| C2004C02758 | CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958
- Reprinted as at 31 May 1991 (#DATE 31:05:1991)
*1*The Civil Aviation (Damage by Aircraft) Act 1958 as shown in this reprint comprises Act No. 81, 1958 amended as indicated in the tables below. Table of Acts Act Number Date Date of Application, and year of Assent commencement saving or transitional provisions Civil Aviation (Damage by Aircraft) Act 1958 81, 1958 10 Oct 1958 Parts I and IV: Royal Assent Part II: 2 Mar 1959 (see Gazette 1959, p. 825) Part III: 1 July 1959 (see Gazette 1959, p. 1831) Statute Law Revision Act 1973 216, 1973 19 Dec 1973 31 Dec 1973 Ss. 9 (1) and 10 Jurisdiction of Courts (Miscellaneous Amendments) Act 1979 19, 1979 28 Mar 1979 Part II-XVII (ss. 3-123): S. 124 15 May 1979 (see Gazette 1979, No. S86) Remainder: Royal Assent Statute Law (Miscellaneous Provisions) Act (No. 1) 1983 39, 1983 20 June 1983 S. 3: 18 July 1983 (a) S. 7 (1) (a) The Civil Aviation (Damage by Aircraft) Act 1958 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1983, subsection 2 (1) of which provides as follows: '(1) Subject to this section, this Act shall come into operation on the twenty-eighth day after the day on which it receives the Royal Assent.' Table of Amendments ad.=added or inserted am.=amended rep.=repealed rs.=repealed and substituted Provision affected How affected S. 3 rep. No. 216, 1973 Ss. 4, 5 am. No. 216, 1973 S. 9 am. No. 216, 1973; No. 39, 1983 S. 15 am. No. 216, 1973; No. 19, 1979 CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - TABLE OF PROVISIONS
TABLE
TABLE OF PROVISIONS
Section
PART I-PRELIMINARY
1. Short title
2. Commencement
4. Interpretation
5. Extension to Territories
6. Act to bind Crown
7. Approval of ratification of Rome Convention
PART II-DAMAGE TO WHICH THE ROME CONVENTION APPLIES
8. Convention to have the force of law
9. Actions under Convention
10. Consolidation of actions
11. Liability in respect of death
12. Proceeds of insurance policies in relation to death or injury
13. Actions against contracting States as operators of aircraft
14. Evidence of certain matters
15. Regulations for giving effect to Convention
PART III-OTHER DAMAGE TO WHICH THIS ACT APPLIES
16. Application of Part
17. Application of provisions of Convention
18. Application of certain provisions of Part II
19. Minister may require operator to be insured
PART IV-REGULATIONS
20. Regulations
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - LONG TITLE
SECT
An Act to approve Ratification by Australia of the Rome Convention on Damage
caused by Foreign Aircraft to third Parties on the Surface, to give effect to
that Convention, and to make provision with respect to the Liabilities of
certain Operators of Aircraft in respect of damage on the Surface to which
that
Convention does not apply
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - PART I
PART I-PRELIMINARY
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 1
Short title
SECT
1. This Act may be cited as the Civil Aviation (Damage by Aircraft) Act
1958.*1*
SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 2
Commencement
SECT
2.*1* (1) Parts I and IV of this Act shall come into operation on the day on
which this Act receives the Royal Assent.
(2) Part II of this Act shall come into operation on a date to be fixed by
Proclamation, not being earlier than the ninetieth day after the deposit on
behalf of Australia of an instrument of ratification of the Convention.
(3) Part III of this Act shall come into operation on a date to be fixed by
Proclamation.
SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 4
Interpretation
SECT
4. In this Act, unless the contrary intention appears:
'Australia' includes the Territories;
'contracting State' means a country, other than Australia, which is bound by
the provisions of the Convention;
'the Convention' means the Convention on Damage caused by Foreign Aircraft
to third Parties on the Surface opened for signature at Rome on the seventh
day of October, One thousand nine hundred and fifty-two, being the Convention
a copy of the authentic text of which in the English language is set out in
the Schedule to this Act.
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 5
Extension to Territories
SECT
5. This Act extends to every Territory.
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 6
Act to bind Crown
SECT
6. This Act binds the Crown in right of the Commonwealth or of any State.
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 7
Approval of ratification of Rome Convention
SECT
7. Approval is given to ratification by Australia of the Convention.
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - PART II
PART II-DAMAGE TO WHICH THE ROME CONVENTION APPLIES
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 8
Convention to have the force of law
SECT
8.(1) The provisions of the Convention have the force of law in Australia.
(2) A reference in this Part to the Convention shall, unless the contrary
intention appears, be read as a reference to the provisions of the Convention
as having the force of law by virtue of this section.
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 9
Actions under Convention
SECT
9.(1) Where damage in relation to which the Convention applies occurs in
Australia, an action under the Convention in respect of the damage does not
lie in Australia except in a Court having jurisdiction in relation to the
place where the damage occurs.
(2) Where an action under the Convention is pending in the Supreme Court of
a State or Territory, an action under the Convention arising out of the same
incident (other than an action instituted before the institution of the action
in the Supreme Court) does not lie in any other Court of that State or
Territory.
(3) Where actions under the Convention arising out of a single incident are
pending in two or more Courts of a State or Territory (whether or not one of
those Courts is the Supreme Court), the Supreme Court of that State or
Territory may, upon the application of the defendant in any such action (or,
if there is more than one defendant, upon the application of any defendant),
order any such action to be removed into the Supreme Court, and any such order
may be made on such terms and conditions as the Supreme Court thinks fit.
(4) For the purposes of section thirty-eight of the Judiciary Act 1903-1955,
an action under the Convention shall be deemed not to be a matter arising
directly under a treaty.
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 10
Consolidation of actions
SECT
10.(1) A Court in which two or more actions under the Convention are
pending, being actions arising out of a single incident, may make such orders
as it thinks fit, upon such terms and conditions as it thinks fit, for the
purpose of ensuring, so far as the interests of justice and convenience
permit, that all of those actions are consolidated for disposal in a single
proceeding.
(2) The last preceding subsection does not prejudice any power of a Court
under any other law with respect to any actions to which that subsection is
applicable.
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 11
Liability in respect of death
SECT
11.(1) The provisions of this section apply in relation to the liability
imposed by the Convention on a person in respect of the death of another
person.
(2) The action to enforce the liability may be brought by the personal
representative of the deceased person or by one of the persons who suffered
damage by reason of the death, but only one action shall be brought in
Australia in respect of the death of any one person and the action, by
whomsoever brought, shall be for the benefit of all persons for whose benefit
the liability is enforceable who are resident in Australia or, not being
resident in Australia, express the desire to take the benefit of the action.
(3) The damages recoverable in the action include loss of earnings or
profits up to the date of death and the reasonable expenses of the funeral of
the deceased person and medical and hospital expenses reasonably incurred in
relation to the injury that resulted in the death of the deceased person.
(4) In awarding damages, the Court is not limited to the financial loss
resulting from the death of the deceased person.
(5) Subject to the next succeeding subsection, the amount recovered in the
action, after deducting any costs not recovered from the defendant, shall be
divided amongst the persons entitled in such proportions as the Court (or,
where the action is tried with a jury, the jury) directs.
(6) The Court may, at any stage of the proceedings, make any such order as
appears to the Court to be just and equitable in view of the provisions of the
Convention limiting the liability of the defendant.
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 12
Proceeds of insurance policies in relation to death or injury
SECT
12. In assessing damages in respect of liability under the Convention in
relation to the death of, or personal injury to, a person, there shall not be
taken into account:
(a) a sum paid or payable on the death of, or personal injury to, that
person under a contract of insurance;
(b) a sum paid or payable out of a superannuation, provident or like
fund,
or by way of benefit from a friendly society, benefit society or trade union;
or
(c) in the case of death, a premium that would have become payable under
a
contract of insurance in respect of the life of that person if he had lived
after the time at which he died.
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 13
Actions against contracting States as operators of aircraft
SECT
13.(1) A contracting State shall, for the purposes of an action under the
Convention brought in a Court in Australia to enforce a claim in respect of
damage for which, under the Convention, the contracting State is liable as
operator of the aircraft concerned or as being otherwise connected with that
aircraft, be deemed to have submitted to the jurisdiction of that Court.
(2) Nothing in this section authorizes the issue of execution against the
property of a contracting State.
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 14
Evidence of certain matters
SECT
14.(1) The Minister may, by notice published in the Gazette, from time to
time declare:
(a) that a country specified in the notice is a country which has
ratified
or adhered to the Convention and the date on which the ratification or
adherence became effective;
(b) that a country has, at the time of deposit of its instrument of
ratification of or adherence to the Convention, declared that its acceptance
of the Convention does not apply to a territory or territories specified in
the notice;
(c) that a country specified in the notice has extended the application
of
the Convention to a territory or territories specified in the notice, and the
date as from which the extension took effect;
(d) that a country specified in the notice has made a declaration under
paragraph 3 of Article 37 of the Convention in relation to a territory
specified in the notice; or
(e) that a country specified in the notice has denounced the Convention
in
respect of all of the territories for the foreign relations of which that
country is responsible, or in respect of any such territory specified in the
notice, and the date upon which the denunciation became effective.
(2) A notice under this section is evidence of the matters declared.
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 15
Regulations for giving effect to Convention
SECT
15.(1) The regulations may prescribe all matters that are necessary or
convenient to be prescribed for carrying out or giving effect to the
Convention and, in particular, matters in relation to:
(a) the manner in which requirements may be made under Chapter III of the
Convention and the authority that is to be the appropriate authority in
Australia for any purpose in relation to that Chapter; and
(b) the manner in which evidence may be given, in proceedings under the
Convention, of a certificate of airworthiness of an aircraft or the identity
of the registered owner of an aircraft.
(2) The regulations for carrying out or giving effect to Article 20 of the
Convention may include regulations:
(a) prescribing the Courts in Australia by which judgments referred to in
that Article may be enforced and the formalities that are to be complied with
before such a judgment may be so enforced;
(b) in matters arising under that Article or the regulations:
(ii) investing any Court of a State with federal jurisdiction; or
(iii) conferring jurisdiction on a court of a Territory;
(c) providing that an application to a Court in Australia for execution
of
a judgment referred to in that Article shall be made by way of, or be preceded
by, an application for registration of the judgment in that Court;
(d) providing that a Court to which such an application for registration
of
a judgment is made may refuse registration of the judgment, or set aside
registration, upon any ground upon which, under that Article, execution of the
judgment may be refused or where, for any other reason, the judgment is found
not to be enforceable under that Article; and
(e) prohibiting, restricting or regulating actions or proceedings in
Courts
in Australia upon foreign judgments in respect of liability under the
Convention, for the purpose of preventing the use of such actions or
proceedings as a means of evading the limitations contained in Article 20 of
the Convention on rights of execution of those judgments.
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - PART III
PART III-OTHER DAMAGE TO WHICH THIS ACT APPLIES
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 16
Application of Part
SECT
16.(1) This Part applies to an aircraft registered in Australia which, while
being used for the purposes of, or moved in the course of, trade and commerce
between Australia and another country, is in flight in Australia:
(a) in the course of a journey of the aircraft between a place in
Australia
and a place outside Australia (either with or without intermediate stopping
places in Australia); or
(b) in the course of a journey of the aircraft between two places in
Australia, if passengers or goods are being carried in the aircraft in part
performance of a contract for their carriage by a single carrier between a
place in Australia and a place outside Australia.
(2) This Part also applies in relation to an aircraft, not being an aircraft
registered in Australia or in a Contracting State, which is being used for the
purposes of, or moved in the course of, trade and commerce between Australia
and another country and is in flight in Australia.
(3) For the purposes of this section, an aircraft shall be deemed to be in
flight from the moment when power is applied for the purpose of take-off until
the moment when the landing run ends.
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 17
Application of provisions of Convention
SECT
17.(1) Subject to this section, the provisions of the Convention (other than
Chapter III, Articles 20, 23, 27, 28 and 29 and Chapter VI) apply, by virtue
of this section, in relation to an aircraft to which this Part applies.
(2) For the purposes of this section, references to the Convention in the
provisions of the Convention that apply by virtue of this section shall be
read as references to the provisions of the Convention that apply by virtue of
this section, as so applying.
(3) The provisions of Chapter II, and of Articles 19 and 21, of the
Convention do not apply to an aircraft referred to in subsection (2) of the
last preceding section, and, in the application of the provisions of the
Convention which do apply to such an aircraft, every reference to the limits
of liability provided by Chapter II of the Convention shall be deemed to be
omitted.
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 18
Application of certain provisions of Part II
SECT
18. The provisions of sections nine, ten, eleven and twelve of this Act
apply for the purposes of this Part in like manner as they apply for the
purposes of Part II, but, in the application of those provisions, any
reference to the Convention shall be read as a reference to the provisions of
the Convention that apply by virtue of this Part, as so applying.
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 19
Minister may require operator to be insured
SECT
19.(1) The Minister may, by notice in writing, prohibit a person from
operating an aircraft in circumstances in which the aircraft would be an
aircraft to which this Part applies unless there is in force a certificate in
writing issued by the Minister certifying that that person is insured to the
satisfaction of the Minister against liability under this Part to an extent
corresponding to the extent to which an operator may be required to be insured
under Chapter III of the Convention.
(2) A person to whom a notice under this section has been given shall not,
while the notice is in force, contravene the notice.
(3) For the purposes of this section and of any notice under this section, a
person shall be deemed to operate an aircraft if the circumstances are such
that that person would, if the aircraft were one to which the Convention
applies, be the operator of that aircraft for the purposes of the Convention.
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - PART IV
PART IV-REGULATIONS
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SECT 20
Regulations
SECT
20. The Governor-General may make regulations, not inconsistent with this
Act, prescribing all matters which by this Act are required or permitted to be
prescribed or which are necessary or convenient to be prescribed for carrying
out or giving effect to this Act.
CIVIL AVIATION (DAMAGE BY AIRCRAFT) ACT 1958 - SCHEDULE
SCH
THE SCHEDULE Section 4
CONVENTION ON DAMAGE CAUSED BY FOREIGN AIRCRAFT TO
THIRD PARTIES ON THE SURFACE
THE STATES SIGNATORY to this Convention
MOVED by a desire to ensure adequate compensation for persons who suffer
damage caused on the surface by foreign aircraft, while limiting in a
reasonable manner the extent of the liabilities incurred for such damage in
order not to hinder the development of international civil air transport, and
also
CONVINCED of the need for unifying to the greatest extent possible,
through
an international convention, the rules applying in the various countries of
the
world to the liabilities incurred for such damage,
HAVE APPOINTED to such effect the undersigned Plenipotentiaries who, duly
authorized, HAVE AGREED AS FOLLOWS:
CHAPTER I-PRINCIPLES OF LIABILITY
Article 1
1. Any person who suffers damage on the surface shall, upon proof only
that
the damage was caused by an aircraft in flight or by any person or thing
falling therefrom, be entitled to compensation as provided by this
Convention.
Nevertheless there shall be no right to compensation if the damage is not a
direct consequence of the incident giving rise thereto, or if the damage
results from the mere fact of passage of the aircraft through the airspace in
conformity with existing air traffic regulations.
2. For the purpose of this Convention, an aircraft is considered to be in
flight from the moment when power is applied for the purpose of actual
take-off
until the moment when the landing run ends. In the case of an aircraft
lighter
than air, the expression 'in flight' relates to the period from the moment
when it becomes detached from the surface until it becomes again attached
thereto.
Article 2
1. The liability for compensation contemplated by Article 1 of this
Convention shall attach to the operator of the aircraft.
2. (a) For the purposes of this Convention the term 'operator'shall mean
the
person who was making use of the aircraft at the time the damage was caused,
provided that if control of the navigation of the aircraft was retained by
the
person from whom the right to make use of the aircraft was derived, whether
directly or indirectly, that person shall be considered the operator.
(b) A person shall be considered to be making use of an aircraft when he
is
using it personally or when his servants or agents are using the aircraft in
the course of their employment, whether or not within the scope of their
authority.
3. The registered owner of the aircraft shall be presumed to be the
operator
and shall be liable as such unless, in the proceedings for the determination
of
his liability, he proves that some other person was the operator and, in so
far
as legal procedures permit, takes appropriate measures to make that other
person a party in the proceedings.
Article 3
If the person who was the operator at the time the damage was caused had
not
the exclusive right to use the aircraft for a period of more than fourteen
days, dating from the moment when the right to use commenced, the person from
whom such right was derived shall be liable jointly and severally with the
operator, each of them being bound under the provisions and within the limits
of liability of this Convention.
Article 4
If a person makes use of an aircraft without the consent of the person
entitled to its navigational control, the latter, unless he proves that he
has
exercised due care to prevent such use, shall be jointly and severally liable
with the unlawful user for damage giving a right to compensation under
Article
1, each of them being bound under the provisions and within the limits of
liability of this Convention.
Article 5
Any person who would otherwise be liable under the provisions of this
Convention shall not be liable if the damage is the direct consequence of
armed
conflict or civil disturbance, or if such person has been deprived of the use
of the aircraft by act of public authority.
Article 6
1. Any person who would otherwise be liable under the provisions of this
Convention shall not be liable for damage if he proves that the damage was
caused solely through the negligence or other wrongful act or omission of the
person who suffers the damage or of the latter's servants or agents. If the
person liable proves that the damage was contributed to by the negligence or
other wrongful act or omission of the person who suffers the damage, or of
his
servants or agents, the compensation shall be reduced to the extent to which
such negligence or wrongful act or omission contributed to the damage.
Nevertheless there shall be no such exoneration or reduction if, in the case
of
the negligence or other wrongful act or omission of a servant or agent, the
person who suffers the damage proves that his servant or agent was acting
outside the scope of his authority.
2. When an action is brought by one person to recover damages arising from
the death or injury of another person, the negligence or other wrongful act
or
omission of such other person, or of his servants or agents, shall also have
the effect provided in the preceding paragraph.
Article 7
When two or more aircraft have collided or interfered with each other in
flight and damage for which a right to compensation as contemplated in
Article
1 results, or when two or more aircraft have jointly caused such damage, each
of the aircraft concerned shall be considered to have caused the damage and
the
operator of each aircraft shall be liable, each of them being bound under the
provisions and within the limits of liability of this Convention.
Article 8
The persons referred to in paragraph 3 of Article 2 and in Articles 3 and
4
shall be entitled to all defences which are available to an operator under
the
provisions of this Convention.
Article 9
Neither the operator, the owner, any person liable under Article 3 or
Article 4, nor their respective servants or agents, shall be liable for
damage on the surface caused by an aircraft in flight or any person or thing
falling therefrom otherwise than as expressly provided in this Convention.
This
rule shall not apply to any such person who is guilty of a deliberate act or
omission done with intent to cause damage.
Article 10
Nothing in this Convention shall prejudice the question whether a person
liable for damage in accordance with its provisions has a right of recourse
against any other person.
CHAPTER II-EXTENT OF LIABILITY
Article 11
1. Subject to the provisions of Article 12, the liability for damage
giving
a right to compensation under Article 1, for each aircraft and incident, in
respect of all persons liable under this Convention, shall not exceed:
(a) 500,000 francs for aircraft weighing 1,000 kilogrammes or less;
(b) 500,000 francs plus 400 francs per kilogramme over 1,000 kilogrammes
for
aircraft weighing more than 1,000 but not exceeding 6,000 kilogrammes;
(c) 2,500,000 francs plus 250 francs per kilogramme over 6,000 kilogrammes
for aircraft weighing more than 6,000 but not exceeding 20,000
kilogrammes;
(d) 6,000,000 francs plus 150 francs per kilogramme over 20,000
kilogrammes
for aircraft weighing more than 20,000 but not exceeding 50,000
kilogrammes;
(e) 10,500,000 francs plus 100 francs per kilogramme over 50,000
kilogrammes
for aircraft weighing more than 50,000 kilogrammes.
2. The liability in respect of loss of life or personal injury shall not
exceed 500,000 francs per person killed or injured.
3. 'Weight' means the maximum weight of the aircraft authorized by the
certificate of airworthiness for take-off, excluding the effect of lifting
gas
when used.
4. The sums mentioned in francs in this Article refer to a currency unit
consisting of 65 1/2 milligrammes of gold of millesimal fineness 900.
These sums may be converted into national currencies in round figures.
Conversion of the sums into national currencies other than gold shall,
in case of judicial proceedings, be made according to the gold value of
such currencies at the date of the judgment, or, in cases covered by
Article 14, at the date of the allocation.
Article 12
1. If the person who suffers damage proves that it was caused by a
deliberate act or omission of the operator, his servants or agents, done with
intent to cause damage, the liability of the operator shall be unlimited;
provided that in the case of such act or omission of such servant or agent,
it
is also proved that he was acting in the course of his employment and within
the scope of his authority.
2. If a person wrongfully takes and makes use of an aircraft without the
consent of the person entitled to use it, his liability shall be unlimited.
Article 13
1. Whenever, under the provisions of Article 3 or Article 4, two or more
persons are liable for damage, or a registered owner who was not the operator
is made liable as such as provided in paragraph 3 of Article 2, the persons
who
suffer damage shall not be entitled to total compensation greater than the
highest indemnity which may be awarded under the provisions of this
Convention
against any one of the persons liable.
2. When the provisions of Article 7 are applicable, the person who suffers
the damage shall be entitled to be compensated up to the aggregate of the
limits applicable with respect to each of the aircraft involved, but no
operator shall be liable for a sum in excess of the limit applicable to his
aircraft unless his liability is unlimited under the terms of Article 12.
Article 14
If the total amount of the claims established exceeds the limit of
liability
applicable under the provisions of this Convention, the following rules shall
apply, taking into account the provisions of paragraph 2 of Article 11:
(a) If the claims are exclusively in respect of loss of life or personal
injury or exclusively in respect of damage to property, such claims shall be
reduced in proportion to their respective amounts.
(b) If the claims are both in respect of loss of life or personal injury
and
in respect of damage to property, one half of the total sum distributable
shall
be appropriated preferentially to meet claims in respect of loss of life and
personal injury and, if insufficient, shall be distributed proportionately
between the claims concerned. The remainder of the total sum distributable
shall be distributed proportionately among the claims in respect of damage to
property and the portion not already covered of the claims in respect of loss
of life and personal injury.
CHAPTER III-SECURITY FOR OPERATOR'S LIABILITY
Article 15
1. Any Contracting State may require that the operator of an aircraft
registered in another Contracting State shall be insured in respect of his
liability for damage sustained in its territory for which a right to
compensation exists under Article 1 by means of insurance up to the limits
applicable according to the provisions of Article 11.
2. (a) The insurance shall be accepted as satisfactory if it conforms to
the
provisions of this Convention and has been effected by an insurer authorized
to
effect such insurance under the laws of the State where the aircraft is
registered or of the State where the insurer has his residence or principal
place of business, and whose financial responsibility has been verified by
either of those States.
(b) If insurance has been required by any State under paragraph 1 of this
Article, and a final judgment in that State is not satisfied by payment in
the
currency of that State, any Contracting State may refuse to accept the
insurer
as financially responsible until such payment, if demanded, has been made.
3. Notwithstanding the last preceding paragraph the State overflown may
refuse to accept as satisfactory insurance effected by an insurer who is not
authorized for that purpose in a Contracting State.
4. Instead of insurance, any of the following securities shall be deemed
satisfactory if the security conforms to Article 17:
(a) a cash deposit in a depository maintained by the Contracting State
where
the aircraft is registered or with a bank authorized to act as a depository
by
that State;
(b) a guarantee given by a bank authorized to do so by the Contracting
State
where the aircraft is registered, and whose financial responsibility has been
verified by that State;
(c) a guarantee given by the Contracting State where the aircraft is
registered, if that State undertakes that it will not claim immunity from
suit
in respect of that guarantee.
5. Subject to paragraph 6 of this Article, the State overflown may also
require that the aircraft shall carry a certificate issued by the insurer
certifying that insurance has been effected in accordance with the provisions
of this Convention, and specifying the person or persons whose liability is
secured thereby, together with a certificate or endorsement issued by the
appropriate authority in the State where the aircraft is registered or in the
State where the insurer has his residence or principal place of business
certifying the financial responsibility of the insurer. If other security is
furnished in accordance with the provisions of paragraph 4 of this Article, a
certificate to that effect shall be issued by the appropriate authority in
the
State where the aircraft is registered.
6. The certificate referred to in paragraph 5 of this Article need not be
carried in the aircraft if a certified copy has been filed with the
appropriate
authority designated by the State overflown or, if the International Civil
Aviation Organization agrees, with that Organization, which shall furnish a
copy of the certificate to each contracting State.
7. (a) Where the State overflown has reasonable grounds for doubting the
financial responsibility of the insurer, or of the bank which issues a
guarantee under paragraph 4 of this Article, that State may request
additional
evidence of financial responsibility, and if any question arises as to the
adequacy of that evidence the dispute affecting the States concerned shall,
at
the request of one of those States, be submitted to an arbitral tribunal
which
shall be either the Council of the International Civil Aviation Organization
or
a person or body mutually agreed by the parties.
(b) Until this tribunal has given its decision the insurance or guarantee
shall be considered provisionally valid by the State overflown.
8. Any requirements imposed in accordance with this Article shall be
notified to the Secretary General of the International Civil Aviation
Organization who shall inform each Contracting State thereof.
9. For the purpose of this Article, the term 'insurer' includes a group of
insurers, and for the purpose of paragraph 5 of this Article, the phrase
'appropriate authority in a State' includes the appropriate authority in the
highest political subdivision thereof which regulates the conduct of business
by the insurer.
Article 16
1. The insurer or other person providing security required under Article
15
for the liability of the operator may, in addition to the defences available
to
the operator, and the defence of forgery, set up only the following defences
against claims based on the application of this Convention:
(a) that the damage occurred after the security ceased to be effective.
However, if the security expires during a flight, it shall be continued in
force until the next landing specified in the flight plan, but no longer than
twenty-four hours; and if the security ceases to be effective for any reason
other than the expiration of its term, or a change of operator, it shall be
continued until fifteen days after notification to the appropriate authority
of
the State which certifies the financial responsibility of the insurer or the
guarantor that the security has ceased to be effective, or until effective
withdrawal of the certificate of the insurer or the certificate of guarantee
if
such a certificate has been required under paragraph 5 of Article 15,
whichever
is the earlier;
(b) that the damage occurred outside the territorial limits provided for
by
the security, unless flight outside of such limits was caused by force
majeure,
assistance justified by the circumstances, or an error in piloting, operation
or navigation.
2. The State which has issued or endorsed a certificate pursuant to
paragraph 5 of Article 15 shall notify the termination or cessation,
otherwise
than by the expiration of its term, of the insurance or other security to the
interested contracting States as soon as possible.
3. Where a certificate of insurance or other security is required under
paragraph 5 of Article 15 and, the operator is changed during the period of
the
validity of the security, the security shall apply to the liability under
this
Convention of the new operator, unless he is already covered by other
insurance
or security or is an unlawful user, but not beyond fifteen days from the time
when the insurer or guarantor notifies the appropriate authority of the State
where the certificate was issued that the security has become ineffective or
until the effective withdrawal of the certificate of the insurer if such a
certificate has been required under paragraph 5 of Article 15, whichever is
the
shorter period.
4. The continuation in force of the security under the provisions of
paragraph 1 of this Article shall apply only for the benefit of the person
suffering damage.
5. Without prejudice to any right of direct action which he may have under
the law governing the contract of insurance or guarantee, the person
suffering
damage may bring a direct action against the insurer or guarantor only in the
following cases:
(a) where the security is continued in force under the provisions of
paragraph 1 (a) and (b) of this Article;
(b) the bankruptcy of the operator.
6. Excepting the defences specified in paragraph 1 of this Article, the
insurer or other person providing security may not, with respect to direct
actions brought by the person suffering damage based upon application of this
Convention, avail himself of any grounds of nullity or any right of
retroactive
cancellation.
7. The provisions of this Article shall not prejudice the question whether
the insurer or guarantor has a right of recourse against any other person.
Article 17
1. If security is furnished in accordance with paragraph 4 of Article 15,
it
shall be specifically and preferentially assigned to payment of claims under
the provisions of this Convention.
2. The security shall be deemed sufficient if, in the case of an operator
of
one aircraft, it is for an amount equal to the limit applicable according to
the provisions of Article 11, and in the case of an operator of several
aircraft, if it is for an amount not less than the aggregate of the limits of
liability applicable to the two aircraft subject to the highest limits.
3. As soon as notice of a claim has been given to the operator, the amount
of the security shall be increased up to a total sum equivalent to the
aggregate of:
(a) the amount of the security then required by paragraph 2 of this
Article,
and
(b) the amount of the claim not exceeding the applicable limit of
liability.
This increased security shall be maintained until every claim has been
disposed of.
Article 18
Any sums due to an operator from an insurer shall be exempt from seizure
and
execution by creditors of the operator until claims of third parties under
this
Convention have been satisfied.
CHAPTER IV-RULES OF PROCEDURE AND LIMITATION OF ACTIONS
Article 19
If a claimant has not brought an action to enforce his claim or if
notification of such claim has not been given to the operator within a period
of six months from the date of the incident which gave rise to the damage,
the
claimant shall only be entitled to compensation out of the amount for which
the
operator remains liable after all claims made within that period have been
met
in full.
Article 20
1. Actions under the provisions of this Convention may be brought only
before the courts of the Contracting State where the damage occurred.
Nevertheless, by agreement between any one or more claimants and any one or
more defendants, such claimants may take action before the courts of any
other
Contracting State, but no such proceedings shall have the effect of
prejudicing
in any way the rights of persons who bring actions in the State where the
damage occurred. The parties may also agree to submit disputes to arbitration
in any Contracting State.
2. Each Contracting State shall take all necessary measures to ensure that
the defendant and all other parties interested are notified of any
proceedings
concerning them and have a fair and adequate opportunity to defend their
interests.
3. Each Contracting State shall so far as possible ensure that all actions
arising from a single incident and brought in accordance with paragraph 1 of
this Article are consolidated for disposal in a single proceeding before the
same court.
4. Where any final judgment, including a judgment by default, is
pronounced
by a court competent in conformity with this Convention, on which execution
can
be issued according to the procedural law of that court, the judgment shall
be
enforceable upon compliance with the formalities prescribed by the laws of
the
Contracting State, or of any territory, State or province thereof, where
execution is applied for:
(a) in the Contracting State where the judgment debtor has his residence
or
principal place of business or,
(b) if the assets available in that State and in the State where the
judgment was pronounced are insufficient to satisfy the judgment, in any
other
Contracting State where the judgment debtor has assets.
5. Notwithstanding the provisions of paragraph 4 of this Article, the
court
to which application is made for execution may refuse to issue execution if
it
is proved that any of the following circumstances exist:
(a) the judgment was given by default and the defendant did not acquire
knowledge of the proceedings in sufficient time to act upon it;
(b) the defendant was not given a fair and adequate opportunity to defend
his interests;
(c) the judgment is in respect of a cause of action which had already, as
between the same parties, formed the subject of a judgment or an arbitral
award
which, under the law of the State where execution is sought, is recognized as
final and conclusive;
(d) the judgment has been obtained by fraud of any of the parties;
(e) the right to enforce the judgment is not vested in the person by whom
the application for execution is made.
6. The merits of the case may not be reopened in proceedings for execution
under paragraph 4 of this Article.
7. The court to which application for execution is made may also refuse to
issue execution if the judgment concerned is contrary to the public policy of
the State in which execution is requested.
8. If, in proceedings brought according to paragraph 4 of this Article,
execution of any judgment is refused on any of the grounds referred to in
sub-paragraphs (a), (b) or (d) of paragraph 5 or paragraph 7 of this Article,
the claimant shall be entitled to bring a new action before the courts of the
State where execution has been refused. The judgment rendered in such new
action may not result in the total compensation awarded exceeding the limits
applicable under the provisions of this Convention. In such new action the
previous judgment shall be a defence only to the extent to which it has been
satisfied. The previous judgment shall cease to be enforceable as soon as the
new action has been started.
The right to bring a new action under this paragraph shall,
notwithstanding
the provisions of Article 21, be subject to a period of limitation of one
year
from the date on which the claimant has received notification of the refusal
to
execute the judgment.
9. Notwithstanding the provisions of paragraph 4 of this Article, the
court
to which application for execution is made shall refuse execution of any
judgment rendered by a court of a State other than that in which the damage
occurred until all the judgments rendered in that State have been satisfied.
The court applied to shall also refuse to issue execution until final
judgment has been given on all actions filed in the State where the damage
occurred by those persons who have complied with the time limit referred to
in
Article 19, if the judgment debtor proves that the total amount of
compensation
which might be awarded by such judgments might exceed the applicable limit of
liability under the provisions of this Convention.
Similarly such court shall not grant execution when, in the case of
actions
brought in the State where the damage occurred by those persons who have
complied with the time limit referred to in Article 19, the aggregate of the
judgments exceeds the applicable limit of liability, until such judgments
have
been reduced in accordance with Article 14.
10. Where a judgment is rendered enforceable under this Article, payment
of
costs recoverable under the judgment shall also be enforceable. Nevertheless
the court applied to for execution may, on the application of the judgment
debtor, limit the amount of such costs to a sum equal to ten per centum of
the
amount for which the judgment is rendered enforceable. The limits of
liability
prescribed by this Convention shall be exclusive of costs.
11. Interest not exceeding four per centum per annum may be allowed on the
judgment debt from the date of the judgment in respect of which execution is
granted.
12. An application for execution of a judgment to which paragraph 4 of
this
Article applies must be made within five years from the date when such
judgment
became final.
Article 21
1. Actions under this Convention shall be subject to a period of
limitation
of two years from the date of the incident which caused the damage.
2. The grounds for suspension or interruption of the period referred to in
paragraph 1 of this Article shall be determined by the law of the court
trying
the action; but in any case the right to institute an action shall be
extinguished on the expiration of three years from the date of the incident
which caused the damage.
Article 22
In the event of the death of the person liable, an action in respect of
liability under the provisions of this Convention shall lie against those
legally responsible for his obligations.
CHAPTER V-APPLICATION OF THE CONVENTION AND GENERAL PROVISIONS
Article 23
1. This Convention applies to damage contemplated in Article 1 caused in
the
territory of a Contracting State by an aircraft registered in the territory
of
another Contracting State.
2. For the purpose of this Convention a ship or aircraft on the high seas
shall be regarded as part of the territory of the State in which it is
registered.
Article 24
This Convention shall not apply to damage caused to an aircraft in flight,
or to persons or goods on board such aircraft.
Article 25
This Convention shall not apply to damage on the surface if liability for
such damage is regulated either by a contract between the person who suffers
such damage and the operator or the person entitled to use the aircraft at
the
time the damage occurred, or by the law relating to workmen's compensation
applicable to a contract of employment between such persons.
Article 26
This Convention shall not apply to damage caused by military, customs or
police aircraft.
Article 27
Contracting States will, as far as possible, facilitate payment of
compensation under the provisions of this Convention in the currency of the
State where the damage occurred.
Article 28
If legislative measures are necessary in any Contracting State to give
effect to this Convention, the Secretary General of the International Civil
Aviation Organization shall be informed forthwith of the measures so taken.
Article 29
As between Contracting States which have also ratified the International
Convention for the Unification of Certain Rules relating to Damage caused by
Aircraft to Third Parties on the Surface opened for signature at Rome on the
29
May 1933, the present Convention upon its entry into force shall supersede
the
said Convention of Rome.
Article 30
For the purposes of this Convention:
'Person' means any natural or legal person, including a State.
'Contracting State' means any State which has ratified or adhered to this
Convention and whose denunciation thereof has not become effective.
'Territory of a State' means the metropolitan territory of a State and all
territories for the foreign relations of which that State is responsible,
subject to the provisions of Article 36.
CHAPTER VI-FINAL PROVISIONS
Article 31
This Convention shall remain open for signature on behalf of any State
until
it comes into force in accordance with the provisions of Article 33.
Article 32
1. This Convention shall be subject to ratification by the signatory
States.
2. The instruments of ratification shall be deposited with the
International
Civil Aviation Organization.
Article 33
1. As soon as five of the signatory States have deposited their
instruments
of ratification of this Convention, it shall come into force between them on
the ninetieth day after the date of the deposit of the fifth instrument of
ratification. It shall come into force, for each State which deposits its
instrument of ratification after that date, on the ninetieth day after the
deposit of its instrument of ratification.
2. As soon as this Convention comes into force, it shall be registered
with
the United Nations by the Secretary General of the International Civil
Aviation
Organization.
Article 34
1. This Convention shall, after it has come into force, be open for
adherence by any non-signatory State.
2. The adherence of a State shall be effected by the deposit of an
instrument of adherence with the International Civil Aviation Organization
and
shall take effect as from the ninetieth day after the date of the deposit.
Article 35
1. Any Contracting State may denounce this Convention by notification of
denunciation to the International Civil Aviation Organization.
2. Denunciation shall take effect six months after the date of receipt by
the International Civil Aviation Organization of the notification of
denunciation; nevertheless, in respect of damage contemplated in Article 1
arising from an incident which occurred before the expiration of the six
months
period, the Convention shall continue to apply as if the denunciation had not
been made.
Article 36
1. This Convention shall apply to all territories for the foreign
relations
of which a Contracting State is responsible, with the exception of
territories
in respect of which a declaration has been made in accordance with paragraph
2
of this Article or paragraph 3 of Article 37.
2. Any State may at the time of deposit of its instrument of ratification
or
adherence, declare that its acceptance of this Convention does not apply to
any
one or more of the territories for the foreign relations of which such State
is
responsible.
3. Any Contracting State may subsequently, by notification to the
International Civil Aviation Organization, extend the application of this
Convention to any or all of the territories regarding which it has made a
declaration in accordance with paragraph 2 of this Article or paragraph 3 of
Article 37. The notification shall take effect as from the ninetieth day
after
its receipt by the Organization.
4. Any Contracting State may denounce this Convention, in accordance with
the provisions of Article 35, separately for any or all of the territories
for
the foreign relations of which such State is responsible.
Article 37
1. When the whole or part of the territory of a Contracting State is
transferred to a non-contracting State, this Convention shall cease to apply
to
the territory so transferred, as from the date of the transfer.
2. When part of the territory of a Contracting State becomes an
independent
State responsible for its own foreign relations, this Convention shall cease
to
apply to the territory which becomes an independent State, as from the date
on
which it becomes independent.
3. When the whole or part of the territory of another State is transferred
to a Contracting State, the Convention shall apply to the territory so
transferred as from the date of the transfer; provided that, if the territory
transferred does not become part of the metropolitan territory of the
Contracting State concerned, that Contracting State may, before or at the
time
of the transfer, declare by notification to the International Civil Aviation
Organization that the Convention shall not apply to the territory transferred
unless a notification is made under paragraph 3 of Article 36.
Article 38
The Secretary General of the International Civil Aviation Organization
shall
give notice to all signatory and adhering States and to all States members of
the Organization or of the United Nations:
(a) of the deposit of any instrument of ratification or adherence and the
date thereof, within thirty days from the date of the deposit, and
(b) of the receipt of any denunciation or of any declaration or
notification
made under Article 36 or 37 and the date thereof, within thirty days from the
date of the receipt.
The Secretary General of the Organization shall also notify these States
of
the date on which the Convention comes into force in accordance with
paragraph
1 of Article 33.
Article 39
No reservations may be made to this Convention.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, having been duly
authorized, have signed this Convention.
DONE at Rome on the seventh day of the month of October of the year One
Thousand Nine Hundred and Fifty-two in the English, French and Spanish
languages, each text being of equal authenticity.
This Convention shall be deposited with the International Civil Aviation
Organization where, in accordance with Article 31, it shall remain open for
signature, and the Secretary General of the Organization shall send certified
copies thereof to all signatory and adhering States and to all States members
of the Organization or the United Nations.
(Here follow the signatures of the Plenipotentiaries of the States on
behalf
of which the Convention was signed.)
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