Carriage By Air

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1.
Short title
This Act may be cited as the Carriage by Air Act, 1993.

2.
Interpretation
In this Act, unless the context otherwise requires—
“the Convention” means the Convention set out in the First Schedule being a Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on the 12th October, 1929 as amended by a Protocol opened for signature at the Hague on the 28th September, 1955 and any other Convention which may from time to time amend or replace the said Convention and is ratified or acceded to by the Government of Kenya;
“court” includes (in an arbitration allowed by the Convention) an arbitrator;
“the former Act “ means the Carriage by Air Act, 1932, of the United Kingdom;
“Minister” means the Minister for the time being responsible for air transport;
“the Orders-in Council” mean’s the Carriage of Goods by Air (Colonies, Protectorates and Mandated Territories) Order, 1934 and the Carriage by Air (Non-International Carriage) (Colonies, Protectorates and Trust Territories) Order, 1953 as amended by the Carriage by Air (Non-International Carriage) (Colonies, Protectorates and Trust Territories) (Amendment) Order, 1955. [22 and 23 Geo 5.]

3.
Convention to have force of law
The provisions of the Convention shall, so far as they relate to the rights and liabilities of carriers, carriers servants and agents, passengers, consignors, consignees and other persons, and subject to the provisions of this Act, have the force of law in Kenya in relation to any carriage by air to which the Convention applies, irrespective of the nationality of the aircraft performing that carriage.

4.
Designation of High Contracting Parties
(1) The Minister may, by notice in the Gazette, from time to time certify who are the High Contracting Parties to the Convention, in respect of what territories they are respectively parties and to what extent they have availed themselves of the provisions of the additional Protocol to the Convention at the end of the Convention as set out in the First Schedule.
(2) A notice under this section shall, except in so far as it has been superseded by a subsequent notice, be conclusive evidence of the matters so far certified.
(3) Any liability imposed by Article 17 of the Convention on a carrier in respect of the death of a passenger shall be in substitution for any liability of the carrier in respect of the death of that passenger either under any written law or at common law, and the provisions set out in the Second Schedule shall have effect with respect to the persons by and for whose benefit the liability so imposed is enforceable and with respect to the manner in which it may be enforced.

5.
Fatal accidents
References in section 3 of the Fatal Accidents Act (Cap. 32) to a wrongful act, neglect or default shall include references to any occurrence which gives rise to a liability under Article 17 of the Convention.

6.
Limitation of liability
(1) The limitations on liability in Article 22 of the Convention shall apply whatever the nature of the proceedings by which liability may be enforced and, in particular—
(a) those limitations shall apply where proceedings are brought by a tortfeasor to obtain a contribution from another tortfeasor; and
(b) the limitation for each passenger referred to in paragraph (1) of Article 22 shall apply to the aggregate liability of the carrier in all proceedings which may be brought against him under the law of Kenya, together with any proceedings brought against him outside Kenya.

(2) A court before which proceedings are brought to enforce a liability which is limited by Article 22 of the Convention 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 Article 22, and of any other proceedings which have been, or are likely to be, commenced in Kenya or elsewhere to enforce the liability in whole or in part.
(3) Notwithstanding subsection (2), a court before which proceedings are brought to enforce a liability which is limited by Article 22 of the Convention shall, where the liability is, or may be, partly enforceable in other proceedings in Kenya or elsewhere, have jurisdiction to award an amount less than the court would have awarded if the limitation applied solely to the proceedings before the court, or to make any part of its award conditional on the result of any other proceedings.
(4) The Minister for the time being responsible for finance may from time to time, by order published in the Gazette specify the respective amounts which for the purposes of Article 22 of the Convention, and in particular paragraph (5) of that Article, are to be taken as equivalent to the sums expressed in francs which are mentioned in that Article.
(5) Reference in this section to Article 22 include, subject to any necessary modifications, reference to that Article as applied by Article 25A of the Convention.

7.
Time for bringing proceedings
(1) No action against a carrier’s servant or agent which arises out of damage to which the Convention relates shall, if he was acting within the scope of his employment be brought after more than two years, 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.
(2) Article 29 of the Convention shall not be read as applying to any proceedings for contribution between tortfeasors, but no action shall be brought by a tortfeasor to obtain a contribution from a carrier in respect of a tort to which Article 29 applies after the expiration of two years from the time when judgement is obtained against the persons seeking to obtain the contribution.
(3) Subsections (1) and (2) and the provisions of Article 29 of the Convention shall have effect as if references in those provisions to an action include reference to an arbitration; and subsections (3) and (4) of section 34 of the Limitation of Actions Act (Cap. 22) shall apply for the purposes of this subsection.

8.
Contributory negligence
For the purposes of Article 21 of the Convention section 4 of the Law Reform Act (Cap. 26) shall be provisions of the law of Kenya under which a court may exonerate the carrier wholly or partly from his liability.

9.
Power to exclude aircraft in the use for military purposes, etc.
(1) The Minister may from time to time by order published in the Gazette direct that this section shall apply or shall cease to apply, to Kenya or any other State specified in the order.
(2) The Convention shall not apply to the carriage of persons, cargo and baggage for the military authorities of a State to which this section applies in aircraft registered in that State if the whole capacity of the aircraft has been reserved by or on behalf of those authorities.

10.
Actions against High Contracting Parties
Every High Contracting Party to the Convention who has not availed himself of the provisions of the Additional Protocol thereto shall, for the purposes of any action brought in a court in Kenya in accordance with the provisions of Article 28 of the Convention to enforce a claim in respect of carriage undertaken by him, be deemed to have submitted to the jurisdiction of that court, and accordingly rules of court may provide for the manner in which any such action is to be commenced and carried on; but nothing in this section shall authorize the issue of execution against the property of any High Contracting Party.

11.
Application of convention to Carriage by air not covered by the Convention
(1) The Minister may, by order in the Gazette, apply the First Schedule, together with any other provisions of this Act, to carriage by air, not being carriage by air to which the Convention applies, of such description as may be specified in the order subject to such exceptions, adaptations and modifications (if any), as may be specified.
(2) An order under this section shall not be made unless a draft of the order has been laid before National Assembly and approved by a resolution of the Assembly.

12.
Act to bind Government
This Act shall bind the Government.

13.
Application of United Kingdom legislation
(1) The former Act and the Order-in-Council as applied to Kenya shall cease to have the force of law in Kenya from the commencement of this Act.
(2) The former Act and the Orders-in-Council shall, notwithstanding subsection (1), continue to apply to any agreement made or contract entered into before the commencement of this Act.
(3) All proceedings which immediately before the commencement of this Act are pending before the court shall not be affected by the provisions of subsection (1) and may be continued and concluded accordingly.
FIRST SCHEDULE
[Sections 22 and 4(1).] CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR AS AMENDED BY THE HAGUE PROTOCOL OF 1955
CHAPTER I – SCOPE—DEFINITIONS
Article 1
(1) This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.
(2) For the purposes of this Convention, the expression “international carriage” means any Carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either 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 within the territory of another state, even if that State is not a High Contracting Party. Carriage between two points within the territory of a single High Contracting Party without an agreed stopping place within the territory of another state is not international carriage for the purposes of this Convention.
(3) Carriage to be performed by several successive air earners is deemed, for the purposes of this Convention to be one undivided carriage if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territory of the same State.

Article 2
(1) This Convention applies to carriage performed by the State or by legally constituted public bodies provided it falls within the conditions laid down in Article 1.
(2) This Convention does not apply to carriage of mail and postal packages.
CHAPTER II – DOCUMENTS OF CARRIAGE
SECTION I –
PASSENGER TICKET

SECTION 2 –
BAGGAGE CHECK

SECTION 3 –
AIR WAYBILL
CHAPTER III – LIABILITY OF THE CARRIER
Article 17
The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Article 18
(1) The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage by air.
(2) The carriage by air within the meaning of the preceding paragraph comprises the period during which the baggage or cargo is in charge of the carrier, whether in an aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome, in any place whatsoever.
(3) The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome. If, however, such a carriage takes place in the performance of a contract for carriage by air, for the purpose of loading delivery or transhipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air.

Article 19
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo.

Article 20
The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.

Article 21
If the carrier proves that the damage was caused by or contributed to by the negligence of the injured person the court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from this liability.

Article 22
(1) In the carriage of persons the liability of the carrier for each passenger is limited to the sum of two hundred and fifty thousand francs. Where, in accordance with the law of the court seised of the case, damages may be awarded in the form periodical payments the equivalent capital value of the said payments shall not exceed two hundred and fifty thousand francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.
(2)
(a) In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of two hundred and fifty francs per kilogramme, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the passenger’s or consignor’s actual interest in delivery at destination.
(b) In the case of loss, damage or delay of part of registered baggage or cargo, or of any object contained therein the weight to be taken into consideration in determining the amount to which the carrier’s liability is limited shall be only the total weight of the package or packages concerned. Nevertheless when the loss, damage or delay of a part of the registered baggage or cargo, of an object contained therein, affects the value of other packages covered by the same baggage check or the same air waybill, the total weight of such package or packages shall be taken into consideration in determining the limit of liability.

(3) As regards objects of which the passenger takes charge himself the liability of the carrier is limited to five thousand francs per passenger.
(4) The limits prescribed in this Article shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff. The foregoing provision shall not apply if the amount of the damages awarded, excluding court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of occurrence causing the damage, or before the commencement of the action, if that is later.
(5) The sums mentioned in francs in this Article shall be deemed to refer to a currency unit consisting of sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. These sums may be converted into national currencies in round figures. Conversion of 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 judgement.

Article 23
(1) Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in convention shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Convention.
(2) Paragraph (1) of this Article shall not apply to provisions governing the loss or damage resulting from the inherent defect, quality or vice of the cargo carried.

Article 24
(1) In the cases covered by Articles 13 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention.
(2) In the cases covered by Article 17 the provisions of the preceding paragraph also apply, without prejudice to the questions as to who are the person, who have the right to bring suit and what are their respective rights.

Article 25
The limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment.

Article 25A
(1) If an action is brought against a servant or agent of the carrier arising out of damage to which this Convention relates, such servant or agent, if he proves that he acted within the scope of his employment, shall be entitled to avail himself of the limits of liability which that carrier himself is entitled to invoke under Article 22.
(2) The aggregate of the amounts recoverable from the carrier, his servants and agents, in that case, shall not exceed the said limits.
(3) The provisions of paragraphs (1) and (2) of this Article shall not apply if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result.

Article 26
(1) Receipt by the person entitled to delivery of baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage.
(2) In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in case of baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his disposal.
(3) Every complaint must be made in writing upon the document of carriage or by separate notice in writing despatched within the times aforesaid.
(4) Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part.

Article 27
In the case of the death of the person liable, an action for damages lies in accordance with the terms of this Convention against those legally representing his estate.

Article 28
(1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or an establishment by which the contract has been made or before the court having jurisdiction at the place of destination.
(2) Questions of procedure shall be governed by the law of the court seised of the case.

Article 29
(1) The right to damages shall be extinguished if an action is not brought within two years, 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.
(2) The method of calculating the period of limitation shall be determined by the law of the court seised of the case.

Article 30
(1) In the case of carriage to be performed by various successive carriers and falling within the definition set out in the third paragraph of Article 1, each carrier who accepts passengers, baggage or cargo is subjected to the rules set out in this Convention, and is deemed to be one of the contracting parties to the contract of carriage in so far as the contract deals with that part of the carriage which is performed under his supervision.
(2) In the case of carriage of this nature, the passenger or his representative can take action only against the carrier who performed the carriage during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey.
(3) As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and a passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier who performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee.
CHAPTER IV – PROVISIONS RELATING TO COMBINED CARRIAGE
Article 31
(1) In the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of this Convention apply only to the carriage by air, provided that the carriage by air falls within the terms of Article 1.
(2) Nothing in this Convention shall prevent the parties in the case of combined carriage from inserting in the document of air carnage conditions relating to other modes of carnage, provided that the provisions of this Convention are observed as regards the carriage by air.
CHAPTER V – GENERAL AND FINAL PROVISIONS
Article 32
Any clause contained in the contract and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this Convention, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void. Nevertheless for the carriage of cargo arbitration clauses are allowed, subject to this Convention, if the arbitration is to take place within one of the jurisdictions referred to in the first paragraph of Article 28.

Article 33
Nothing contained in this Convention shall prevent the carrier either from refusing to enter into any contract of carriage or from making regulations which do not conflict with the provisions of this Convention.

Article 34
The provisions of Articles 3 to 9 inclusive relating to documents of carriage shall not apply in the case of carriage performed in extraordinary circumstances outside the normal scope of an air carrier’s business.

Article 35
The expression “days” when used in this Convention means current days not working days.

Article 36
The Convention is drawn up in French in a single copy which shall remain deposited in the archives of the Ministry of Foreign Affairs of Poland and of which one duly certified copy shall be sent by the Polish Government to the Government of each of the High Contracting Parties.
(1) In Article 37, paragraph (2) and Article 40, paragraph (1), the expression High Contracting Party shall mean State in all other cases, the expression High Contracting Party shall mean a State whose ratification of or adherence to the Convention has become effective and whose denunciation thereof has not become effective.
(2) For the purposes of the Convention the word territory means not only the metropolitan territory of a state but also all other territories for the foreign relations of which that State is responsible.
[Articles 37, 38, 39, 40 and 41 and the concluding words of the Convention are not reproduced. They merely deal with the coming into force of the Convention.]

ADDITIONAL PROTOCOL
(With reference to Article 2) The High Contracting Parties reserve to themselves the right to declare at the time of ratification or accession that the first paragraph of Article 2 of this Convention shall not apply to international carriage by air performed directly by the State, its colonies, protectorates or mandated territories or by any other territory its sovereignty, suzerainty or authority.
SECOND SCHEDULE
[Section 4(3).] PROVISIONS AS TO LIABILITY OF CARRIER IN THE EVENT OF THE DEATH OF A PASSENGER
1.
(1) The liability shall be enforceable for the benefit of such of the members of the passenger’s family as sustained damage by reason of his death.
(2) In this paragraph the expression “member of a family” means wife or husband, parent, step-parent, grandparent, brother, sister, half-brother, half-sister, child, step-child and grand-child:
Provided that, in deducing any such relationship as aforesaid, any illegitimate person and any adopted person shall be treated as being, or as having been, the legitimate child of his mother and reputed father or, as the case may be, of his adopters.

2.
An action to enforce the liability may be brought by the personal representative of the passenger or by any person for whose benefit the liability is under the last preceding paragraph enforceable, but only one action shall be brought in Kenya in respect of the death of any one passenger, and every such action by whomsoever brought shall be for the benefit of all such persons so entitled as aforesaid as either are domiciled in Kenya or, not being domiciled they express a desire to take the benefit of the action.

3.
Subject to paragraph (4) the amount recovered in any such action, after deducting any costs not recovered from the defendant, shall be divided between the persons entitled in such proportions as the court may direct.

4.
The court before which any action is brought 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 First Schedule to this Act limiting the liability of a carrier and of any proceedings which have been, or are likely to be, commenced outside Kenya in respect of the death of the passenger in question.