relating to international carriage by air, as detailed in the First Schedule of the Act. Section 3(1) allows the Governor-General to declare, through a notice in the Gazette, the date on which the Convention will come into force in respect of the Commonwealth or any Territory, thereby making the Convention's provisions legally binding in Australia. Section 3(2) stipulates that upon such declaration, the Convention's provisions will apply to any international carriage by air, irrespective of the aircraft's nationality. The Act also mandates that the Governor-General may declare, via Gazette notice, the High Contracting Parties to the Convention, their respective territories, and the extent to which they have availed themselves of the Additional Protocol to the Convention (section 3(3)). Furthermore, section 4(1) establishes that High Contracting Parties not availing themselves of the Additional Protocol are deemed to have submitted to the jurisdiction of Australian courts for claims arising from international carriage by air, with the proviso that execution against their property is not authorized.
• The Act imposes several obligations on parties involved in international carriage by air. Under section 3, carriers must deliver passenger tickets and luggage tickets as specified in Articles 3 and 4 of the Convention, which must include particulars such as the place and date of issue, the place of departure and destination, and statements regarding the rules of liability. The carrier is also required to accept an air consignment note for goods, as outlined in Article 5 of the Convention. Additionally, section 6 empowers the Governor-General to make regulations necessary for the implementation of the Act and the Convention, ensuring comprehensive governance of air carriage activities.
• Breaches of the Act or the Convention may result in civil or criminal consequences. For instance, Article 25 of the Convention stipulates that carriers cannot avail themselves of provisions excluding or limiting liability if damage is caused by their wilful misconduct or equivalent default. Similarly, failure to comply with the complaint procedures outlined in Article 26 may result in the forfeiture of the right to claim damages, except in cases of fraud by the carrier. The Act also includes provisions for the limitation of actions, with a two-year period from the date of arrival at the destination or the date the aircraft ought to have arrived (Article 29). Non-compliance with these provisions may result in the extinguishment of the right to damages. The maximum penalties for breaches are not explicitly stated in the Act but would be determined by the applicable law of the Court seized of the case.

Legal classification tags

Area of Law

International Law

Commercial Law

Instrument

Act

Concepts

Commencement Provisions

Liability of Carrier

Reporting & Disclosure Obligations

Transitional Provisions

Offence Provisions

Regulatory Standards