2006
CIVIL AVIATION (REPEAL AND RE-ENACTMENT) ACT 2006
ARRANGEMENT OF SECTIONS
PART 1- CONTROL OF CIVIL AVIATION
1. Control and supervision of civil aviation.
PART 11- THE NIGERIAN CIVIL AVIATION AUTHORITY
2. Establishment of the Nigerian Civil Aviation Authority.
PART III-THE GOVERNING BOARD OF THE AUTHORITY
3. Membership of the Governing Board. 4. Tenure of office. 5. Cessation of office. 6. Allowances, Expenses etc of Chairman and Members. 7. Functions of the Board.
PART IV-STAFF OF THE AUTHORITY
8. Director-General of the Authority. 9. Appointment of Secretary and other staff by the Board.
10. Conflict of interests
11. Pensions.
PART V- FINANCIAL PROVISIONS
12. Air Ticket and Cargo Sales Charge.
13. Fund of the Authority.
14. Expenditure by the Authority.
15. Power to accept gifts.
16. Power to Borrow and Invest.
17. Exemption from tax.
18. Duty to be financially prudent.
PART VI- INFORMATION, NOTICES ETC
19. Power to request for information.
20. Restriction on disclosure of information.
21. Service of notices.
22. Service of documents.
PART VII- MISCELLANEOUS PROVISIONS.
23. Power to Acquire Land.
24. Limitation of suits against the Authority.
25. Restriction of execution against property of the Authority.
26. Indemnification of officers.
PART VII-INVESTIGATION AND ENFORCEMENT
27. Power to investigate, impose fines and enforce. 28. Directions by Minister. 29. Investigation of accidents/Accident Investigation Bureau.
PART IX-THE AUTHORITY'S POWER TO REGULATE CIVIL AVIATION.
30. Power to regulate air navigation.
PART X- FUNCTIONS OF THE AUTHORITY
31. Functions of the Authority.
PART XI- CONTROL OF AIR TRANSPORT UNDERTAKING.
32. Licensing of air transport undertakings. 33. Eligibility for licences, Permits etc. 34. Air Operator Certificate (AOC) 35. Variation, Suspension and Revocation of licences, Permits etc. 36. Supplementary provisions relating to licences, Permits, etc. 37. General duties in relation to air transport licensing functions of the Authority.
PART XII- PROVISION OF AERODROMES, CONTROL OF LAND FOR AVIATION
PURPOSES, ETC
38. Power of Minister to approve the establishment aerodromes. 39. Eligibility for an aerodrome licence. 40. Duty of the Authority to consider environmental factors when licensing Aerodromes. 41. Fixing by reference to noise factors the charges for using Licensed aerodromes. 42. Requirements for approval of aerodrome security programme. 43. Requirements for approval of airline security programme. 44. Security Surveys, Audits, Tests and Inspections. 45. Security checks of persons and baggage. 46. Obstructions near aerodromes. 47. Trespass on Licensed aerodromes.
PART XIII-SPECIAL PROVISIONS AS TO TRESPASS, NUISANCE, SALVAGE AND PATENTS, ETC.
48. Carriers liability. 49. Actions in trespass, nuisance and damage from aircraft. 50. Application to aircraft of law of wreck and salvage. 51. Patent claims. 52. Infringement of patent. 53. Detention of aircraft.
PART XIV- OFFENCES
54. Offences. 55. Dangerous flying. 56. Hijacking and interference 57. Offences of endangering safety, destroying or damaging of an aircraft in flight etc. 58. Prohibition of unruly and indecent conduct. 59. Offences at aerodromes. 60. Destruction of, or damages to, air navigation and other facilities.
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61. Duties of Operators and Personnel. 62. Transportation of Dangerous Goods. 63. Federal High Court to try offences.
PART XV- GENERAL
64. Power of the Authority to make rules for protecting public health. 65. Emergency powers for protecting public health. 66. Power of Minister to make orders in emergency. 67. Designation of essential services. 68. Bilateral Exchanges of Safety oversight responsibilities 69. Regional cooperative Aviation Safety Agreement 70. Aviation safeguards. 71. Compensation schemes for passengers and other allied aviation services consumers 72. Regulation of sale, distribution and provision of allied services. 73.Application of certain conventions. 74
Insurance 74. Air Services Agreement. 75. Periodic publication of air transport policy. 76. Repeals and savings provisions. 77. Definitions. 78. Short title
Schedules
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A BILL FOR
AN ACT TO REPEAL THE CIVIL AVIATION ACT AS AMENDED AND TO RE-
ENACT THE CIVIL AVIATION ACT TO PROVIDE FOR THE REGULATION OF
CIVIL AVIATION, ESTABLISHMENT OF THE NIGERIAN CIVIL AVIATION
AUTHORlTY AND FOR OTHER PURPOSES CONNECTED THEREWITH.
BE IT Enacted by the National Assembly of the Federal Republic of Nigeria as
follows: -
PART 1- CONTROL OF AIR NAVIGATION
1 .
The Minister shall be charged with the responsibility for the formulation of
policies and strategies for the promotion and encouragement of civil aviation
in Nigeria and the fostering of sound economic policies that assure the
provision of efficient and safe services by air carriers and other aviation and
allied service providers as well as greater access to air transport in a
sustainable manner and to assist with ensuring that Nigeria's obligations
under international agreements are implemented and adhered to.
[ ] Commencement
Control and supervision of civil
aviation
Establishment of
the Nigerian Civil Aviation Authority
3. 3(1) The Authority shall have a Governing Board (in this Act referred to Membership of the as "the Board") which shall consist of : Governing Board
PART 11- THE NIGERIAN CIVIL AVIATION AUTHORITY
2. 2(1) There is hereby established a body to be known as the Nigerian Civil Aviation Authority (in this Act referred to as "the Authority").
(2). The Authority
(a) shall be a body corporate with perpetual succession and a common seal.
(b) may sue or be sued in its corporate name; and
(c) may acquire, hold or dispose of property whether moveable or immovable.
PART III. THE GOVERNING BOARD OF THE AUTHORITY
(a) a Chairman;
(b)one representative not below the rank of a Director of the following
Ministries:
(i) the Federal Ministry of Aviation or the Ministry for the time being
responsible for Aviation;
(ii) the Federal Ministry of Defence or the Ministry for the time being
responsible for Defence; and
(iii) the Federal Ministry of Communications or the Ministry for the time being
responsible for Communications.
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(c) four persons with cognate experience in aviation; and
(d) the Director-General of the Authority.
(2) The Chairman and members of the Board other than the Director General
shall be appointed on part ti me basis by the President on the
recommendation of the Minister.
(3)The Chairman and members of the Board, including the Director General,
shall be persons of recognised expert knowledge, qualification and
experience of not less than ten years in one or more of the following fields:
(a) Aeronautical Engineering
(b) Aviation Law
(c) Air Transport Management,
(d) Aerodrome Engineering,
(e) Aircraft Piloting, or
(f) Telecommunications.
(4 )The supplementary provisions set out in Schedule VI to this Act shall Schedule VI have effect with respect to the proceedings of the Board and the other matters contained therein.
4. A member of the Board, other than the Director General, shall hold Tenure of office office:
(a) for a term of 4 years in the first instance and may be reappointed for a further term of 4 years and no more, and
(b) on such terms and conditions as may be specified in the letter of appointment.
5. (1) Notwithstanding the provisions of section 4 of this Act, a person shall Cessation of office cease to
hold office as a member of the Board if-
(a) he becomes bankrupt, suspends payment or compounds with his creditors; or
(b) he is convicted of a felony or any offence involving dishonesty or fraud; or
(c) he becomes of unsound mind or is incapable of carrying out his duties; or
(d) he is guilty of a serious misconduct in relation to his duties; or
(e) in the case of a person possessed of professional qualification, he is
disqualified or suspended from practising his profession in any part of the
world by an order of a competent authority; or
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(f) he resigns his appointment by a letter addressed to the President.
(2) A member of the Board, other than the Director General, may be removed
by the President, on the recommendation of the Minister if the Minister is
satisfied that it is not in the interest of the Authority or the public for the
member to continue in office.
(3) If a member of the Board ceases to hold office for any reason whatsoever
before the expiration of the term for which he is appointed, another person
representing the same interest as that member shall be appointed to the
Board for the unexpired term.
6. The Chairman and members of the Board shall be paid such allowances,
expenses and benefits in accordance with extant Federal Government
Financial Guidelines.
Allowances,
Expenses etc of
Chairman and
Members
Functions of the
Board.
8. (1) There shall be for the Authority a Director General who shall be Director-General appointed by
the President, on such terms and conditions as stipulated of the Authority in the act, subject to the
confirmation by the Senate.
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The Board shall:
(a) fix terms and conditions of service including remuneration of the
employees of the Authority in accordance with the provision of Salary and
Wages Commission.
(b) receive and review annual reports from the Management of the Authority
and submit same to the President and the National Assembly, through the
Minister, not later than 30th June in each year. The report shall be on the
activities of the Authority during the immediately preceding calendar year, and
shall include a copy of the audited accounts of the Authority for that calendar
year;
(c) submit not later than 30th September in each year to the Minister an
estimate of the expenditure and income of the Authority for the next
succeeding year; and
(d) cause to be kept, proper accounts of the Authority in respect of each year
and proper records in relation thereto and shall cause the accounts to be
audited not later than 6 months after the end of each year by auditors
appointed from the list and in accordance with the guidelines supplied by the
Auditor-General of the Federation.
PART IV- STAFF OF THE AUTHORITY
(2) The Director-General shall be primarily responsible for the fostering of the safety of civil aviation in Nigeria and shall be:
(a) the chief executive and accounting officer of the Authority;
(b) responsible for the day-to-day administration of the Authority;
(c) appointed for a term of 5 years in the first instance and may be re- appointed for a further term of 5 years and no more; and
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10.
(d) a person who possesses relevant and adequate professional
qualifications and shall have been so qualified for a period of not less than 15
years.
(3) The Director General may be suspended or removed from office by the
President if he:
(a) has demonstrated inability to effectively perform the duties of his office; or
(b) has been absent from 5 (five) consecutive meetings of the Board without
the consent of the Chairman unless he shows good reason for such absence;
or
(c) is guilty of serious misconduct in relation to his duties as Director General;
or
(d) in the case of a person possessed of professional qualifications, he is
disqualified or suspended from practising his profession in any part of the
world by an order of a competent authority; or
(e) is guilty of a Conflict of Interest as stipulated in section 10 of this Act.
(4) The Director General shall not be removed from office except in
accordance with the provisions of this Act.
9. (1) The Board shall appoint for the Authority a Secretary who shall:
(a) be a legal practitioner and shall have been so qualified for a period of not
less tha n 12 years;
(b) conduct the correspondence of the Board and keep the official seal and
records of the Authority; and
(c) perform such other functions as the Board or the Director-General, may,
from time to time assign to him.
(2) The Authority shall appoint such number of employees as may be
expedient and necessary for the proper and efficient performance of its
functions under this Act.
(3) Notwithstanding the provisions of subsections (1) and (2) of this section, the
Authority shall have power to appoint either directly or on secondment from any
public service in the Federation or of a State, such number of staff as may, in its
opinion be required to assist it in the discharge of any of the Authority's
functions under this Act.
(4) Nothing in subsection (3) of this section shall preclude the Authority from
appointing persons from outside the public service of the Federation or of a
State.
(1) The Minister of Aviation, Members of the Governing Board, Director
General and employees of the Ministry of Aviation and the Authority shall not
control, manage or operate any aviation enterprise while in office.
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Appointment of Secretary and
other staff by the
Authority
Conflict of
Interests
(2) Any of the persons specified in sub-section 1 above, having a financial
interest in any aviation enterprise shall make full disclosure of such interest to
their respective appointing authorities.
(3) Any of the persons mentioned in subsection (1) above is prohibited from
participating in any action or decision that may, whether directly or indirectly
affect their financial interest(s) in any aviation enterprise.
11. (1) Service in the Authority shall be approved service for the purpose of Pensions the
Pension Reform Act 2004 or any other Act for the time being in
force.
13.
(2) The officers and other persons employed in the Authority shall be entitled
to pensions, gratuities and other retirement benefits in conformity with
provisions of the Pensions Reform Act 2004.
(3) Nothing in subsections (1) and (2) of this section, shall prevent the
appointment of a person to any office on terms which may preclude the grant
of a pension, gratuity or other retirement benefits in respect of that office.
(4) For the purposes of the application of the provisions of the Pensions Act,
any power exercisable there under by a Minister or other authority (other than
the power to make regulations the Pensions Act) is hereby vested in and shall
be exercisable solely by the Board.
PART V - FINANCIAL PROVISIONS
12 (1) There shall continue to be a 5% air ticket contract, charter and cargo sales
charge to be collected by the airlines and paid over to the Authority.
(2) The Air Ticket and Cargo Sales charge may be reviewed by the Authority in consultation with the stakeholders from time to time.
(3) Funds accruing from the said charge shall be shared in the following manner-
(a) the Nigeria Civil Aviation Authority - 58%
(b) Nigerian Airspace Management Agency - 23%
(c) Nigerian Meteorological Agency - 9%
(d) Nigerian College of Aviation Technology - 7%
(e) Accident Investigation Bureau - 3%
Provided that if any of the above listed agencies is privatised it shall
immediately cease to share in the funds as aforesaid and the Minister may by
regulation specify how the share of such privatised agency shall be applied or
disbursed.
There shall be established and maintained for the Authority a fund into which shall be paid and credited:
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Air Ticket and
Cargo Sales
Charge.
Fund of the
Authority
(a) all subventions and budgetary allocation from the Government of the
Federation;
(b) all fees and funds in respect of services provided by the Authority, and
accruing from the grant of-
(i) Air Travel Organizer's Licence,
(ii) Air Transport Licence/Airline Operating Permit/Permit for
non-commercial flights,
(iii) Air Operator Certificate;
(iv) Calibration of navigational aids where applicable,
(v) Personnel licences,
(vi) 58% of the air ticket and cargo and charter sales charge
imposed in section 12 of this Act,
(vii) Approved Maintenance Organisation (AMO) approval,
(viii) Aircraft registration and certification,
(ix) Certificate of Airworthiness (issue and renewal),
(x) Rental of property, plant and equipment,
(xi) Medical examination fees, where applicable,
(xii) Proceeds from sales of information and publications,
(xiii) Contract registration fees;
(xiv) any licence, certificates, permits, contracts or leases issued pursuant to the provisions of this Act.
(xv) Registration legal instruments and interests
(xvi) Aerodrome, Heliport and Helipad operating Licence;
(xvii) Aviation height clearance
(xviii) Aviation Training Organisations, and
(xix) Registration of Agencies.
(c) all fines payable for violation of civil aviation regulations, rules and orders;
(d) all sums accruing to the Authority by way of gifts, endowments, bequests,
grants or other contributions by persons and organisations;
(e) returns on investments;
(f) foreign aid and assistance; and
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(g) all other sums which may, from time to time, accrue to the Authority.
14. The Director General of the Authority shall, from time to time, apply the Expenditure by the funds of the Authority to: Authority
(a) the cost of administration and maintenance of the Authority;
(b) publicise and promote the activities of the Authority;
(c) pay allowances, expenses and other benefits of members of the Board and Committees of the Board;
(d) pay the salaries, allowances and benefits of employees of the Authority;
(e) pay other overhead allowances, benefits and other administrative costs of the Authority; and
(f) undertake such other activities as are connected with all or any of the functions of the Authority under this Act.
15. (1 )The Authority may accept gifts of land, money or other property on Power to accept such terms and conditions, if any, as may be specified by the person or gifts organisation making the gift.
17.
(2) The Authority shall not accept any gift if the conditions attached by the
person or organisations making the gift are inconsistent with the functions of
the Authority under this Act.
16. (1) Subject to all applicable laws, the Board may, from time to time, borrow by
overdraft or otherwise, such money as the Authority may require for the
performance of its functions under this Act.
(2) The Board shall not, without the approval of the President borrow money,
which exceeds, at any time, the limit set by the Government of the Federation.
(3) Notwithstanding subsection (1) of this section, where the sum to be
borrowed is in foreign currency, the Board shall not borrow the sum without
the prior approval of the President
(4) The Board may, subject to the provisions of this Act and the conditions of
any trust created in respect of any property, invest all or any of its funds in
accordance with any general guidelines approved by the President.
(5) The Board may invest funds in such securities as it deems fit and proper.
(1) The Authority shall be exempted from the payment of tenement rates and income tax.
(2) The provision of any enactment relating to the taxation of companies or trust funds shall not apply to the Authority.
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Power to Borrow
and Invest
Exemption from
Tax
18. (1) The Director-General shall conduct the Authority's affairs with Duty to be
prudence and due diligence to ensure that the Authority does not financially prudent
become insolvent.
21.
(2) The Authority shall strive to recover the whole of its costs and to achieve
reasonable returns on capital and investment.
PART VI- INFORMATION, NOTICES, ETC.
19. (1) For the purpose of obtaining required information for the proper discharge
of the functions conferred upon it by this Act, any authorised officer of the
Authority may by notice in writing -
(a) require any person who undertakes the business of air transport including
carriage of passengers or goods in an aircraft for reward, to furnish such
information relating to such business and flights as may be specified in the
notices; and
(b) specify the times and the form and manner in which, any information
required under paragraph (a) of this subsection shall be furnished.
(2) In carrying out the functions conferred on the Authority, an authorised
officer of the Authority shall have unrestricted access to the business
premises, aircraft, structures and other apparatus used by any operator for
the purpose of air transport or related operations.
(3) In this section, "authorised officer" means the Director General or any
other officer of the Authority specifically or generally authorised by the
Director General to carry out the functions of the Authority under this Act.
20. (1) No estimates, returns or information relating to an air transport
undertaking obtained under the foregoing provisions of this Act, shall, without
the prior consent in writing of the person carrying on the undertaking which is
the subject of the estimates, returns, or information, be disclosed except-
(a) in accordance with directions given by the Authority for the purpose of the
exercise of any of its functions under this Act; or
(b) for the purposes of any proceedings under this Act.
(2) If any person discloses any estimates, returns or any information in
contravention of subsection 1 of this section, he shall be guilty of an offence
and be liable on conviction to imprisonment for a term not less than 1 month
or a fine not less than N25, 000.00 or both.
(1) Any notice required or authorised under this Act to be served on any
person may be served either by:
(a) delivering it to the person or his agents or servants; or
(b) leaving it at the person's proper address; or
(c) posting it to the person's principal office by registered post or courier.
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Power to request
for information
Restriction on
disclosure of
information.
Service of Notices
(2) Any notice required or authorised to be served upon a body corporate
shall be deemed to have been duly served if it is served on a director of or the
Secretary to the body corporate.
(3) For the purposes of this section, the proper address of any person on
whom such a notice is to be served shall -
(a) in the case of a body corporate, be that of the registered or principal office
of the body corporate; and
(b) in any other case, be the last known address of the person.
22. A notice, summons or other document required or authorised to be served
upon the Authority under the provisions of this Act shall be served by
delivering same to the office of the Director-General of the Authority situate at
the Headquarters of the Authority.
PART VII-MISCELLANEOUS PROVISIONS
23. (1) The Authority, may subject to the Land Use Act, acquire any land for the
purpose of discharging its functions under this Act.
(2) If there is any hindrance in the acquisition of any land by the Authority
under this Act (including any failure by the Authority to reach an agreement as
to the amount to be paid in respect of the acquisition), the Authority may apply
to the Minister for a declaration under subsection (3) of this section.
(3) The Minister on receiving an application from the Authority and after such
enquiry as he may think fit, may request the Governor of the State in which the
land is situated to declare that the land is required for the service of the
Authority and accordingly for an over-riding public purpose.
(4) Where a declaration is made under subsection (3) of this section, the land
to which the declaration relates shall be deemed to be land required for the
public purpose of the Federation within the meaning of the Land Use Act and
the Authority shall acquire the land accordingly.
(5) Where a declaration has been made under subsection (3) of this section in
respect of any land and-
(a) the land has been acquired pursuant to subsection (4) of this section; or
(b) the Governor of the State where the land is situated is satisfied that there
are no rights subsisting in respect of the land; the Governor may vest the land
in the Authority by issuing a certificate of occupancy in respect thereof, in
favour and in the name of the Authority.
(6) The compensation, if any, payable under the Land Use Act for the
revocation of any rights relating to the land, where applicable, shall in the first
instance be paid by the Federal Government, but the Authority shall refund to
the Federal Government any compensation so paid and all incidental
expenses incurred by the Government.
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Service of
Documents
Power to Acquire
Land
27.
(7) A plan of any land referred to in subsection (2) of this section-
(a) containing measurements of the boundaries of the land;
(b) showing the relationship of the land to any sufficient identifying mark(s); and
(c) signed by a licensed surveyor and the Director- General
shall be sufficient description of the land for the purpose of an application under that subsection.
24. (1) Notwithstanding anything contained in any other law or enactment, no suit
shall lie against the Authority, a member of its Board, its DirectorGeneral, or
any other employee of the Authority for any act done in pursuance or
execution of any public duty under this Act or any law or enactment, or in
respect of any alleged neglect or default in the execution of any public duty
under this Act or such law or enactment, unless it is commenced within one
(1) year next after the act, neglect or default complained of, or in the case of a
continuance of damage or injury, within one (1) year after the ceasing thereof.
(2) No suit shall be commenced against the Authority, a member of its Board,
its Director-General or any employee of the Authority, before the expiration of
a period of one (1) month after written notice of intention to commence the suit
shall have been served upon the Authority by the intending plaintiff or his
agent; and the notice shall clearly and explicitly state the cause of action, the
particulars of the claim, the name and place of abode of the plaintiff and the
relief sought.
25. (1) In any action or suit against the Authority, no execution or attachment or
process in the nature thereof save a garnishee process shall be issued
against the Authority.
(2) Any sum of money, which may by the Judgment of any court be awarded
against the Authority, shall, subject to any direction given by a competent
court where notice of appeal of the said judgement has been given, be paid
from the fund of the Authority.
26. A member of the Board, the Director-General or employee of the Authority
shall be indemnified by the Authority against any civil proceeding brought
against him arising from the lawful discharge of any of the functions or the
exercise of any of the powers conferred on the Authority under this Act or any
other enactment.
PART VIII- INVESTIGATION AND ENFORCEMENT
(1) The Authority shall have power to carry out investigations into complaints,
and/or occurrence(s), save for accidents and serious incidents, after due
notice to the person(s) concerned.
(2) If the Authority is satisfied after such hearing that such person(s) is or are
violating any provisions of this Act, regulations, rules or orders, as the case
may be, it shall by order require the person(s) to take such action consistent
with the provision of this Act, regulations, rules or
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Limitation of Suits
Against the
Authority
Restriction on
execution against
property of the
Authority
Indemnification of
Officers
Power to
Investigate,
impose fines and
enforce
orders as may be necessary in the opinion of the Authority to prevent further
violation of the provisions of this Act, regulations, rules or orders.
(3) The Authority shall have power to take all steps reasonably necessary,
including the power to ground any aircraft and to seal the premises of any air
transport service provider or provider of allied aviation service, in order to
ensure compliance with the provisions of this Act and the regulations, rules
and orders made pursuant to it.
28. (1) The Minister may after consultation with the Authority give such
directions, not inconsistent with the provisions of this Act, to the Authority on
matters of policy: -
(a) in the interests of national security; or
(b) in connection with any matter appearing to him to affect the relations of
Nigeria with a country or territory outside Nigeria; or
(c) in order to discharge or facilitate the discharge of an obligation binding on
Nigeria by virtue of its being a member of an international organisation or a
party to an international agreement; or
(d) in order to obtain or facilitate the attainment of any other object of which is
in his opinion appropriate in view of the fact that Nigeria is a member of an
international organization or a party to an international agreement; or
(e) in order to enable Nigeria become a member of an international
organisation or a party to an international agreement.
(2) The Authority in the exercise of its functions and powers shall be guided by
such directions.
(3) The Authority shall furnish the Board with such information or facilities for
obtaining information with respect to its activities as the Minister may from
time to time require.
29. (1) There is hereby established an Accident Investigation Bureau hereinafter
referred to as the Bureau which shall be a body corporate with power to sue
and be sued in its corporate name except for matters associated with accident
reports and to acquire hold and dispose of property whether movable or
immovable.
(2)The Bureau shall be an autonomous agency reporting to the President
through the Minister.
(3)(a) The Bureau shall be headed by a Commissioner of Accident
Investigation who shall be appointed by the President on the recommendation
of the Minister.
(b) The Commissioner of Accident Investigation, who shall be the Chief
Executive Officer of the Bureau, shall be appointed for a period of four (4)
years renewable once for another period of four (4) years.
(4) The Commissioner of Accident Investigation shall possess cognate
experience and qualification in air accident investigation of not less than 12
years.
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Directions by the
Minister
Investigation of
Accidents/Accident
Investigation
Bureau
(5 There shall be established for the Bureau a fund into which shall paid and
credited:
(a) all subventions and budgetary allocation from the Government of the
Federation;
(b) 3% of the air ticket contract charter and cargo sales charge imposed in
Section 12 of this Act
(c) all sums accruing to the Bureau by way of gifts, endowments, bequests,
grants or other contributions by persons and Organisations;
(d) returns on investments;
(e)foreign aid and assistance; and
(f) all other sums which may, from time to time, accrue to the Bureau.
(6)The services of all persons currently employed in the Accident
Investigation and Prevention Bureau of the Ministry of Aviation are hereby
transferred to the Bureau.
(7)The Commissioner of Accident Investigation may with the approval of the
Minister recruit such staff as is necessary for the execution of its functions
under this Act.
(8)There shall be appointed for the Bureau a Legal Adviser who shall be a
Legal Practitioner of not less than 10 years post call experience.
(9)The Bureau in the execution of its functions under this Act shall follow and
adhere to the regulations for accident investigation made by the Minster.
(10) The Minister may make regulations providing for the investigation of any
accident or incident arising out of or in the course of air navigation and either
occurring in or over Nigeria or occurring to Nigerian aircraft elsewhere.
(11) Without prejudice to the generality of subsection (10) of this section, the
regulations made there under may in particular contain provisions:
(a) requiring notice to be given of any such accident or incident as aforesaid in
such manner and by such persons as may be prescribed;
(b) applying for the purpose of investigations held with respect to any such
accident or incident any of the provisions of any law in force in Nigeria relating
to the investigation of deaths or accidents;
(c) prohibiting, pending investigation, access to or interference with aircraft to
which an accident or incident has occurred and authorising any person, so far
as may be necessary for the purposes of an investigation, to have access to,
examine, remove, take measures for the preservation of, or otherwise deal
with, any such aircraft;
(d) authorising or requiring the cancellation, suspension, endorsement or
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surrender of any licence or certificate granted in Nigeria in pursuance of this
Act or any regulation, or the withdrawal or suspension of any validation
conferred in Nigeria of a licence granted by a competent authority elsewhere,
where it appears on investigation that the licence, certificate or validation
ought to be so dealt with, and requiring the production accordingly of any such
licence or certificate.
(e) incorporating the provisions of Annex 13 to the Convention on
International Civil Aviation,
(12) The sole objective of the investigation of an accident or serious incident
under this Act shall be the prevention of accidents and incidents. It shall not
be the purpose of such an investigation to apportion blame or liability.
(13) On the basis of the findings of accident investigations the Authority shall
be informed and the Director General shall take corrective actions that, in the
judgment of the Authority, will prevent similar accidents in the future.
(14) Notwithstanding the provisions of the Evidence Act CAP 112 LFN 1990,
the contents of an air accident investigation report made pursuant to the
provisions of this Act and regulations made there under, shall not be
admissible in evidence as to form the basis of liability in any criminal or civil
proceedings.
PART IX - THE AUTHORITY'S POWER TO REGULATE CIVIL AVIATION
30. (1) The Authority may by regulation make such provision as expedient:
(a) for carrying out the Convention on International Civil Aviation (in this section
referred to as "the Convention") concluded at Chicago on the 7th day of
December 1944, any Annex to the Convention which relates to international
standards and recommended practices and is adopted in accordance with the
Convention, and any amendment of the Convention or of any such Annex which
is made in accordance with the Convention;
(b) for carrying out any other treaty or agreement in the field of civil aviation to
which Nigeria is a party; and
(c) generally for regulating air navigation.
(2) Without prejudice to the generality of subsection (1) of this section, the
powers conferred therein shall include power to make regulations:
(a) for the registration of aircraft in Nigeria;
(b) for the prohibition of aircraft from flying unless certificates of airworthiness
issued or validated under the regulations are in force with respect to them and
except upon compliance with such conditions as to maintenance and repair
as may be prescribed;
(c) for the licensing, inspection and regulation of aerodromes, access to
aerodromes and places where aircraft have landed, for the inspection of
aircraft factories, and for prohibiting or regulating the use of aerodromes
16
Power to regulate air navigation
which are not licensed in pursuance to the regulations;
(d) for prohibiting persons from engaging in, or being employed in or in
connection with, air navigation in such capacities as may be prescribed
unless they satisfy the prescribed requirements, and for the licensing of
persons employed at aerodromes in the inspection, testing or supervision of
aircraft;
(e) as to the conditions under which, and in particular the aerodromes to or
from which, aircraft entering or leaving Nigeria may fly, and as to the
conditions, under which aircraft may fly from one part of Nigeria to another;
(f) as to the conditions under which passengers and goods may be carried by
air and under which aircraft may be used for other gainful purposes, and for
prohibiting the carriage by air of goods of such class or classes as may be
prescribed;
(g) for minimizing or preventing interference with the use or effectiveness of
apparatus used in connection with air navigation, and for prohibiting or
regulating the use of such apparatus and the display of signs and lights liable
to endanger aircraft;
(h) generally for securing the safety, efficiency and regularity of air navigation
and the safety of aircraft and of persons and property carried in aircraft, and
for preventing aircraft from endangering other persons and property;
(i) for requiring persons engaged in, or employed in or in connection with, air
navigation to supply meteorological information for the purposes of air
navigation;
ii) for regulating the making of signals and other communications by or to aircraft and persons carried in aircraft;
(k) for instituting and regulating the use of a civil air ensign and any other
ensign established by the Authority for purposes connected with air
navigation;
(I) for prohibiting aircraft from flying over such areas in Nigeria as may be prescribed.
(m) for applying the enactments relating to customs in relation to aerodromes
and to aircraft and to persons and property carried in aircraft;
(n) as to the manner and conditions of the issue, validation, renewal,
extension or variation of any certificate, licence or other document required by
the regulations (including the examinations and tests to be undergone), and
as to the form, custody, production, cancellation, suspension, endorsement
and surrender of any such document;
(O) for the registration of births and deaths occurring in aircraft and of particulars of persons missing from the aircraft;
(p) for regulating the charges that may be made in respect of air traffic
17
control and meteorological services and for the use of aerodromes licensed
under the regulations and for services provided at such aerodromes;
(q) for specifying the fees to be paid in respect of the issue, validation,
renewal, extension or variation of any certificate, licence or other document or
the undergoing of any examination or test required by virtue of the regulations
and in respect of any other matter in respect of which it appears to the
Authority to be expedient for the purposes of the regulations to charge fees;
(r) for exempting from the provisions of the regulations or any of them any
aircraft or persons or classes of aircrafts or persons; as to the conditions
under which noise and vibration may be caused by aircraft on aerodromes
provided that no action shall lie in respect of nuisance by reason only of the
noise and vibration caused by aircraft on an aerodrome so long as the
provisions of the regulations in force as respects aerodromes are complied
with;
(s) as to the circumstances and conditions under which it would be
permissible to use aircraft for aerial advertisement and for regulating
advertisements by air transport, aerodrome and air traffic control service
providers;
(t) regarding the design, construction and modification of aircraft and all other
matters connected with the design, construction and maintenance of aircraft;
and
(u) regarding security control and screening to which passengers and
baggage (whether accompanied or unaccompanied) would be subjected to
before boarding or being laid on an aircraft.
(3) The Authority shall have power to:-
(a) free and unobstructed access to all civil aviation personnel, aircraft,
aviation facilities, to inspect aircraft, aircraft manufacturers and maintenance
facilities or organisations, training facilities (including simulators), and other
appliances designed for use in air transportation, as may be necessary to
enable the Authority to determine the issuance or granting of a certificate of
registration or approval to such aircraft, aircraft manufacturer and
maintenance facility or organisation and other applicable appliances;
(b) issue, amend, vary, cancel, refuse and suspend approved maintenance
organisation certificates in conformity with regulations made under this Act;
(c) issue, amend, vary, cancel, refuse and suspend a production certificate;
(d) issue or validate type certificates and prescribe in such certificates, terms,
conditions and limitations as are required in the interest of safety;
(e) issue, renew or validate certificates of air worthiness in respect of an
aircraft, and specify in such certificates, the duration of such certificates, the
type of services for which the aircraft may be used and such other
18
terms, conditions or limitations as are required in the interest of safety;
(f) issue, amend, vary, cancel and suspend airworthiness approvals, licences
and certificates in conformity with regulations made under this Act;
(g) develop, issue and amend airworthiness directives, bulletins, orders,
terms and conditions to bring them into conformity with airworthiness
regulations;
(h) establish flight operations, airworthiness engineering and air worthiness
inspection organisations, necessary for the requirements of safety of air
navigation;
(i) establish a personnel licensing system to Licence aircraft maintenance
personnel, flight crew, air traffic controllers, flight operations officers and such
other persons engaged in the use or operation of aircraft, aircraft facilities,
aerodromes and other activities related, incidental or supplementary thereto,
in accordance with the provisions of this Act, regulations and the licensing
requirements specified in Annex 1 of the Chicago Convention;
j) specify, monitor and supervise the conditions under which an aircraft may carry passengers, mail and cargo or be used for other purposes, and prohibit
an aircraft from the carriage of such classes of goods as the Authority may
prescribe from time to time;
(k) certify/grant licences in respect of aerodromes and certify airways,
navigational approaches and landing aids in Nigeria to ensure safety of air
navigation;
(I) prohibit and regulate the installation of any structure, which by virtue of its
height or position is considered to endanger the safety of air navigation;
(m) institute and regulate the use of civil air ensign and other ensign established for purposes connected with air navigation in Nigeria;
(n) regulate the activities of air navigation service providers in accordance
with ICAO Standards and Recommended Practices and national laws;
(0) regulate and participate in aeronautical search and rescue operations;
(p) determine the need for commercial air transport operations.
(q) regulate the standards for the provisions of air traffic services and
prescribe air traffic regulations, rules or conditions on aircraft flights(including
safe altitudes) for the purpose of navigating, protecting and identifying
aircraft, protecting individuals and property on ground and preventing collision
between aircraft and land or water vehicles and between an aircraft and
airborne objects;
(r) regulate the standards for the provision of aeronautical meteorological services for the safe conduct of civil aviation operations;
19
(s) regulate the standards for the provision of civil aviation security in Nigeria.
(4) Notwithstanding the provisions of subsections (1) and (3) of this section,
the Authority shall have and exercise the powers generally to:
(a) regulate, supervise and monitor the activities of Nigerian and Foreign
carriers, travel and other aviation agents operating in Nigeria, and to keep a
register in respect thereof;
(b) require periodic statistical/financial and special returns and special reports
from any air carrier; prescribe the manner and form in which such reports or
returns shall be made, and require from any air carrier specific answers to
questions upon which it deems information may be necessary;
(c) prescribe the form of financial records and memoranda to be kept by air
carriers including accounts records and memoranda of the movement of
traffic and the receipt of and expenditure of money and length of time such
accounts, records and memoranda may be preserved;
(d) require every Nigerian and Foreign carrier to file and keep open for public
inspection, tariffs showing all rates, fares and charges charged by it, in such
form and manner as may be prescribed by the Authority from time to time, and
to approve or reject tariffs so filed which are inconsistent with approved rates
specified by the Authority under the provisions of this Act, regulations, rules
and orders made there under:
Provided that the rates, fares and charges shown in any tariff shall in the first
instance be denominated in local currency, without prejudice to these being
denominated in foreign currencies in the case of foreign carriers;
(e) require an air carrier to maintain reasonable and adequate rates of
compensation and other conditions of service for its employees so as to bring
them into conformity with prevailing labour practices in the industry;
(f) require a domestic air carrier to submit annually and at such other times as
it may deem fit, a list showing the names of its shareholders or any person
holding more than 5 per cent of the shares in the air carrier together with the
names of any person on whose behalf such shares are held;
(g) require every Nigerian carrier to file with it a true copy of every contract or
agreement affecting air transportation or any modification or cancellation
thereof, between the air carrier and any other air carrier or other bodies, for
leases, pooling or apportioning earnings, losses, traffic, service or equipment
or relating to establishment of transportation fares, charges or classifications,
or for preserving and improving safety, preventing or otherwise eliminating
destructive, oppressive or wasteful competition or for any other co-operative
working arrangement;
(h) disapprove of such contract or agreement described in paragraph (g)
above whether or not previously approved that is found to be adverse to
20
the public interest or to be in violation of the provisions of this Act, regulations,
rules and orders made by the Authority under this Act;
(i) investigate and determine upon its own initiative or upon receipt of a
complaint by any air carrier, air travel agent, consumer of air transport service
or other allied aviation service provider, whether any air carrier, air travel
agent or provider of any other allied aviation service has been or is engaged
in unfair or deceptive practices or unfair methods of competition in air
transportation, the sale of tickets thereof or in the provision of other allied
aviation service and order such air carrier, air travel agent or other allied
aviation service provider to desist from such practices or methods of
competition;
j) establish procedures for investigation and determination of requests or applications for special operating authorisations; such procedures may
include written notice to holders of air operator's certificates to make
submissions which may be heard orally in support of such application as will
not unduly delay the issuance of the special operating authorisation, taking
into consideration the degree or emergency involved;
(k) participate in and advise the Minister on technical matters including
Bilateral Air Services Agreements, and generally on activities of international
aviation organisations;
(I) set training standards for and approve air transport training institutions;
(m) institute programmes for the protection of consumer interests;
(n) specify the fees to be paid for the issue, validation, renewal, extension or
variation of any certificate, licence or other document issued pursuant to this
Act or the undergoing of any examination or test required which may be
expedient for the purpose of the regulation of fees charged;
(o) prescribe the minimum insurance cover to be taken out by any air operator
certificate holder, aerodrome operator or air traffic control service provider
taking into account, as the basis for such mini mum, the respective risk
involved in such operations;
(p) ensure that the extent of insurance cover undertaken by any holder shall
not be less than that prescribed by the Authority;
(q) fix and impose charges in respect of the grant of any Licence, permit,
certificate or other authorisation to any person under this Act or regulations
made pursuant thereto and in respect of the registration of aircrafts or
mortgages in respect thereof, approvals, consents and any other form of
benefit conferred on any person pursuant to this Act or the regulations made
pursuant thereto;
(r) conduct economic regulation of airlines, aerodromes, air navigation
services, other aviation and allied aviation service providers.
(s) The powers conferred upon the Authority under this section includes the
powers to develop, make, issue and revise regulations, rules, orders,
21
terms and conditions in respect of any matter relating, incidental, or
supplemental thereto, or such matter as the Authority may deem necessary in
the public interest and safety of air navigation.
(6) In the exercise of the powers conferred upon it and the discharge of its
functions in this Act, the Authority, subject to the provisions of section 29 in
this Act, shall not submit its decision for the approval of or be bound by the
decisions or recommendations of any person, body or organisation, but shall
be guided by safety, security and public interest considerations.
(7)(a) The powers conferred on and the functions of the Authority in this Act
are vested on the Director-General of the Authority who may exercise them
directly or through the Directors in charge of the under listed Directorates:
(i) Air Worthiness Standards;
(ii) Air Transport Regulation;
(iii) Operations and Training Standards;
(iv) Aerodrome and Airspace Standards;
(v) Licensing Standards;
(vi) Aeromedical Standards;
(vii) Legal;
(viii) Finance and Accounts;
(ix) Administration and Corporate Affairs; or other staff of the
Authority.
(b) The Director General shall establish the credentials of the Safety
Inspectors of the Authority.
(8) The Director General may delegate any assigned powers and duties to
any properly qualified private person, subject to such regulation, supervision
and review as may be prescribed by the Authority. However, the Director
General shall ensure that such functions are not delegated in such a way that
aircraft operators, airport operators, aerial work service providers, general
aviation operators and maintenance facility operators, in effect, regulate
themselves.
(9) Regulations made under this section shall provide for the imposition of
penalties for offences against the regulations, including the suspension or
revocation of certificates, Licences and authorisations, and in the case of any
particular offence such fine as may from time to time be prescribed by
regulations made by the Authority and or imprisonment for a term not less
than six months, and, subject to Chapter IV of the Constitution of the Federal
Republic of Nigeria (which relates to fundamental rights), for the taking of
such steps (including the interception of aircraft) as may be prescribed as
respects aircraft flying over areas of Nigeria over which flying is prohibited by
the regulations.
22
(10) Regulations made under this section may make different provisions with
respect to different classes of aircraft, aerodromes, persons or property and
with respect to different circumstances but shall, so far as practicable, be so
framed as not to discriminate in like circumstances.
(11) In the exercise of its power to make regulations under this section, the
Authority shall consult with stakeholders including airlines, aerodrome
operators, air traffic control service providers, consumers and other relevant
bodies and organisations in the aviation industry.
PART X - FUNCTIONS OF THE AUTHORITY
31. The Authority shall be responsible for:
(a) the registration of any aircraft in Nigeria and issuance to the owner thereof, of a certificate of registration;
(b) the establishment and maintenance of a system or register for recording the title to or any interest in any aircraft registered in Nigeria;
(c) the prohibition of any Nigerian or foreign registered aircraft from operating
within the Nigerian airspace, unless a certificate of airworthiness in respect
thereof, is issued or validated under the regulations in force with respect to the
aircraft:
Provided that the foregoing prohibition shall not apply to aircraft undergoing
test flights or flights to places where prescribed maintenance or repairs are to
be carried out;
(d) the inspection and regulation of aerodromes, inspection of aircraft
factories and for the prohibition or regulation of the use of aerodromes which
are not licensed in pursuance of the regulations;
(e) the prohibition of any person from engaging in air navigation in any
capacity whatsoever unless the Authority determines that such a person
satisfies the requirements of this Act and the regulations made there under;
(f) ensuring the efficiency and regularity of air navigation and the safety of
aircraft, persons and property carried in aircraft and for preventing aircraft
from endangering persons and property;
(g) the prohibition of aircrafts from flying over such areas in Nigeria as may be prescribed;
(h) the issue, validation, renewal, extension or variation of any certificate,
licence or other document required by the regulations (including the
examinations tests to be undergone) and custody, and production,
cancellation, suspension, endorsement and surrender of any such document;
(i) the registration of births and deaths occurring in aircraft and of particulars of persons missing from aircraft; and
j) the collation and maintenance of a data bank of aviation and aircraft
23
Functions of the
Authority
accidents, incidents, and occurrences and promote accident prevention
programmes.
PART XI- CONTROL OF AIR TRANSPORT UNDERTAKING
32. Subject to the provisions of section 34 of this Act:
(1) no aircraft shall be used by any person in Nigeria for flying, while carrying
passengers or cargo for reward, on such journeys or classes of journeys
(whether beginning and ending at the same point or at different points) or for
such flying undertaking for the purpose of any trade or business, except under
the authority of and in accordance with a licence, permit, or other
authorization issued to him by the Authority.
(2) no aircraft shall be used by any person in Nigeria for any other purpose
save for military, police, customs, or immigration operations, except under the
authority of and in accordance with a licence, permit, or other authorisation
issued by the Authority.
(3) The Authority may by regulations prescribe the types of licences, permits,
certificates or other authorisation, which may be issued and the terms and
conditions upon which they may be issued.
(4) Nothing in this section shall restrict the right of a designated air transport
undertaking, having its principal place of business in any country outside
Nigeria, to provide transport for passengers, mail or cargo:
(a) in accordance with the terms of any agreement for the time being in force
between the government of the Federal Republic of Nigeria and the
government of that country or,
(b) in accordance with the terms of any permission granted by the Minister
pending the completion of the negotiations for such an agreement referred to
in paragraph (a) above.
(5) An application for the grant of a licence, permit, certificate or other
authorisation must be made in writing to the Authority and contain such
particulars with respect to such matters as the Authority may specify in a
notice published in the prescribed manner and where an application is made
for the grant of any such licence, permit, certificate or other authorization, the
Authority shall subject to subsection (6) of this section, either grant such
licence, permit, certificate or other authorisation to the applicant in the terms
requested in the application, or in those terms with such modifications as the
Authority thinks fit, or refuse to grant such licence, permit, certificate or other
authorisation.
(6) Where an application is made to the Authority and the Authority is satisfied
that the applicant has met and complied with all the requirements necessary
for the grant of a licence, permit, certificate or other authorisation, the
Authority shall give notice of such compliance by the applicant.
(7) Upon receipt of the notice aforesaid, the Authority may approve or
disapprove the grant of such licence, permit, certificate or other authorisation.
The Authority shall proceed to grant the said licence,
24
Licensing of air
transport
undertakings.
permit, certificate or other authorisation;
Provided that, the Authority shall not approve any applicant for the grant of a
licence, permit, certificate or other authorisation in respect of whom the
Authority has not given notice that such an applicant has met and complied
with all the requirements for the grant of such licence, permit, certificate or
other authorisation.
33. (1) Notwithstanding the provisions of Section 17 of the Nigerian Investment
Promotion Commission Act No 16, 1995, the Authority shall refuse to grant a
licence, permit, certificate or other authorisation in pursuance of an
application if it is not satisfied that-
(a) the applicant is-
i. a citizen of Nigeria, or
ii. being a company or a body corporate, is registered in Nigeria
and has its principal place of business within Nigeria, and is
controlled by Nigerian nationals
(b) the applicant is, having regard to:
i. his and his employees' experience in the field of aviation and his
and their past activities generally, and
ii. where the applicant is a body corporate, the experience in the
field of aviation and the past activities generally of the persons
appearing to the Authority to control that body, a fit person to
operate aircraft(s) under the authority of the licence, permit,
certificate or other authorisation which the Authority considers
should be granted to hi m in pursuance of the application; or
(c) the resources of the applicant and the financial arrangements made by hi
m are adequate for discharging his actual and potential obligations in respect
of the business activities in which he is engaged if any, and in which he may
be expected to engage if he is granted the licence, permit, certificate or other
authorisation which the Authority considers should be granted to him in
pursuance of the application.
(2) The provisions of subsection (1) of this section shall not apply to any
licence, permit, certificate or other authorisation needed by a person for the
purpose of operating an aircraft for private use only.
34. (1) It shall be the duty of the Authority to issue Air Operators Certificates and
all other certificates relating to the safety of air transport undertakings.
(2) The Authority shall by Regulation prescribe the mini mum safety standards
and all other relevant requirements for the grant, issuance, operation,
variation, and renewal of such certificates.
(3) The Authority shall by regulation, issue operation specifications that define
the approved terms, conditions and Iimitations of such operations.
25
Eligibility for
Licences Permits
etc.
Air Operators
Certificate (AOC)
and other Safety
certificates
(4) The Authority shall by Regulation prescribe conditions for the revocation,
suspension or other limitation of Air Operator Certificates.
35. (1) An application for the variation, suspension or revocation of a licence,
permit, certificate or other authorisation may be made to the Authority at any
time in such manner and by such person(s) as may be prescribed in writing by
the Authority.
(2) The Authority may at any time vary, suspend or revoke, a licence, permit,
certificate or other authorisation if it considers it appropriate to do so, whether
or not such an application with respect to the licence, permit, certificate or
authorisation has been made pursuant to subsection (1) of this section.
(3) The Authority may exercise its powers under subsection (2) hereof to
revoke, suspend or vary a licence, permit, certificate or authorisation
(whichever is appropriate in the circumstances) if it is not or is no longer
satisfied that-:
(a) the holder of the licence is, having regard to-
(i) his and his employees' experience in the field of aviation and his and their
past activities generally, and
(ii) where the holder of the licence is a body corporate, the experience in the
field of aviation and the past activities generally of the persons appearing to
the Authority to control that body, a fit person to operate air transport business
under the authority of the licence, permit, certificate or other authorisation; or
(b) the resources of the holder of the licence, permit, certificate or other
authorisation and the financial arrangements made by him are adequate for
discharging his actual and potential obligations in respect of the business
activities in which he is engaged;
(c) the holder of a licence, permit, certificate or other authorisation subject to
section 34(2) is a citizen, of Nigeria or such a company or body as mentioned
in clause (a)(ii) of sub-section (1) of section 34;
(4) The Authority may exercise its powers under subsection (2) hereof to
revoke, suspend or vary a licence, permit, certificate or authorisation
(whichever is appropriate in the circumstances) if it is not or is no longer
satisfied that the holder of a licence has not contravened any of the provisions
of this Act or any regulation made there under especially provisions and
regulations relating to safety and security or any provision or regulation the
breach of which constitutes an offence under this Act or such regulation.
(5) The provisions of subsections (2) and (3) conferring on the Authority
power to revoke, suspend or vary a licence, permit, certificate or other
authorisation shall be construed as conferring on the Authority power to
provide, by a notice in writing served in the prescribed manner on the holder
of the licence, permit, certificate or other authorisation that the licence, permit,
certificate or other authorisation shall not be effective during a period
specified in the notice.
26
Variation,
Suspension and
Revocation of
Licences, Permits
etc.
(6) The Authority may, while a licence, permit, certificate or other
authorisation is ineffective by virtue of such a notice, by a further notice in
writing served in the prescribed manner on the holder, provide that the
licence, permit, certificate or other authorisation shall be effective on and after
a date specified in the further notice, but the further notice shall not prejudice
the Authority's powers to suspend the licence, permit, certificate or other
authorisation again or to revoke or vary it.
36. (1) Where the Authority takes a decision refusing to grant, vary, suspend or
revoke a licence, permit, certificate or other authorisation, it shall be the duty
of the Authority subject to subsection (2) below, to furnish a statement of the
reasons for the decision to the applicant for the licence, permit, certificate or
other authorisation, or as the case may be, to the holder and to any other
person who in accordance with rules made pursuant to this Act has filed an
objection in the case or requested such a statement, provided that, no
statement of reasons need be furnished in pursuance of this subsection in a
case in which the decision is taken in pursuance of a request by the holder of
a licence, permit, certificate or other authorisation for the variation,
suspension or revocation of it.
(2) The Authority may refrain from furnishing a statement of reasons in
pursuance of sub-section (1) of this section, if it has reason to believe that it
might adversely affect the security interests of Nigeria or the relations of
Nigeria with any other country.
(3) The Authority may publish in such manner as it thinks fit particulars of, and
of its reasons for, any decision taken with respect to a licence, permit,
certificate or other authorisation or an application for such a licence, permit,
certificate or other authorisation.
(4) A person who, for the purpose of obtaining for hi mself or another person a
licence, permit, certificate or other authorisation or with regard to a variation
or the cancellation or suspension of a licence, permit, certificate or other
authorisation knowingly or recklessly furnishes to the Authority any
information which is false, shall be guilty of an offence and liable upon
conviction to imprisonment for a term of not less than 6 months or a fine of not
less than NSOO,OOO.OO (five hundred thousand naira) or both.
37. (1) The Authority shall perform its air transport licensing functions in the
manner which it considers best to ensure that Nigerian registered airlines
compete as effectively as possible with other airlines in providing air transport
services on international routes; and in performing those functions the
Authority shall also have regard to-
(a) any advice received from the Minister with respect to the likely outcome of
negotiations with the government of any other country or territory for the
purpose of securing any right required for the operation by an airline in Nigeria
of any air transport services outside Nigeria; and
(b) the need to secure the most effective use of aerodromes within Nigeria.
(2) In considering whether to grant a licence, permit, certificate or other
authorisation, it shall be the duty of the Authority to have regard to the
27
Supplementary
Provisions
Relating to
Licences, Permits
etc.
General duties in
relation to the
Licensing
functions of the
Authority
39.
42.
effect on existing air transport services provided by Nigerian registered
airlines, of authorising any new services the applicant proposes to provide
under the licence, permit, certificate or other authorisation.
(3) Where two or more applicants have applied for the same licence, permit,
certificate or other authorisation under which each proposes to provide similar
services, the Authority shall have regard in particular to any benefits which may
arise from enabling two or more airlines to provide the services in question.
PART XII - PROVISION OF AERODROMES, CONTROL OF LAND FOR
AVIATION PURPOSES ETC.
38. (1) The Minister may approve the establishment and development of aerodromes anywhere in Nigeria.
(2) Roads, approaches, apparatus, equipment, buildings and other
accommodations in connection to such aerodromes shall be maintained by
the owners in conformity with rules and regulations made under this Act.
A licence for an aerodrome shall not be granted to any person other than -
(a) a citizen of Nigeria; or
(b) the Federal Government, a State Government, a Local Government or any
company or corporation owned or controlled by either of the said
Governments; or
(c) a company or a corporation registered in Nigeria and having its principal place of business in Nigeria.
40. The Authority in exercising its functions in relation to the licensing of
aerodromes shall have regard to the need to minimize so far as practicable
any adverse effect the presence of such aerodrome(s) may have on the
environment.
41. Without prejudice to any power of an aerodrome operator to enter into an
agreement on such terms as he or it thinks fit, an aerodrome operator may, for
the purpose of encouraging the use of quieter aircraft and of diminishing
inconvenience from aircraft noise, fix his or its charges by reference, among
other things, to any fact or matter relating to -
(a) the amount of noise, vibration or emission caused by the aircraft in respect of which the charges are made; or
(b) the extent or nature of any inconvenience resulting from such noise, vibration or emission.
(1) No aerodrome operator shall permit his or its aerodrome to be used for
operation of air transport service unless he or it has the airport security
programme approved by the Authority.
28
Power of Minister
to approve
establishment of
aerodromes
Eligibility for an
Aerodrome
Licence
Duty of the
Authority to
consider
environmental
factors when
licensing
Aerodromes
Fixing by reference
to noise factors,
the charges for
using licensed
aerodromes
Requirement for
approval of
aerodrome
security
programme
46.
(2) It shall be the duty of the aerodrome operator, his or its representatives
and servants to comply with the provisions of the approved security
programme. Every breach of the provisions of the approved airport security
programme shall attract a fine of not less than N200, 000.00 (one hundred
thousand naira).
43. (1) No airline operator shall operate air transport service to, from and within
Nigeria unless he has a security programme approved by the Authority.
(2)(i) It shall be the duty of the airline operator, its representatives and
servants to comply with the provisions of the approved security programme.
(ii) It shall be the duty of the airline operator, its representatives and servants
to comply with the provisions of the approved security programme. Every
breach of the provisions of the approved airline security programme shall
attract a fine of not less than N200, 000.00 (two hundred thousand naira)
44. The Authority or any other person authorised by it by general or special order in writing in this behalf may -
(a) conduct surveys and inspections of security measures relating to
passengers and their cabin baggage, checked baggage, cargo and other
goods, access controls and aerodrome design;
45.
(b) conduct an exercise to check the professional efficiency of those
personnel responsible for implementing the aviation security procedures and
also to test the adequacy of security measures at any aerodrome in Nigeria.
(1) Every person entering an aerodrome and every person before proceeding
for boarding an aircraft and his hand baggage, if any, shall be liable to be
searched and shall permit to be searched by an aviation security officer or any
other person authorized in that behalf in writing by the Minister.
(2)(i) Baggage of every person boarding an aircraft and all unaccompanied
baggage shall be screened or subjected to prescribed security control before
they are placed on board or carried on an aircraft.
(ii) Baggage of every person boarding an aircraft and all unaccompanied
baggage shall be screened or subjected to prescribed security control before
they are placed on board or carried on an aircraft. Every breach of the
provisions of this Section shall attract a fine of not less than N50, 000.00 (fifty
thousand naira).
(1) If the Authority is satisfied, with respect to any building or structure in the
vicinity of an aerodrome to which this section applies, that in order to avoid
danger to aircraft flying in that vicinity in darkness or conditions of poor
visibility, provision ought to be made (whether by lighting or otherwise) for
giving to such aircraft warning of the presence of that building or structure, it
may by order direct (subject to any conditions specified in the order) the
operator of the aerodrome and any person acting under the operator's
instructions-
29
Requirement for
approval of airline
security
programme
Security Surveys,
Audits, Tests and
Inspections
Security check of
persons and
baggage
Obstructions near
Aerodromes
(a) to execute, install, maintain, operate, and as occasion requires repair and
alter, such works and apparatus as may be necessary for enabling such
warning to be given in the manner specified in the order, and
(b) so far as may be necessary for exercising any of the powers conferred by
the order, enter upon and pass over (with or without vehicles) any such land
as may be specified in the order:
Provided that, no such order shall be made in relation to any building or
structure if it appears to the Authority that there have been made, and are being
carried out, satisfactory arrangements for the giving of such warning as
aforesaid.
(2) The Authority shall, before making any such order as aforesaid cause to be
published, in such manner as it thinks best for informing persons concerned,
notice of the proposal to make the order and of the place where copies of the
draft order may be obtained free of charge, and take into consideration, any
representations with respect to the order which may within such period not
being less than 14 (Fourteen) days after the publication of the notice as may be
specified therein, be made to it by any person appearing to it to have an interest
in any land which would be affected by the order, and at the end of that period
the order may, subject to the provisions of this section, be made with such
modifications (if any) of the original draft as the Authority thinks proper.
(3) Every such order as aforesaid shall provide that-
(a) except in a case of emergency, no works shall be executed on any land in
pursuance of the order unless, at least 14 (fourteen) days previously, the
operator of the aerodrome to which the order relates has served in the manner
specified by the order on the occupier of that land, and on every other person
known by the operator to have an interest in the land, a written notice containing
such particulars of the nature of the proposed works, and the manner in which
and the time at which it is proposed to execute them, as may be specified by the
order,
(b) if within 14 (fourteen) days from the service of the said notice on any person
having such an interest, the operator of the aerodrome receives written
objection on the part of that person to the proposals contained in the notice,
then, except in so far as the objection is withdrawn, no steps shall be taken in
pursuance of the notice without the specific authority of the Authority, and
(c) the operator of the aerodrome to which the order relates to pay to any
person having an interest in any land affected by the order adequate
compensation for any loss or damage which that person may suffer in
consequence of the order; and for the purposes of this subsection any
expense reasonably incurred in connection with the lawful removal of any
apparatus installed in pursuance of such an order, and so much of any
expense incurred in connection with the repair, alteration, demolition or
removal of any bui Iding, structure or erection to which such an order relates
as is attributable to the operation of the order, shall be deemed to be loss or
damage suffered in consequence of the order.
(4) The ownership of anything shall not be taken to be affected by
30
47.
reason only that it is placed in, or affixed to, any land in pursuance of such an
order as aforesaid; and (subject to the provisions of the next following
subsection) so long as any such order in respect of an aerodrome is in force,
no person shall, except with the consent of the operator of the aerodrome,
wilfully interfere with any works or things which, to the knowledge of that
person, are works or things executed or placed in, on or over any land in
pursuance of the order.
(5) If any person contravenes the provision of subsection 4 of this section, he
shall be guilty of an offence and liable on conviction to imprisonment for a term
not less than 6 months or a fine not less than N100,000.00 or both; and any
person who willfully obstructs a person in the exercise of any of the powers
conferred by such an order as aforesaid shall be guilty of an offence and liable
on conviction to imprisonment for a term not less than 6 months or a fine not
less than N100,000.00 or both.
(6) Nothing in this section shall operate, in relation to any building or structure,
so as to restrict the doing of any work for the purpose of repairing, altering,
demolishing or removing the building or structure if-
(a) notice of the doing of the work is given as soon as may be to the operator of
the aerodrome; and
(b) the giving of warning of the presence of the building or structure in the
manner provided by any order under this section in force in relation thereto is
not interrupted.
(7) In this section -
(a) the expression "aerodrome to which this section applies" means-
(i) an aerodrome under the control of the Minister or of the
Minister of the government of the federation responsible
for defence, or
(ii) any premises which, in pursuance of regulations made
under section 8 of this Act are for the time being
licensed as an aerodrome, and
(b) the expression "operator of the aerodrome" means-
(i) in the case of such an aerodrome as is mentioned in sub-
paragraph (i) of paragraph (a) of this subsection, the person(s)
in charge of the aerodrome and
(ii) in any other case, the holder of the licence issued in respect of
the aerodrome in pursuance of this Act.
(1) Subject to sub-section (2) of this section, any person who trespasses on
any land forming part an aerodrome, or upon which navigational aids or any
ancillary facility is situated shall be guilty of an offence and liable on
conviction, to imprisonment for a term not less than 1 month or a fine of not
less than N1 00,000.00 or both.
(2) No person shall be liable under this section, unless it is proved that
31
Trespass on
Aerodromes etc.
at the material time, notices warning trespassers of their liability under this
section were posted, so as to be readily seen and read by members of the
public, in such position on or near the boundary of the aerodrome or land
upon which any navigational aid or ancillary facility is situated as appear to
the court to be proper.
PART XIII - SPECIAL PROVISIONS AS TO TRESPASS, NUISANCE,
SALVAGE AND PATENTS, ETC.
48. (1) The provisions contained in the Convention for the Unification of Carriers' Liability
Certain Rules Relating to International Carriage by Air signed at
Montreal on 28th May, 1999 set forth in Schedule II of this Act and as
amended from time to time, shall from the commencement of this Act
have force of law and apply to international carriage by air to and from
Nigeria, in relation to any carriage by air to which those rules apply,
irrespective of the nationality of the aircraft performing the carriage, and
shall, subject to the provisions of this Act, govern the rights and liabilities
of carriers, passengers, consignors, consignees and other persons.
(2) The provisions contained in the Convention for the Unification of Certain
Rules Relating to International Carriage by Air signed at Montreal on 28th
May, 1999 as has been modified and set out in Schedule III of this Act and as
amended from time to time, shall from commencement of this Act have force
of law and apply to non international carriage by air within Nigeria,
irrespective of the nationality of the aircraft performing the carriage, and shall,
subject to the provisions of this Act, govern the rights and liabilities of carriers,
passengers, consignors, consignees and other persons.
(3) In any case of aircraft accident resulting in death or Injury of passengers,
the carrier shall make advance payments of at least US $30,000 (thirty
thousand United States Dollars) within 30 (thirty) days from the date of such
accident, to the natural person or such natural persons who are entitled to
claim compensation in order to meet the immediate economic needs of such
persons. Such advance payments shall not constitute recognition of liability
and may be off set against any amounts subsequently paid as damages by
the carrier.
49. (1) No action shall lie in respect of trespass or nuisance by reason only of the
flight of an aircraft over any property at a height above the ground which,
having regard to wind, weather and all the circumstances of the case is
reasonable, or the ordinary incidents of such flight, so long as the flight over
such property duly complies with any regulations in force made in respect
thereto.
(2) Where injury, loss or damage is caused to any person or property on land
or water by an article or a person in or falling from an aircraft while in flight,
taking off or landing, then, without prejudice to the law relating to contributory
negligence, damages in respect of the injury, loss or damage shall be
recoverable without proof of negligence or intention or any other cause of
action, as if the injury, loss or damage had been caused by the wilful act,
neglect or default of the owner of the aircraft.
Provided that where the injury, loss or damage is caused as aforesaid in circumstances in which-
32
Actions in
Trespass,
Nuisance, and
Damage from
Aircraft
(a) damages are recoverable from the owner in respect of the injury, loss or
damage by virtue only of the foregoing provisions of this subsection; and
(b) a legal liability exists in some person other than the owner to pay damages
in respect of the injury, loss or damage;
the owner shall be entitled to be indemnified by that other person against any
claim in respect of the said injury, loss or damage.
(3) Where any aircraft has been bona fide demised, let or hired out to any
person by the owner thereof and no pi lot, commander, navigator or operative
member of the crew of the aircraft is in the employment of the owner, this
section shall have effect as though references to the owner here were
substituted for references to the person to whom the aircraft has been so
demised, let or hired out.
50. (1) Any services rendered in assisting, or in saving life from, or in saving the
cargo or apparel of, an aircraft in, on or over the sea or any tidal water, or on
or over the shores of the sea or any tidal water, shall be deemed to be salvage
services in all cases in which they would have been salvage services if they
had been rendered in relation to a vessel.
(2) Where salvage services are rendered by an aircraft to any property or
person, the owner of the aircraft shall be entitled to the same reward for those
services as he would have been entitled to if the aircraft had been a vessel.
(3) The provisions of subsections (1) and (2) of this section shall have effect,
notwithstanding that the aircraft concerned is a foreign aircraft and that the
services in question are rendered elsewhere than within the Ii mits of the
territorial waters of Nigeria.
(4) The Minister may by regulations direct that any provisions of any law for
the time being in force in Nigeria which relate to wreck, to salvage of life or
property or to the duty of rendering assistance to vessels in distress shall, with
such modifications and exceptions (if any) as may be prescribed, apply in
relation to aircraft as those provisions apply in relation to vessels.
(5) For the purposes of this section, any provisions of any law in force in
Nigeria, which relate to vessels laid by, or neglected as unfit for sea service
shall be deemed to be provisions relating to wreck.
Application to aircraft of law of Wreck and Salvage
(1) Any lawful entry into Nigeria or any lawful transit across Nigeria, with Patent Claims
or without landings, of an aircraft to which this sub-section applies, shall
not, entail any seizure or detention of the aircraft or any proceedings
against the owner or operator of the aircraft or any other interference
with the aircraft by or on behalf of any person in Nigeria on the ground
that the construction, mechanism, parts, accessories, or operation of the
aircraft is an infringement of any patent, design or model.
51.
(2) The importation into and storage in Nigeria of spare parts and spare
equipment for an aircraft to which this sub-section applies and the use and
installation thereof in the repair of such an aircraft, shall not, entail any seizure
or detention of the aircraft or of the spare parts or spare
33
53.
equipment or any proceedings against the owner or operator of the aircraft or
the owner of the spare parts or spare equipment or any other interference with
the aircraft by or on behalf of any person in Nigeria, on the ground that the
spare parts or spare equipment or their installation are or is an infringement of
any patent, design or model:
Provided that, this subsection shall not apply in relation to any spare parts or
spare equipment, which are sold or distributed in Nigeria or are, exported
from Nigeria for sale or distribution.
(3) Subsections (I) and (2) of this section applies to-
(a) any aircraft (other than an aircraft used in military, customs or police
services) registered in a country or territory in the case of which there is for
the time being in force a declaration made by the Minister, with, a view to the
fulfilment of the relevant provisions of the Convention mentioned in section
8(1 )(a) of this Act, that the benefits of those subsections extend to that
country or territory; and
(b) such other aircraft as the Minister may by order specify.
52. (1) Where it is alleged by any interested person that a foreign aircraft which is
not an aircraft to which section 54 of this Act applies and which is making a
passage through or over Nigeria, infringes in itself or part of it any invention,
design or model which is entitled to protection in Nigeria, it shall be lawful,
subject to and in accordance with any order made by the Minister, to detain
the aircraft until the owner of it deposits or secures in respect of the alleged
infringement a sum (hereafter in this section referred to as "the deposited
sum"); and thereupon the aircraft shall not, during the continuance of the
passage, be subject to any lien, arrest, detention or prohibition, whether by
order of a court or otherwise, on account of the alleged infringement.
(2) The deposited sum shall be such sum as may be agreed between the
parties interested or, in default of agreement, as may be fixed by the Minister;
and the payment of the deposited sum shall be made or secured to the
Minister in such manner as may be specified by orders made by the Minister.
(3) The deposited sum shall be dealt with by such tribunal and in accordance
with such procedure as may be prescribed by orders made by the Minister,
and the orders may provide generally for carrying the provisions of
subsections (1) and (2) of this section into effect.
(4) For the purposes of subsection (1) of this section, the expression "owner"
shall include the actual owner of an aircraft and any person claiming through
or under hi m, and the expression "passage" shall include all reasonable
landings and stoppages in the course of the passage.
Any regulation, rule or order made under or in pursuance of this Act in relation
to aircraft may, provide for the detention of aircraft to secure compliance with
the regulation, rule or order and may make such further provisions as appear
necessary or expedient for securing the detention.
34
Infringement of
Patent
Detention of
Aircraft
PART XIV - OFFENCES
54. (1) Any act done by any person on a Nigerian aircraft outside Nigeria Offences which, if it
had been done by him in any part of Nigeria would have constituted an offence under
the law in force in that part shall, for the purposes of any criminal proceedings in that
part of Nigeria against that person in respect of that act, be deemed to have been done by him in that part of Nigeria.
(2) Except with the consent of the Attorney General of the Federation, no
proceedings shall be instituted by virtue of the foregoing subsection against
any person.
(3) Where it is alleged that an offence under this Act or regulations made by
virtue of this Act has been committed, proceedings in respect of the offence
may be brought in any court in Nigeria, which would have had jurisdiction in
the matter if the offence had been committed in the part of Nigeria for which
the Court acts.
55. (1) Where an aircraft is flown in such a manner as to cause danger to Dangerous flying
any person or property in the aircraft, on land or water, the pilot or any other person in charge of the aircraft and the owner or any person having responsibility for safe navigation of the aircraft shall be liable on conviction to imprisonment for a term of not less than 2 years or a fine of not less than N1 ,000,000.00 (one million naira) or both.
(2) In any proceedings against the owner of an aircraft in respect of an alleged
offence under this section, it shall be a defence to prove that the act alleged to
constitute the offence was done without the fault, privity and consent of the
owner.
(3) In this section, "owner", in relation to an aircraft and an alleged offence,
includes any person by whom the aircraft is hired at the time of the alleged
offence.
56. (1) The provisions contained in the Convention for the Suppression of the
Unlawful Seizure of Aircrafts signed at the Hague on the 16th day of
December 1970 set forth in Schedule I to this Act and as amended from time
to time shall from the commencement of this Act have force of law in Nigeria.
Hijacking and
Interference
(2) Whosoever on board an aircraft either on ground or in flight unlawfully, by
force or threat of force, or by any other form of intimidation, seizes or
exercises control of that aircraft, commits the offence of hijacking of such
aircraft.
(3) Any person who attempts to commit any of the acts referred to in
sub-section (2) of this section in relation to any aircraft, or is an accomplice to
the commission of any such act, shall also be deemed to have committed the
offence of hijacking of such aircraft.
(4) Any person who commits the offence of hijacking shall be liable on
conviction to imprisonment for life and also to a fine of not less than
N10,000,000.00 (ten million naira).
(5) Any person who in the course of committing the offence of hijacking
35
of an aircraft, commits, in connection with such offence, any act of violence
against any passenger or member of the crew of such aircraft, shall be liable
to the same punishment with which he would have been liable under any law
for the time being in force in Nigeria if such act had been committed in Nigeria.
(6) The Courts of the Federal Republic of Nigeria shall have jurisdiction to try
offenders under this section where:
(a) the offence is committed on board an aircraft registered in Nigeria;
(b) the aircraft on board which the offence is committed lands in Nigeria with
the alleged offender(s) still on board;
(c) the offence is committed on board an aircraft leased without crew to a
lessee who has his principal place of business in Nigeria or if he has no
principal place of business, his permanent residence is in Nigeria; and
(d) the offence is committed on board a non-Nigerian registered aircraft whilst
such an aircraft is within the territory of the Federal Republic of Nigeria.
57. (1) Any person who unlawfully and intentionally-
(a) commits an act of violence against a person on board an aircraft in flight
which is likely to endanger the safety of such
aircraft; or
(b) communicates such information which he knows to be false so as to
endanger the safety of an aircraft in flight,
shall be guilty of an offence and shall be liable on conviction to imprisonment
for 5 years or a fine of not less than N2,000,000.00 (two million naira).
(2) Any person who unlawfully and intentionally-
(a) destroys an aircraft in service or causes damage to such aircraft in such a
manner as to render it incapable of flight or which is likely to
endanger its safety in flight; or
(b) places or causes to be placed on an aircraft in service by any means
whatsoever a device or substance which is likely to destroy that
aircraft or to cause damage to it which renders it incapable of flight or
to cause damage to it which is likely to endanger its safety in flight
shall be guilty of an offence and shall be liable on conviction to a maximum of
life imprisonment and his assets may be confiscated or to both.
(3) Whoever attempts to commit or abets the commission of any offence
under subsections (1) and (2) of this Section shall also be deemed to have
committed such offence and be liable on conviction to the
36
Offences of
endangering
safety, destroying
or damaging of an
aircraft in flight, etc.
punishment for such offence.
58. The Authority may by Regulations prohibit certain acts which constitute unruly
or indecent behaviour on board aircraft in or over Nigeria. Such regulations
may include appropriate criminal sanctions.
59. (1) Any person who, at any aerodrome, unlawfully and intentionally, uses any device, substance or weapon to-
(a) commit an act of violence which causes or is likely to cause grievous hurt of any person; or
(b) destroy or seriously damage any aircraft or facility at an aerodrome or disrupt any service at the aerodrome;
shall be guilty of an offence and liable on conviction to imprisonment for life or to a fine of not less than N10,000,000.00 (ten million naira).
(2) Any person who attempts to commit, or abets the commission of any
offence under sub-section (1) of this section shall also be deemed to have
committed such offence and shall be liable on conviction to the punishment
provided for such offence.
60. (1) Any person who unlawfully and intentionally destroys or damages air
navigation and meteorological facilities or interferes with their operation in
such a manner as is likely to endanger the safety of aircraft in flight shall be
guilty of an offence and liable on conviction to imprisonment for a term of not
less than 1 (one) year or to a fine of not less than N500,000.00(five hundred
thousand naira) or both.
(2) Any person who attempts to commit, or abets the commission of any
offence under sub-section (1) of this section shall also be deemed to have
committed such offence and shall be liable to the punishment provided for
that offence.
61. (1) Duty of Operators: It shall be the duty of each Operator to make or cause
to be made, such inspection, maintenance, overhaul, and or repair of all
equipment used in civil aviation and to ensure that the operations conducted
are in accordance with this Act and the regulations, Bye laws, directives and
orders of the Director General issued under this Act
(2) Duties of Air Operators. It shall be the duty of each holder of an air
operator certificate to ensure that the maintenance of aircraft and operations
of that air operator are conducted in the public interest and in accordance with
the requirements of this Act and the regulations, Bye laws, directives and
orders issued under this Act by the Director General.
(3) Duties of Airmen: It shall be the duty of each holder of an airman certificate
to observe and comply with the authority and limitations of that certificate, the
requirement of this Act and the regulations, Bye laws, directives and orders
issued under this Act.
(4) Duty of Persons Generally: It shall be the duty of every person performing
duties in civil aviation to observe and comply with the
37
Prohibition of unruly and
indecent conduct.
Offences at
Aerodromes
Destruction of, or
Damage to, Air Navigation and
other Facilities
Duties of Operators and
Personnel
requirements of this Act and the orders, rules, regulations and Bye laws
issued under this Act relating to their tasks.
(5) Dangerous Goods: It shall be the duty of every person who offers, or
accepts shipment of cargo, or baggage for civil air transport, whether
originating or arriving in international flights to or from Nigeria, or for flights
within Nigeria, to offer or accept such shipment of cargo, or baggage in
accordance with the provisions of Annex 18 to the Chicago Convention and
the ICAO Technical Instructions for the Safe Transport of Dangerous Goods
by Air or any regulations on Dangerous Goods made pursuant to this Act.
62. The Authority shall monitor and enforce compliance with the provisions of
Annex 18 to the Chicago Convention and the ICAO Technical Instructions for
the Safe Transport of Dangerous Goods by Air, and is authorised to submit
variations to the Technical Instructions on behalf of Nigeria where necessary.
63. (1) The Federal High Court shall have jurisdiction to try offences committed
under this Act, and to hear all other matters involving the Authority and its
obligations under any law.
(2) Without prejudice to the power of the Attorney General of the Federation in
Section 174 of the Constitution of the Federal Republic of Nigeria 1999, the
Authority shall with the consent of the Attorney General of the Federation
have power to initiate and undertake the prosecution, in its name, of any
person in respect of any offence created under the provisions of this Act or
any regulation, rule or order made pursuant to this Act.
PART XV - GENERAL
64. (1) The Authority in consultation with other relevant government agencies
may, make regulations for the prevention of danger arising to public health by
the introduction or spread of any infectious or contagious disease from aircraft
arriving at or being at any aerodrome and for the prevention of the
conveyance of infection or contagion by means of any aircraft leaving an
aerodrome.
(2) The Authority may, by regulation provide that a breach of any regulation
made pursuant to subsection (1) of this section shall be punishable with
imprisonment for a period not less than 1 month or a fine of not less N1
00,000.00 or both.
65. (1) If the Minister is satisfied that Nigeria or any part thereof is visited by or
threatened with an outbreak of any dangerous epidemic disease, and that the
ordinary provisions of the law for the time being in force are insufficient for the
prevention of danger arising to public health through the introduction or
spread of the disease by the agency of the aircraft, the Minister may take such
measures as deemed necessary to prevent such danger.
(2) In any such case the Minister may, without prejudice to the powers
conferred by section 61 of this Act, by notification in the Official Gazette, make
such temporary orders with respect to aircraft and persons travelling or things
carried therein and aerodromes as he deems
38
Transportation of
Dangerous Goods
by Air
Federal High Court
to try Offences
Power of Authority
to make rules for
Protecting Public
Health
Emergency
Powers for
Protecting Public
Health
necessary in the circumstances.
(3) Orders made under sub-section (2) shall not remain in force for more than
three months from the date of notification, provided that the Minister may, by
special order continue them in force for a further period or periods of not more
than three months.
(4) In making any order under this section, the Minister may direct that a
breach of it shall be punishable with imprisonment for a period not less than
one 1 year, or a fine not less than N500,000.00 or both.
66. (1) In time of war, whether actual or imminent or when a proclamation of
emergency under the Constitution is in force in the Federal Republic of
Nigeria or any part thereof, if the Minister is of the opinion that in the interest of
public safety or tranquility, the issue of all or any of the following orders is
expedient, he may by notification in the Official Gazette-
(a) cancel or suspend, either absolutely or subject to such conditions as he
may think fit to specify in the order, all or any licences, permits, certificates or
other authorisations issued under this Act;
(b) prohibit either absolutely or subject to such conditions as he may think fit
to specify in the order, or regulate in such manner as may be contained in the
order, the flight of all or any aircraft or class of aircraft over the whole or any
portion of Nigeria;
(c) prohibit, either absolutely or conditionally, or regulate the erection,
maintenance or use of any aerodrome, aircraft factory, flying - school or club,
or place where aircraft are manufactured, repaired or kept, or any class or
description thereof;
(d) direct that any aircraft or class of aircraft, or any aerodrome, aircraft
factory, flying school or club, or place where aircraft are manufactured,
repaired or kept, together with any machinery, plant, material or things used
for the operation, manufacture, repair or maintenance of aircraft shall be
delivered, either forthwith or within a specified time, to such authority and in
such manner as he may specify in the order, to be at the disposal of the
Federal Government of Nigeria for the public service; or
(e) direct that any airline operator having its principal place of business in
Nigeria, or an aerodrome operator or a provider of air traffic and
meteorological services, and the employees of such air line operator,
aerodrome operator or provider of air traffic and meteorological services, shall
carry out flights, and other duties connected with operation of flights, in the
public interest in the manner specified in the order.
(2) Any order made under sub-section (1) of this section shall have effect,
notwithstanding anything inconsistent therewith contained in any regulation
made under this Act or any other statute in force in Nigeria.
(3) Any person who suffers direct injury or loss by reason of any order made
under paragraph (c), (d) or (e) of sub-section (1) of this section shall be paid
such compensation as may be determined by such authority or person as the
Minister may appoint in this behalf.
39
Power of Minister
to make orders in
emergency
(4) The Minister may, authorise such steps to be taken to secure compliance
with any order made under sub-section (1) as appear to him to be necessary.
(5) Any person who knowingly disobeys, or fails to comply with, or does any
act in contravention of an order made under sub-section (1) of this section,
shall be guilty of an offence and liable upon conviction to imprisonment for a
term not less than 6 months, or a fine not less than N100,000.00 (one
hundred thousand naira), or both, and the court by which he is convicted may
direct that the aircraft or thing, if any, in respect of which the offence has been
committed, or any part of such aircraft or thing, shall be forfeited to the
Federal Government.
67. (1) All services which facilitate and maintain the smooth, orderly and safe take
off, flight and handling of aircrafts and the, disembarkation and evacuation of
passengers and cargo respectively in all aerodromes in Nigeria are hereby
designated as essential services pursuant to the provisions of section 11 (I) of
the Constitution of the Federal Republic of Nigeria.
(2) The Minister may by regulations prohibit all or such class or classes of
workers, officers and other employees of persons whether corporate or
natural, engaged in the provision of the services specified in subsection (1) of
this section from taking part in a strike or other industrial action.
(3) In this section, "strike" means the cessation of work by a body of persons
employed, acting in combination or a concerted refusal or a refusal under a
common understanding of persons employed to continue to work for an
employer in consequence of a dispute, done as a means of compelling their
employer, or the Government of the Federation of Nigeria or any part thereof,
or to aid other workers in compelling their employer or any persons or body of
persons employed, to accept or not to accept terms of employment and
physical conditions of work or any government economic policy or pricing of
any essential product; and in this definition -
(a) "cessation of work" includes working at less than usual speed or with less
than usual efficiency without reasonable operational justification; and
(b) "refusal to continue to work" includes a refusal to work at usual speed or
with usual efficiency.
68. (1) The Authority may pursuant to Article 83 bis of the Convention on
International Civil Aviation and by a Bilateral Agreement with the Aeronautical
Authorities of another country exchange with that country all or part of their
respective functions and duties with respect to registered aircrafts under the
following articles of the conventions: Article 12 (rules of the air), Article 31
(certificates of airworthiness), or Article 32(a) (Licences of Personnel).
(2) The Authority relinquishes responsibility with respect to the functions and
duties transferred by the Authority as specified in the Bilateral agreement
under the articles listed in subsection (6) for Nigerian registered aircraft
described in subsection (6) (a) transferred abroad and
40
Designation of
Essential Services
Bilateral
Exchanges of
Safety Oversight
Responsibilities.
70.
accept responsibility with respect to the functions and duties under those
articles for aircraft registered abroad described in subsection (6) (b) that are
transferred to Nigeria.
(3) The Authority may predicate, in the Agreement, the transfer of functions
and duties under this subsection on any conditions the Authority deems
necessary and prudent, except that the Authority may not transfer
responsibilities for Nigerian registered aircraft described in subsection (6) (a)
to a country that the Authority determines is not in compliance with its
obligations under International Law for the safety oversight of Civil aviation.
(4) The Authority, pursuant to agreements entered into under this section,
may recognise certificates of airworthiness and personnel licenses issued or
renewed by the State of the operator.
(5) The Authority shall notify and inform the International Civil Aviation
organization and other States concerned with the transfer arrangement of the
existence of the agreement.
(6) In this section the term" registered aircraft" means -
(a) aircraft registered in Nigeria and operated pursuant to an agreement for
the lease, charter, or interchange of the aircraft or any similar arrangement by
an operator that has its principal place of business or, if it has no such place of
business, its permanent residence in another country; and
(b) aircraft registered in a foreign country and operated under an agreement
for the lease, charter, or interchange of the aircraft or any similar arrangement
by an operator that has its principal place of business or, if it has no such
place of business, its permanent residence in Nigeria.
69 .
(1) The Authority shall encourage regional cooperation in the regulation and administration of aviation safety.
(2) The Authority may, pursuant to subsection (1) of this section, enter into
agreements for cooperative endeavours in aviation safety with other regional
contracting States to the Convention on International Civil Aviation. The
Authority in conjunction with the Ministry in charge of civil aviation shall
negotiate, agree to and manage such regional cooperative agreements.
(3) The Authority may in the interest of public safety and the safety of civil
aviation, delegate certain aviation safety tasks under the cooperative
agreement to citizens of Nigeria and/or citizens of the other state party to the
agreement.
Regional
Cooperative
Aviation Safety
Agreements
(1) The Authority, subject to the approval of the Minister may, by Aviation regulation make such provisions as it deems necessary, to prohibit and Safeguards or discourage anti-competitive practices.
(2) Without prejudice to the generality of sub-section (1) of this section, such practices may include:
41
(a) charging fares and rates on routes at levels which are in aggregate,
insufficient to cover the costs of providing the services to which they relate;
(b) the addition of excessive capacity or frequency of service;
(c) practices which have a serious negative economic effect on, or cause significant damage to, another airline;
(d) practices which reflect an apparent intent or have the probable effect, of
crippling, excluding or driving another airline or allied aviation service provider
from the market; and
(e) any behaviour indicating an abuse of dominant position on a route or routes or in respect of any allied service.
71. (1) The Authority shall formulate schemes for suitable compensation of
passengers and other aviation and allied service consumers arising from
different forms of grievances.
(2) The regulations under sub-section (1) of this section shall be formulated
after holding consultations with air carriers and other stake holders.
72. (1) All persons engaged in the sale, distribution and provision of allied
services shall obtain such licence, permit or authorisation from the Authority
as may be specified.
(2) The Authority may make rules in this behalf, which may, inter alia, include:
(a) the categories including (but not Iimited) to aircraft equipment sale or
leasing operations, in-flight catering services, ground handling, amongst
others in which the licence may be granted;
(b) the information to be furnished by an applicant for the licence;
(c) the terms and conditions subject to which the licence may be granted; and
(d) the circumstances under which the licence may be suspended or revoked.
73. (1) The provisions of the Convention on the International Recognition of
Rights In Aircraft (Geneva Convention), 1948 set out in Schedule IV to this
Act, and as amended from time to time, shall from the commencement of this
Act have the force of law in Nigeria subject to subsection (2) of this section.
(2) The provisions of the Convention on International Interests in Mobile
Equipment 2001 and the Protocol to the Convention on International Interests
in Mobile Equipment on matters specific to aircraft equipment 2001 (The
Cape Town Convention and Protocol) set out in Schedule V (a) and (b)
respectively, shall from the commencement of this Act, have the force of law
in Nigeria.
42
Compensation
schemes for
passengers and
other allied
aviation services
consumers
Regulation of
Sale, Distribution
and Provision of
Allied Services.
Application of
certain
Conventions
Provided however, that the Minister of Aviation shall have power to from time
to time make Declarations required or permitted to be made under the
Convention and Protocol.
74. (I) Any carrier operating air transport services to, from or within Nigeria, Insurance
or aerodrome operator, aviation fuel supplier, or any provider of ground
handling services, meteorological services, air traffic control services,
aircraft maintenance services, or provider of such other class of allied
service as the Authority may from time to time determine in writing shall
maintain adequate insurance covering its liability under this Act and also
its liability towards compensation for damages that may be sustained by
third parties for an amount to be specified in regulations made by the
Authority.
(2) Absence of such insurance shall be sufficient reason for refusal,
suspension or revocation of the permission to operate the air transport
service or services in question.
(3) Any person having a duty to maintain adequate insurance pursuant to the
provision of subsection (1) of this section shall make quarterly returns to the
Authority evidencing that such adequate insurance is maintained and that all
conditions necessary to create an obligation on the insurer to provide
indemnity in the event of a loss have for the time being been fulfilled.
(4) Any Carrier operating air transport services to, from or within Nigeria, or
aerodrome operator, aviation fuel supplier, or any provider of ground
services, air traffic control services, aircraft maintenance services, who
contravenes the provisions of subsections (1) and (3) of this section, shall be
guilty of an offence and liable on conviction to a fine of not less than Ten
million Naira and its Principal Officers shall be liable to imprisonment for a
term of not less than two years.
75. All funds accruing from or as a result of air services agreements entered into
by Nigeria whether multilateral or bilateral shall be paid to the Authority and
maintained in a separate account to be used solely for the development of
Civil Aviation in Nigeria in accordance with regulations made by the Minister
and appropriation by the National Assembly.
76. (1) The Minister may publish from ti me to time a statement of the policies of
the Government of the Federal Republic of Nigeria on civil aviation.
(2) If the Minister considers it appropriate to do so, he may by notice in writing,
require the Authority to publish a statement of the policy it intends to adopt
with respect to any particular matter in exercising the powers and performing
the functions conferred upon it under this Act and it shall be the duty of the
Authority to publish the statement required by such a notice.
(3) Before publishing any statement under this section, the Authority shall
consult such persons as appear to it to be representative respectively-
43
Air Services
Agreement
Periodic
Publication of
Aviation Policy.
(a) of the civil aviation industry of Nigeria; and
(b) of users of air transport services.
(4) The manner of publication of any statement under this section shall be as the Authority may determine.
77. (I) Subject to the provisions of subsection (2) of this section, the following enactments are hereby repealed:
(a) Carriage By Air (Colonies, Territories and other Trust Territories) Colonial Order 1953;
(b) Civil Aviation Act, Cap 51 LFN 1990;
(c) Civil Aviation (Amendment) Act, 1999; and
(d) Nigerian Civil Aviation Authority (Establishment) Act, No. 49 1999.
(2) All regulations, bye-laws, orders and subsidiary legislation made under the
Civil Aviation Act 1964(cap. 51 LFN 1990) shall continue to be in force until
new regulations, bye-laws, orders and subsidiary legislation are made
pursuant to this Act.
78. (1) In this Act, unless the context otherwise requires-
"Aerodrome" means a defined area of land on land or water (including any
buildings, installations, and equipment) intended to be used either wholly or in
part for the arrival, departure and surface movement of aircraft;
"Aircraft" means any machine that can derive support in the atmosphere from
reactions of the air other than reactions of the air against the earth's surface;
"Air navigation services" includes information, direction and other facilities
furnished, issued or provided in connection with the navigation or movement
of aircraft and the control of movement of vehicles in any part of an aerodrome
used for the movement of aircraft;
"Allied Aviation Business" includes aircraft equipment sale or leasing
operations, in-flight catering services, ground handling operations and other
businesses connected with or ancillary to civil aviation;
"Authority" means the Nigerian Civil Aviation Authority established by section 2(1) of this Act;
"Cargo" means any property carried on an aircraft other than mail stores and accompanied or mishandled baggage;
"Chicago Convention" means the Convention on International Civil Aviation
concluded at Chicago on the 7th December 1944, any Annex which relates to
international standards and recommended practices and is adopted in
accordance with the Convention and any amendment
44
Repeals and
Savings
provisions.
Definitions
of the Convention or of such Annex which is made in accordance with the
Convention;
"Civil Aviation Operations" includes Ground Handling operations, air
operations, aerodrome operations, Meteorological Services, Air traffic control
and provision of Navigational Aids, Catering and allied services.
"Director-General" means the Director General of the Authority;
"Flight" means a journey by air beginning from the moment when all the
external doors of an aircraft are closed following embarkation until the
moment when any such doors are opened for disembarkation. In the case of a
forced landing, the flight shall be deemed to continue until the competent
authorities take over the responsibility for the aircraft and for persons and
property on board.
"Foreign aircraft" means an aircraft other than a Nigerian registered aircraft;
"ICAO" means International Civil Aviation organization established under the
Convention on International Civil Aviation 1944.
"Licence" Includes Air Transport Licence (ATL), Air operators Permit (AOP),
Air travellers Organisers Licence (ATOL), Air Operators Certificate (AOC),
Certificates of Airworthiness, Certificate of Registration, Personnel Licences
and Ratings, Aerodrome licence, Aviation Training Organisations
Approvals/Certificates, Aircraft Maintenance Organisation
approvals/certificates and all other authorizations and approvals issued
pursuant to this Act.
"Mail" means dispatches of correspondence and other items tendered by and
intended for delivery to postal services in accordance with the rules of the
Universal Postal Union;
"Member" means a member of the Governing Board of the authority and
includes the Chairman;
"Minister" means the Minister of the government of the Federation
responsible for civil aviation;
"Nigerian aircraft" means an aircraft registered in Nigeria in pursuance of
regulations made under this Act;
"Premises" includes lands, plants, and ancillary works;
"Prescribed" means prescribed by regulations made under this Act;
"Regulations" in this Act is a reference to all subsidiary legislations made
pursuant to this Act; and
"Reward" in relation to a flight, includes any form of consideration received or
required to be received wholly or partly in connection with the flight
irrespective of the person by whom or to whom the consideration has been or
is to be given.
(2) Every other term shall have the same meaning as contained in the
45
Chicago Convention.
79. This Act may be cited as the Civil Aviation (Repeal and Re-Enactment) Short Title Act 2006.
46
SCHEDULE 1 Section 57(1)
Convention for the Suppression of Unlawful Seizure of Aircraft.
SCHEDULE II ............................................................ . Section 49(1)
Convention for the Unification of certain Rules Relating to International Carriage By Air (Montreal 1999).
SCEHDULE III .......................................................... . Section 49(2)
Modifications to the Convention for the Unification of Certain rules relating to International Carriage By Air.
SCHEDULE IV ........................................................ . Section 74(1)
Convention on International Recognition of Rights in Aircraft 1948
SCHEDULE V(a) ................................................. . Section 74(2)
Convention on International Interests in Mobile Equipment
SCEHDULE V(b) ............................................... . Section 73(2)
Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Aircraft Equipment
SCHEDULE VI.......................................... Section 3(4) Supplementary provisions with respect
to the proceedings of the Board and other matters.
47
SCHEDULE 1 Section 55(1)
CONVENTION FOR THE SUPPRESSION OF UNLAWFUL SEIZURE OF AIRCRAFT.
1993
CONVENTION
For the Suppression of
Unlawful Seizure of Aircraft
Signed at the Hague on 16 th December 1970
Source: ICAO Doc. 8920
48
1993 HAGUE CONVENTION (1970) 201
Preamble
THE STATES PARTIES TO THIS CONVENTION
CONSIDERI NG that unlawful acts of seizure or exercise of control of aircraft in flight
jeopardize the safety of persons and property, seriously affects the operation of air services,
and undermi ne the confidence of the peoples of the world in the safety of civil aviation;
CONSIDERING that the occurrence of such acts is a matter of grave concern; CONSIDERI
NG that, for the purpose of deterring such acts, there is an urgent need to provide
appropriate measures for punishment of offenders;
HAVE AGREED AS FOLLOWS:
Article 1
Any person who on board an aircraft in flight:
unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises
control of, that aircraft, or attempts to perform any such act, or
is an accomplice of a person who performs or attempts to perform any such act commits an
offence (hereinafter referred to as "the offence").
Article 2
Each Contracting State undertakes to make the offence punishable by severe penalties.
Article 3
1. For the purposes of this Convention, an aircraft is considered to be in flight at any time
from the moment when all its external doors are closed following embarkation until the moment
when any such door is opened for disembarkation. In the case of a forced landing, the flight shall
be deemed to continue until the competent authorities take over the responsibility for the aircraft
and for persons and property on board.
2. This Convention shall not apply to aircraft used in military, customs or police
services.
3. This Convention shall apply only if the place of take-off or the place of actual landi ng
if the aircraft on board which the offence is committed is situated outside the territory of the State
of registration of that aircraft; it shall be immaterial whether the aircraft is engaged in an
international or domestic flight.
4. In the cases mentioned in Article 5, this Convention shall not apply if the place of
take-off and the place of actual landing of the aircraft on board which the offence is committed
are situated within the territory of the same State where that State is one of those referred to in
that Article.
5. Notwithstanding paragraph 3 and 4 of this Article, Articles 6, 7, 9, and 10 shall
49
apply whatever the place of take-off or the place of actual landing of the aircraft, if the offender or
the alleged offender is found in the territory of a state other than the state of registration of the
aircraft.
Article 4
1. Each Contracting State shall take such measures as may be necessary to
establish its jurisdiction over the offence and any other act of violence against passengers or
crew committed by the alleged offender in connection with the offence, in the following cases;
(a) when the offence is committed on board an aircraft registered in that State;
(b) when the aircraft is onboard which the offence is committed lands in its
territory with the alleged offender still on board;
(c )when the offence is committed on board an aircraft leased without crew to a lessee
who has his principal place of business or, if the lessee has no such place of business,
his permanent residence, in that State.
2. Each contracting State shall likewise take such measures as may be
necessary to establish its jurisdiction over the offence in the case where the alleged offender is
present in its territory and it does not extradite him pursuant to Article 8 to any of the States
mentioned in paragraph 1 of this Article.
3. This convention does not exclude any criminal jurisdiction exercised in accordance with national law.
Article 5
The Contracting States which establish joint air transport operating organizations or
international operating agencies, which operate aircraft which are subject to joint or international
registration shall, by appropriate means, designate for each aircraft the State among them
which shall exercise the jurisdiction and have the attributes of the State of registration for the
purpose of this Convention and shall give notice thereof to the International Civil Aviation
Organization which shall communicate the notice to all States Parties to this Convention.
Article 6
1. Upon being satisfied that the circumstances so warrant, any Contracting State in the
territory of which the offender or the alleged offender is present, shall take him into custody or
take other measures to ensure his presence. The custody and other measures shall be as
provided in the law of that State but may only be continued for such time as is necessary enable
any criminal or extradition proceedings to be instituted.
2. Such State shall immediately make a preliminary enquiry into the fact.
3. Any person in custody pursuant to paragraph 1 of this Article shall be assisted in
communicating immediately with the nearest appropriate representative of the State of which he
is a notational.
4. When a State, pursuant to this Article, has taken a person into custody it shall
immediately notify the State of registration of the aircraft, the State mentioned in Article 4,
paragraph 1 (c), the State of nationality of detained person and, if it considers it advisable,
50
any other interested State of the fact that such person is in custody and of the preli minary
enquiry contemplated in paragraph 2 of this Article shall promptly report its findings to the said
State and shall indicate whether it intends to exercise jurisdiction.
Article 7
The Contracting State in the territory of which the alleged offender found shall, if it does
not extradite him, be obliged, without exception found whatsoever and whether or not the
offence was committed in its territory to submit the case to its competent authorities for the
purpose of prosecution. Those authorities shall take their decision in the same manner as in the
case of any ordinary offence of a serious nature under the law of that State.
Article 8
1. The offence shall be deemed to be included as an extraditable offence in any
extradition treaty existing between Contracting States. Contracting States undertake to include
the offence as an extraditable offence in every extradition treaty to be concluded between
them.
2. If a Contracting State which makes extradition conditional on the existence of a
treaty services a request for extradition from another Contracting State with which it has no
extradition treaty, it may at its option consider this Convention as the legal basis for extradition in
respect of the offence. Extradition shall be subject to the other conditions provided by the law of
the requested State.
3. Contracting States which do not make extradition conditional on the existence of a
treaty shall recognize the offence as an extraditable offence between themselves subject to the
conditions provided by the law of the requested State.
4. The offence shall be treated, for the purpose of extradition between
Contracting States, as if it had been committed not only in the place in which it occurred but also
in the territories of the States required to establish their jurisdiction in accordance with Article 4,
paragraph 1.
Article 9
1. When any of the acts mentioned in Article 1 (a) has occurred or is about to occur,
Contracting States shall take all appropriate measures to restore control of the aircraft to its
lawful commander or to preserve his control of the aircraft.
2. In the cases contemplated by the preceding paragraph, any Contracting State in
which the aircraft or its passengers or crew are present shall facilitate the continuation of the
journey of the passengers and crew as soon as practicable, and shall without delay return the
aircraft and its cargo to the persons lawfully entitled to possession.
Article 10
1. Contracting States shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offence and other acts mentioned in Article 4. The law of the State requested shall apply in all cases.
2. The provisions of paragraph 1 of this Article shall not affect obligations under any
other treaty bilateral or multilateral, which governs or will govern, in whole or in part,
51
mutual assistance in criminal matters.
Article 11
Each Contracting State shall in accordance with its national law report to the Council of
the International Civil Aviation Organization as promptly as possible any relevant information in
its possession concerning: the circumstances of the offence; the action taken pursuant to Article 9; the measures taken in relation to the offender or the alleged offender, and, in particular the results of any extradition proceedings or other legal proceedings.
Article 12
1. Any dispute between two or more Contracting States concerning the
interpretation or application of this convention which cannot be settled through negotiation, shall
at the request of one of them, be submitted to the Parties are unable to agree on the organization
or the arbitration, anyone of those Parties may refer the dispute to the International Court of
Justice by request in conformity with the Statute of the Court.
2. Each state may at the time of signature or ratification of this Convention or accession
thereto, declare that it does not consider itself bound by the preceding paragraph. The other
Contracting States shall not be bound by the preceding paragraph with respect to any
Contracting State having made such a reservation.
3. Any contracting State having made a reservation in accordance with the
preceding paragraph may at any time withdraw this reservation by notification to the
Depositary Governments.
Article 13
1. This Convention shall be open for signature at The Hague on 16 December 1970, by
the States participating in the International Conference on Air Law held at The Hague from 1 to
16 December 1970 (hereinafter referred to as the Hague Conference). After 31 December 1970,
the Convention shall be open to all States for signature in Moscow, London and Washington. Any
State which does not sign this Convention before its entry into force in accordance with
paragraph 3 of this Article may accede to it at any time.
2. This convention shall be subject to ratification by the signatory States.
Instruments of ratification and instruments of accession shall be deposited with Governments of
the Union of Soviet Socialist Republics, the United Kingdom of great Britain and Northern
Ireland, and the United States of America which are hereby designated the Depository
Governments.
3. This Convention shall enter into force thirty days following the date of the deposit of
instruments of ratification by ten States signatory to this Convention which participated in The
Hague Conference.
4. For other States, this Convention shall enter into force on the date of entry into force
of this Convention in accordance with paragraph 3 of this Article, or thirty days following the date
of deposit of their instruments of ratification or accession, whichever is later.
5. The Depository Governments shall promptly inform all signatory and acceding States
of the date of each signature, the date of deposit of each instrument of ratification or accession,
the date of entry into force of this convention, and other notices.
52
6. As soon as this Convention comes into force, it shall be registered by the Depositary
Governments pursuant to Article 102 of the Charter of the United Nations and pursuant to Article
83 of the Convention on International Civil Aviation (Chicago, 1994).
Article 14
1. Any Contracting State may denounce this Convention by written notification to the
Depositary Governments.
2. Denunciation shall take effect six months following the date on which notification is received by the Depositary Governments.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized
thereto by their Governments, have signed this Convention.
DONE at The Hague, this sixteenth day of December, one thousand nine hundred and
seventy, in three originals, each being drawn up in four authentic texts in the English, French,
Russian and Spanish languages.
53
SCHEDULE 11..................................................... Section 47(1) Convention for the
Unification of Certain Rules Relating to International Carriage by Air (Montreal 1999)
CONVENTION
FOR THE UNIFICATION OF CERTAIN RULES FOR
INTERNATIONAL CARRIAGE BY AIR
THE STATES PARTIES TO THIS CONVENTION
RECOGNIZING the significant contribution of the convention for the Unification of Certain Rules
Relating to International Carriage by Air signed in Warsaw on 12 October 1929, hereinafter
referred to as the "Warsaw Convention", and other related instruments to the harmonization of
private international air law;
RECOGNIZING the need to modernize and consolidate the Warsaw convention and
related instruments;
RECOGNIZING the importance of ensuring protection of the interests of consumers in
international carriage by air and the need for equitable compensation based on the principle of
restitution;
REAFFIRMING the desirability of an orderly development of international air transport operations and the smooth flow of passengers, baggage and cargo in accordance with the principles and objectives of the Convention on International Civil Aviation, done at Chicago on 7 December 194.
CONVINCED that collective State action for further harmonization and codification of certain
rules governing international carriage by air through a new convention is the most adequate
means of achieving an equitable balance of interests;
HAVE AGREED AS FOLLOWS:
Chapter 1
General Provisions
Article 1 - Scope of Application
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 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 trans shipment, are situated
either within the territories of two States Parties, or within the territory of a single State Party if
there is an agreed stopping place within the territory of another State, even if that State is not a
State party. Carriage between two points within the territory of a single State 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 carriers is deemed, for the
54
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.
4. This Convention applies also to carriage as set out in Chapter V, subject to the
terms contained therein.
Article 2 - Carriage Performed by State and Carriage of Postal Items
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. In the carriage of postal items, the carrier shall be liable only to the relevant postal
administration in accordance with the rules applicable to the relationship between the carriers
and the postal administrations.
3. Except as provided in paragraph 2 of this Article, the provisions of this Convention
shall not apply to the carriage of postal items.
Chapter II
Documentation and Duties if the Parties Relating to the Carriage of Passengers, Baggage and
Cargo
Article 3 - passengers and Baggage
1. In respect of carriage of passengers, an individual or collective document of
carriage shall be delivered containing;
(a) an indication of the places of departure and destination;
(b) if the places of departure and destination are within the territory of a single State Party,
one or more agreed stopping places being within the territory of another State, an
indication of at least one such stopping place.
2. Any other means which preserves the information indicated in paragraph 1 may be substituted
for the delivery of the document referred to in that paragraph. If any such other means is used,
the carrier shall offer to deliver to the passenger a written statement of the information so
preserved.
3. The carrier shall deliver to the passenger a baggage identification tag for each
piece of checked baggage.
4. The passenger shall be given written notice to the effect that where this Convention is
applicable it governs and may Iimit the liability of carriers in respect of death or injury and for
destruction or loss of, or damage to, baggage, and for delay.
5. Nom-compliance with the provisions of the foregoing paragraphs shall not affect the existence
or the validity of the contract of carriage, which shall nonetheless, be subject to the rules of this
Convention including those relating to limitation of liability.
55
Article 4 - Cargo
1. In respect of the carriage of cargo, an air waybill shall be delivered.
2. Any other means which preserves a record of the carriage to be performed may be substituted
for the delivery of an air waybill. If such other means are used, the carriage shall, if so requested
by the consignor, deliver to the consignor a cargo receipt permitting identification of the
consignment and access to the information contained in the record preserved by such other
means.
Article 5 - Contents of Air waybill or Cargo Receipt
The air waybill or the cargo receipt shall include:
(a an identification of the places of departure and destination;
(b) if the places of departure and destination are within the territory of a single State party,
one or more agreed stopping places being within the territory of another State, an
indication of at least one such stopping place; and
(c) an indication of the weight of the consignment.
Article 6 - Document Relating to the Nature of the Cargo
The consignor maybe required, if necessary to meet the formalities of customs, police and similar public authorities, to deliver a document indicating the nature of the cargo. This provision creates for the carrier no duty, obligation or liability resulting therefrom.
Article 7 - Description of Air Waybill
1. The air waybill shall be made out by the consignor in three original parts.
2. The first part shall be marked "for the carrier"; it shall be signed by the consignor. The second
part shall be marked "for the consignee" ; it shall be signed by the consignor and by the carrier.
The third part shall be signed by the carrier who shall hand it to the consignor after the cargo has
been accepted.
3. The signature of the carrier and that of the consignor maybe printed or stamped.
4. If, at the request of the consignor, the carrier makes out the air waybill, the carrier shall be
deemed, subject to proof to the contrary, to have done so on behalf of the consignor.
Article 8 - Documentation for Multiple Packages
When there is more than one package:
(a) the carrier of cargo has the right to require the consignor to make out separate air
way bills;
(b) the consignor has the right to require the carrier to deliver separate cargo receipts when
the other means referred to in paragraph 2 of Article 4 are used.
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Article 9 - Non-compliance with Documentary Requirements
Non-compliance with the provisions of Articles 4 to 8 shall not affect the existence or the validity
of the contract of carriage, which shall, nonetheless, be subject to the rules of this Convention
including those relating to limitation of liability.
Article 10- Responsibility for Particulars of Documentation
1. The consignor is responsible for the correctness of the particulars and statements
relating to the cargo inserted by it or on its behalf in the air waybill or furnished by it or on its
behalf to the carrier for insertion in the cargo receipt or for insertion in the record preserved by
the other means referred to in paragraph 2 of Article 4. The foregoing shall also apply where
the person acting on behalf of the consignor is also the agent of the carrier.
2. The consignor shall indemnify the carrier against all damage suffered by it, or by any other person to whom the carrier is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements furnished by the consignor or on its behalf.
3. Subject to the provisions of paragraphs 1 and 2 of this Article, the carrier shall indemnify the consignor against all damages suffered by it, or by any other person to whom the consignor is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements inserted by the carrier or on its behalf in the cargo receipt or in the record preserved
by the other means referred to in paragraph 2 of Article 4.
Article 11 - Evidentiary Value of Documentation
1. The air waybill or the cargo receipt is prima facie evidence of the conclusion of the contract, of the acceptance of the cargo and of the conditions of carriage mentioned therein.
2. Any statements in the air waybill or the cargo receipt relating to the weight, dimensions and packaging of the cargo, as well as those relating to the number of packages, are prima facie evidence of the facts stated; those relating to the quantity, volume and condition of the cargo do not constitute evidence against the carrier except so far as they both have been, and are stated in the air waybill or the cargo receipt to have been, checked by it in the presence of the consignor, or relate to the apparent condition of the cargo.
Article 12 - Right of Disposition of Cargo
1. Subject to its liability to carry out all its obligations under the contract of carriage, the consignor has the right to dispose of the cargo by withdrawing it at the airport of departure or destination, or by stopping it in the course of the journey on any landing, or by calling for it to be delivered at the place of destination or in the course of the journey to a person other than the consignee originally designated, or by requiring it to be returned to the airport of departure. The consignor must not exercise this right of disposition in such a way as to prejudice the carrier or other consignors and must reimburse any expenses occasioned by the exercise of this right.
2. If it is impossible to carry out the instructions of the consignor, the carrier must so
inform the consignor forthwith.
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3. If the carrier carries out the instructions of the consignor for the disposition of the
cargo without requiring the production of the part of the air waybill or the cargo receipt
delivered to the latter, the carrier will be liable, without prejudice to its right of recovery from
the consignor, for any damage which may be caused thereby to any person who is lawfully in
possession of that part of the air waybill or the cargo receipt.
4. The right conferred on the consignor ceases at the moment when that of the
consignee begins in accordance with Article 13. Nevertheless, if the consignee declines to
accept the cargo, or cannot be communicated with, the consignor resumes its right of
disposition.
Article 13 - Delivery of the Cargo
1. Except when the consignor has exercise its right under Article 12, the consignee is entitled, on
arrival of the cargo at the place of destination, to require the carrier to deliver the cargo to it, on
payment of the charges due and on complying with the conditions of carriage.
2. Unless it is otherwise agreed, it is the duty of the carrier to give notice to the
consignee as soon as the cargo arrives.
3. If the carrier admits the loss of the cargo, or if the cargo has not arrived at the expiration of
seven days after the date on which it ought to have arrived, the consignee is entitled to enforce
against the carrier the rights which flow from the contract of carriage.
Article 14 - Enforcement of the Rights of Consignor and Consignee
The consignor and the consignee can respectively enforce all the rights given to them by article
12 and 13, each in its own name, whether it is acting in its own interest or in the interest of
another, provided that it carries out the obligations imposed by the contract of carriage.
Article 15 - Relations of Consignor and Consignee or Mutual
Relations of Third Parties
1. Articles 12, 13 and 14 do not affect either the relations of the consignor and the
consignee with each other or the mutual relations of third parties whose rights are derived either
from the consignor or from the consignee.
2. The provisions of Articles 12, 13 and 14 can only be varied by express provisions
in the air waybill or the cargo receipt.
Article 16 - Formalities of Customs, Police or Other Public Authorities
1. The consignor must furnish such information and such documents as are
necessary to meet the formalities of customs, police and any other public authorities before the
cargo can be delivered to the consignee. The consignor is liable to the carrier for any damage
occasioned by the absence, insufficiency or irregularity of any such information or documents,
unless the damage is due to the fault of the carrier, its servants of agents.
2. The carrier is under no obligation to enquire into the correctness or sufficiency of
such information or documents.
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Chapter III
Liability of the Carrier and Extent of Compensation for Damage
Article 17 - Death and Injury of Passengers - Damage of Baggage
1. The carrier is liable for damage sustained in case of death or bodily injury of a passenger
upon condition only that the accident which caused the death or injury took place on board
the aircraft or in the course of any of the operations of embarking or disembarking.
2. The carrier is liable for damage sustained in case of destruction or loss of, or of damage to,
checked baggage upon condition only that the event which caused the destruction, loss or
damage took place on board the aircraft or during any period within which the checked baggage
was in the charge of the carrier. However, the carrier is not liable if and to the extent that the
damage resulted from the inherent defect, quality or vice of the baggage. In the case of
unchecked baggage, including personal items, the carrier is liable if the damage resulted from its
fault or that of its servants or agents.
3. If the carrier admits the loss of the checked baggage, or if the checked baggage has not
arrived at the expiration of the twenty -one days after the date on which it ought to have arrived,
the passenger is entitled to enforce against the carrier the rights which flow from the contract of
carriage.
4. Unless otherwise specified, in this Convention the term "baggage" means both
checked baggage and unchecked baggage.
Article 18 - Damage to Cargo
1. The carrier is liable for damage sustained in the event of the destruction or loss of, or damage
to cargo upon condition only that the event which caused the damage so sustained took place
during the carriage by air.
2. However, the carrier is not liable if and to the extent it proves that the destruction,
or loss of, or damage to, the cargo resulted from one or more of the following:
(a) inherent defect, quality or vice of that cargo;
(b) defective packing of that cargo performed by a person other than the
carrier or its servants or agents.
(c) an of war or an armed conflict.
(d) an act of public authority carried out in connection with the entry, exit or transit
of the cargo.
3. The carriage by air within the meaning of paragraph 1 of this Article comprises the
period during which the cargo is in the charge of the carrier.
4. The period of the carriage by air does not extend to any carriage by land, by sea or by inland
waterway performed outside an airport. If, however, such 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
59
result of an event which took place during the carriage by air. If a carrier, without the consent of
the consignor, substitutes carriage by another mode of transport for the whole or part of a
carriage intended by the agreement between the parties to be carriage by air, such carriage by
another mode of transport is deemed to be within the period of carriage by air.
Article 19 - Delay
The carrier is liable for damage occasioned by delay in the carriage by air of passengers,
baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay
if it proves that it and its servants and agents took all measures that could reasonably be
required to avoid the damage or that it was impossible for it or them to take such measures.
Article 20 - Extension
If the carrier proves that the damage was caused or contributed to by the negligence or other
wrongful act or omission of the person claiming compensation, or the person from whom he or
she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to
the claimant to the extent that such negligence or wrongful act or omission caused or
contributed to the damage. When by reason of death or injury of a passenger compensation is
claimed by a person other than the passenger, the carrier shall likewise be wholly or partly
exonerated from its liability to the extent that it proves that the damage was caused or
contributed to by the negligence or other wrongful act or commission of that passenger. This
Article applies to all the liability provisions in this Convention, including paragraph 1 of Article
21.
Article 21 - Compensation in Case of Death or Injury of Passengers
1. For damage arising under paragraph 1 of Article 17 not exceeding 100 000 Special Drawing
Rights for each passenger, the carrier shall not be able to exclude or limit its liability.
2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent
that they exceed for each passenger 100 000 Special Drawing Rights if the carrier proves that:
(a) such damage was not due to the negligence or other wrongful act or omission of the
carrier or its servants or agents; or
(b) such damage was solely due to the negligence or other wrongful act or omission of a
third party.
Article 22 - Limits of Liability in Relation to Delay, Baggage and Cargo
1. In the case of damage caused by delay as specified in Article 19 in the carriage of persons, the
liability of the carrier for each passenger is limited to 4 150 Special Drawing Rights.
2. In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or
delay is limited to 1 000 Special Drawing Rights for each passenger unless the passenger has
made, at the time when the checked baggage 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 it proves that the sum is greater than the
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passenger's actual interest in delivery at destination.
3. In the carriage of Cargo, the liability of the carrier in the case of destruction, loss, damage or
delay is limited to a sum of 17 Special Drawing Rights per kilogram, unless the 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 it proves
that the sum is greater than the consignor's actual interest in delivery at destination.
4. In the case of destruction, loss, damage or delay of part of the cargo, or of any object
contained therein, the weight to be taken into consideration in determini ng 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 destruction, loss, damage, or delay of a part of the cargo, or
of an object contained therein, affects the value of other packages covered by the same air
waybill, or the same receipt or, if they were not issued, by the same record preserved by the other
means referred to in paragraph 2 of Article 4, the total weight of such package or packages shall
also be taken into consideration in determining the limit of liability.
s. The foregoing 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 carrier, its 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 such servants or agent was acting within the scope of its employment.
6. The limits prescribed in Article 21 and 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, includi ng interest. 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 form the date of the occurrence causing the damage, or before the
commencement of the action, if that is later.
Article 23 - Conversion of Monetary Units
1. The sums mentioned in terms of Special Drawing Right in this Convention shall be deemed to
refer to the Special Drawing Right as defined by the International Monetary Fund. Conversion of
the sums into national currencies shall, in case of judicial proceedings, be made according to the
value of such currencies in terms of Special Drawing Right at the date of the judgment. The value
of a national currency, in terms of the Special Drawing Right, of a State Party which is a Member
of the International Monetary Fund, shall be calculated in accordance with the method of
valuation applied by the International Monetary Fund, in effect at the date of the judgment, for its
operations and transactions. The value of a national currency, in terms of the Special Drawing
Right, of a State Party which is not a Member of the International Monetary Fund, shall be
calculated in a manner determined by the State.
2. Nevertheless, those States which are not Members of the International Monetary Fund and
whose law does not permit the application of the provisions of paragraph 1 of this Article may at
the time of ratification or accession or at any time thereafter, declare that the limit of liability of the
carrier prescribed in Article 21 is fixed at a sum of 1 500 000 monetary units per passenger in judicial proceedings in their territories; 62 500 monetary
61
units per passenger with respect to paragraph 1 of Article 22; 15 000 monetary units per
passenger with respect to paragraph 2 of Article 22; and 250 monetary units per kilogram with
respect to paragraph 3 of Article 22. This monetary unit corresponds to sixty-five and a half
milligrammes of gold of millesimal fineness nine hundred. These sums may be converted into the
national currency concerned in round figures. The conversion of these sums into national
currency shall be made according to the law of the State concerned.
3. The calculation mentioned in the last sentence of paragraph 1 of this Article and
the conversion method mentioned in paragraph 2 of this Article shall be made in such manner as
to express in the national currency of the State Party as far as possible the same real value for
the amounts in Articles 21 and 22 as would result from the application of the first three sentences
of paragraph 1 of this Article. States Parties shall communicate to the depositary the manner of
calculation pursuant to paragraph 1 of this Article, or the result of the conversion in paragraph 2
of this Article as the case may be, when depositing an instrument of ratification, acceptance,
approval of or accession to this Convention and whenever there is a change in either.
Article 24 - Review of Limits
1. Without prejudice to the provisions of Article 25 of this Convention and subject to paragraph 2
below, the limits of liability prescribed in Articles 21, 22 and 23 shall be reviewed by the
Depositary at five-year intervals, the first such review to take place at the end of the fifth year
following the date of entry into force of this Convention, or if the Convention does not enter into
force within five years of the date it is first open for signature, within the first year of its entry into
force, by reference to an inflation factor which corresponds to the accumulated rate of inflation
since the previous revision or in the first instance since the date of entry into force of the
convention. The measure of the rate of inflation to be used in determining the inflation factor shall
be the weighted average of the annual rates of increase or decrease in the Consumer Price
Indices of the States whose currencies comprise the Special Drawing Right mentioned in
paragraph 1 of Article 23.
2. If the review referred to in the preceding paragraph concludes that the inflation factor has
exceeded 10 per cent, the Depositary shall notify States Parties of a revision of the Ii mits of
liability. Any such revision shall become effective six months after its notification to the States
Parties. If within three months after its notification to States Parties a majority of the States
Parties register their disapproval, the provision shall not become effective and the Depositary
shall refer the matter to a meeting of the States Parties. The Depositary shall immediately notify
all States Parties of the coming into force of any revision.
3. Notwithstanding paragraph 1 of this Article, the procedure referred to in paragraph 2 of this
Article shall be applied at any time provided that one-third of the States Parties express a desire
to that effect and upon condition that the inflation factor referred to in paragraph 1 has exceeded
30 percent since the previous revision. Subsequent reviews using the procedure described in
paragraph 1 of this Article will take place at five-year intervals starting at the end of the fifth year
following the date of the reviews under the present paragraph.
Article 25 - Stipulation on Limits
A carrier may stipulate that the contract of carriage shall be subject to higher Iimits of liability than
those provided for in this Convention or to no limits of liability whatsoever.
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Article 26 - Invalidity of Contractual Provisions
Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid
down in this 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.
Article 27 - Freedom to Contract
Nothing contained in this Convention shall prevent the carrier from refusing to enter into any
contract of carriage, from waiving any defences available under the Convention, or from laying
down conditions which do not conflict with the provisions of this Convention.
Article 28 - Advance Payments
In the case of aircraft accidents resulting in death or injury of passengers, the carrier shall, if
required by its national law, make advance payments without delay to a natural person or
persons who are entitled to claim compensation in order to meet the immediate economic needs
of such persons. Such advance payments shall not constitute a recognition of liability and may be
offset against any amounts subsequently paid as damages by the carrier.
Article 29 - Basis of Claims
In the carriage of passengers, baggage and cargo, any action for damages, however founded,
whether under this convention or in contract or in tort or otherwise, can only be brought subject to
the conditions and such limits of liability as are set out in this Convention without prejudice to the
question as to who are persons who have the right to bring suit and what are their respective
rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not
be recoverable.
Article 30 - Servants, Agents - Aggregation of Claims
1. If an action is brought against a servant or agent of the carrier arising out of damage to which
the Convention relates, such servant or agent, if they prove that they acted within the scope of
their employment, shall be entitled to avail themselves of the conditions and limits of liability
which the carrier itself is entitled to invoke under this Convention.
2. The aggregate of the amounts recoverable from the carrier, its servants and
agents, in that case, shall not exceed the said limits.
3. Save in respect of the carriage of cargo, the provisions of paragraph 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 recklessly and with knowledge that damage would probably
result.
Article 31- Timely Notice of Complaints
1. Receipt by the person entitled to delivery of checked 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 or with the record preserved by the other means referred to in
paragraph 2 of Article 3 and paragraph 2 of Article 4.
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
63
date of receipt in case of checked 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 or her disposal.
3. Every complaint must be made in writing and given or dispatched within the times
aforesaid.
4. If no complaint is made within the times aforesaid, no action shall lie against the
carrier, save in the case of fraud on its part.
Article 32 - Death of person Liable
In the case of the death of the person liable, an action for damages lies in accordance with the
items of this Convention against those legally representing his or her estate.
Article 33 - Jurisdiction
1. An action for damages must be brought, at the option of the Plaintiff, in the territory of one of
the States Parties, either before the court of the domicile of the carrier or of its principal place of
business, or where it has a place of business through which the contract has been made or
before the court at the place of destination.
2. In respect of damage resulting from the death or injury of a passenger, an action may be
brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a
State Party in which at the time of the accident the passenger has his or her principal and
permanent residence and to or from which the carrier operates services for the carriage of
passengers by air, either on its own aircraft, or on another carrier's aircraft pursuant to a
commercial agreement, and in which that carrier conducts its business of carriage of passengers
by air from premises leased or owned by the carrier itself or by another carrier with which it has a
commercial agreement.
3. For the purpose of paragraph 2,
(a) "commercial agreement" means an agreement, other than an agency
agreement, made between carriers and relating to the provision of their joint
services for carriage of passengers by air;
(b) "principal and permanent residence" means the one fixed and permanent
abode of the passenger at the time of the accident. The nationality of the
passenger shall not be the determining factor in this regard.
4. Questions of procedure shall be governed by the law of the court seised of the
case.
Article 34 - Arbitration
1. Subject to the provisions of this Article, the parties to the contract of carriage for cargo may
stipulate that any dispute relating to the liability of the carrier under this Convention shall be
settled by arbitration. Such agreement shall be in writing.
2. The arbitration proceedings shall, at the option of the claimant, take place within
one of the jurisdictions referred to in Article 33.
3. The arbitrator or arbitral tribunal shall apply the provisions of this Convention.
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4. The provisions of paragraphs 2 and 3 of this Article shall be deemed to be part of every
arbitration clause or agreement, and any term of such clause or agreement which is inconsistent
therewith shall be null and void.
Article 35 - Limitation of Actions
1. The right to damages shall be extinguished if an action is not brought within a period of 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 that period shall be determined by the law of the court seised of the case.
Article 36 - Successive Carriage
1. In the case of carriage to be performed by various successive carriers and falling within the
definition set out in paragraph 3 of Article 1, each carrier which accepts passengers, baggage or
cargo is subject to the rules set out in this Convention and is deemed to be one of the parties to
the contract of carriage in so far as the contract deals with that part of the carriage which is
performed under its supervision.
2. In the case of carriage of this nature, the passenger or any person entitled to compensation in
respect of him or her can take action only against the carrier which 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 further, each may take action against the carrier which 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.
Article 37 - Right of Resources against Third Parties
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 IV
Combined Carriage
Article 38 - Combined Carriage
1. In the case of combined carriage performed partly by air and partly by any other mode of
carriage, the provisions of this Convention shall, subject to paragraph 4 of Article 18, 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 carriage conditions relating to other modes of carriage, provided
that the provisions of this Convention are observed as regards the carriage by air.
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Chapter V
Carriage by Air Performed by a Person other than the Contracting Carrier
Article 39 -Contracting Carrier - Actual Carrier
The provisions of this Chapter apply when a person (hereinafter referred to as "the contracting
carrier") as a principal makes a contract of carriage governed by this Convention with a
passenger or consignor or with a person acting on behalf of the passenger or consignor, and
another person (hereinafter referred to as "the actual carrier") performs, by virtue of authority
from the contracting carrier, the whole or part of the carriage, but is not with respect to such part
a successive carrier within the meaning of this Convention. Such authority shall be presumed in
the absence of proof to the contrary.
Article 40- Respective Liability of Contracting and Actual Carriers
If an actual carrier performs the whole or part of carriage which, according to the contract referred
to in Article 39, is governed by this Convention, both the contracting carrier and the actual carrier
shall, except as otherwise provided in this Chapter, be subject to the rules of this Convention, the
former for the whole of the carriage contemplated in the contract, the latter solely for the carriage
which it performs.
Article 41 - Mutual Liability
1. The acts and omissions of the actual carrier and of its servants and agents acting within the
scope of their employment shall, in relation to the carriage performed by the actual carrier, be
deemed to be also those of the contracting carrier.
2. The acts and omissions of the contracting carrier and of its servants and agents acting within
the scope of their employment shall, in relation to the carriage performed by the actual carrier, be
deemed to be also those of the actual carrier. Nevertheless, no such act or omission shall subject
the actual carrier to liability exceeding the amounts referred to in Articles 21,22,23 and 24. Any
special agreement under which the contracting carrier assumes obligations not imposed by this
Convention or any waiver of rights or defences conferred by this Convention or any special
declaration of interest in delivery at destination contemplated in Article 22 shall not affect the
actual carrier unless agreed to by it.
Article 42 - Addressee of Complaints and Instructions
Any complaint to be made or instruction to be given under this Convention to the carrier shall
have the same effect whether addressed to the contracting carrier or to the actual carrier.
Nevertheless, instructions referred to in Article 12 shall only be effective if addressed to the
contracting carrier.
Article 43 - Servants and Agents
In relation to the carriage performed by the actual carrier, any servant or agent of that carrier or of
the contracting carrier shall, if they prove that they acted within the scope of their employment, be
entitled to avail themselves of the conditions and Iimits of liability which are applicable under this
Convention to the carrier whose servant or agent they are, unless it is proved that they acted in a
manner that prevents the Iimits of liability from being invoked in accordance with this Convention.
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Article 44 - Aggregation of Damages
In relation to the carriage performed by the actual carrier, the aggregate of the amounts
recoverable from that carrier and the contracting carrier, and from their servants and agents
acting within the scope of their employment, shall not exceed the highest amount which could be
awarded against either the contracting carrier or the actual carrier under this Convention, but
none of the persons mentioned shall be liable for a sum in excess of the limit applicable to that
person.
Article 45 - Addressee of Claims
In relation to the carriage performed by the actual carrier, an action for damages may be brought,
at the option of the Plaintiff, against that carrier or the contracting carrier, or against both together
or separately. If the action is brought against only one of those carriers, that carrier shall have the
right to require the other carrier to be joined in the proceedings, the procedure and effects being
governed by the law of the court seised of the case.
Article 46 - Additional Jurisdiction
Any action for damages contemplated in Article 45 must be brought, at the option of the Plaintiff,
in the territory of one of the State Parties, either before a court in which an action may be brought
against the contracting carrier, as provided in Article 33, or before the court having jurisdiction at
the place where the actual carrier has its domicile or its principal place of business.
Article 47 - Invalidity of Contractual Provisions
Any contractual provision tending to relieve the contracting carrier or the actual carrier of liability
under this Chapter or to fix a lower limit than that which is applicable according to this Chapter
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 Chapter.
Article 48 - Mutual Relations of Contracting and Actual Carriers
Except as provided in Article 45, nothing in this Chapter shall affect the rights and obligations of
the carriers between themselves, including any right of recourse or indemnification.
Chapter VI
Other Provisions
Article 49 - Mandatory Application
Any clause contained in the contract of carriage 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.
Article 50 - Insurance
States Parties shall require their carriers to maintain adequate insurance covering their liability
under this Convention. A carrier may be required by the State Party into which it operates to
furnish evidence that it maintains adequate insurance covering its liability under this Convention.
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Article 51 - Carriage Performed in Extraordinary Circumstances
The provisions of Articles 3 to 5, 7 and 8 relating to the documentation of carriage shall not apply
in the case of carriage performed in extraordinary circumstances outside the normal scope of a
carrier's business.
Article 52 - Definition of Days
The term "days" when used in this Convention means calendar days, not working days.
Chapter VII
Final Clauses
Article 53 - Signature, Ratification and Entry into Force
1. This Convention shall be open for signature in Montreal on 28 May 1999 by States
participating in the International Conference on Air Law held at Montreal from 10 to 28 May 1999.
After 28 May 1999, the Convention shall be open to all States for signature at the Headquarters
of the International Civil Aviation Organization in Montreal until it enters into force in accordance
with paragraph 6 of this Article.
2. This convention shall be open for signature by Regional Economic Integration Organisations.
For the purpose of this Convention, a "Regional Economic Integration Organisation" means any
organisation which is constituted by sovereign States of a given region which has competence in
respect of certain matters governed by this convention and has been duly authorised to sign and
to ratify, accept, approve or accede to this Convention. A reference to a "State Party" or "States
Parties" in this Convention, otherwise than in paragraph 2 of Article 1, paragraph 1 (b) of Article
3, paragraph (b) of Article 5, Article 23, 33, 46 and paragraph (b) of Article 57, applies equally to
a Regional Economic Integration Organisation. For the purpose of Article 24, the references to "a
majority of the States Parties" and "one-third of the States Parties" shall not apply to a Regional
Economic Integration Organisation.
3. This Convention shall be subject to ratification by States and by Regional Economic Integration Organisations which have signed it.
4. Any State or Regional Economic Integration Organisation which does not sign this Convention may accept, approve or accede to it at any time.
5. Instruments of ratification, acceptance, approval or accession shall be deposited with the
International Civil Aviation Organisation, which is hereby designated the Depositary.
6. This convention shall enter into force on the sixtieth day following the date of deposit of the
thirtieth instrument of ratification, acceptance, approval or accession with the Depositary
between the States which have deposited such instrument. An instrument deposited by a
Regional Economic International Organisation shall not be counted for the purpose of this
paragraph.
7. For other States and for other Regional Economic Integrations, this Convention shall take
effect sixty days following the date of deposit of the instrument of ratification, acceptance,
approval or accession.
8. The Depositary shall promptly notify all signatories and States Parties of;
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(a) each signature of this Convention and date thereof;
(b) each deposit of an instrument of ratification, acceptance, approval or accession
and date thereof;
(c) the date of entry into force of this Convention;
(d) the date of the coming into force of any revision of the limits of liability under this
Convention;
(e) any denunciation under Article 54.
Article 54 - Denunciation
1. Any State Party may denounce this Convention by written notification to the
Depositary.
2. Denunciation shall take effect one hundred and eighty days following the date on
which notification is received by the Depositary.
Article 55 - Relationship with over Warsaw Convention Instruments
This Convention shall prevail over any rules which apply to international carriage by air:
1. between States Parties to this Convention by virtue of those States commonly
being Party to
(a) the Convention for the Unification of Certain Rules Relating to International Carriage by
Air Signed at Warsaw on 12 October 1929 (hereinafter called the Warsaw Convention).
(b) the Protocol to Amend the Convention for the Unification of Certain Rules relating to
International Carriage by Air signed at Warsaw on 12 October 1929, Done at The Hague
on 28 September 1955 (hereinafter called The Hague Protocol);
(c) the Convention, supplementary to the Warsaw Convention, for the Unification of Certain
Rules Relating to International Carriage by Air Performed by a person Other than the
Contracting Carrier, signed at Guadalajara on 18 September 1961 (hereinafter called
the Guadalajara Convention).
(d) the Protocol to Amend the Convention for the Unification of Certain Rules Relating to
International Carriage by Air Signed at Warsaw on 12 October 1929 as Amended by the
Protocol Done at The Hague on 28 September 1955 signed at Guatemala City on 8
March 1971 (hereinafter called the Guatemala City Protocol);
(e) Additional Protocol Nos. 1 to 3 and Montreal Protocol No.4 to amend the Warsaw
Convention as amended by The Hague Protocol or the Warsaw Convention as
amended by both The Hague Protocol and the Guatemala City Protocol signed at
Montreal on 25 September 1975 (hereinafter called the Montreal Protocols); or
2. within the territory of any single State Party to this Convention by virtue of that State being
Party to one or more of the instruments referred to in sub-paragraphs (a) to (e) above.
69
Article 56 - States with more than one System of Law
1. If a State has two or more territorial units in which different systems of law are applicable in
relation to matters dealt with in this Convention, it may at the time of signature, ratification,
acceptance, approval or accession declare that this Convention shall extend to all its territorial
units or only to one or more of them of them and may notify this declaration by submitting another
declaration at any time.
2. Any such declaration shall be notified to the Depositary and shall state expressly
the territorial units to which the convention applies.
3. In relation to a State Party which has made such a declaration:
(a) references in Article 23 to "national currency" shall be construed as referring to
the currency of the relevant territorial unit of that State; and
(b) the reference in Article 28 to "national law" shall be construed as referring to the
law of the relevant territorial unit of that State.
Article 57 - Reservations
No reservation may be made to this convention except that a State Party may at any time declare
by a notification addressed to the Depositary that this Convention shall not apply to;
(a) international carriage by air performed and operated directly by that State Party
for non-commercial purposes in respect to its functions and duties as a
sovereign State; and /or
(b) the carriage of persons, cargo and baggage for its military authorities on aircraft
registered in or leased by that State Party, the whole capacity of which has
been reserved by or on behalf of such authorities.
IN WITNESS WHEREOF the undersigned plenipotentiaries, having been duly authorised, have
signed this Convention.
DONE at Montreal on the 28th day of May of the year one thousand nine hundred ninety-nine in the English, Arabic, Chinese, French, Russian and Spanish languages, all texts
being equally authentic. This Convention shall remain deposited in the archives of the
International Civil Aviation Organisation, and certified copies thereof shall be transmitted by the
Depositary to all States parties to this Convention, as well as to all States Parties to the
Warsaw Convention, The Hague protocol, the Guadalajara Convention, the Guatemala City
Protocol, and the Montreal Protocols.
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1.
2.
3.
SCHEDULE III ..................................... . SECTION 47 (2)
Modifications To the Convention for the Unification of Certain rules Relating to
International carriage By Air.
CHAPTER 1
General Provisions
Article 1 - Scope of Application
1. This Convention applies to all carriage of persons, baggage or cargo performed by
aircraft for reward within Nigeria. It applies equally to gratuitous carriage by aircraft
performed by an air transport undertaking
2. Carriage to be performed by several successive carriers 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.
3. This convention applies also to carriage as set out in Chapter V, subject to the terms
contained therein.
Article 2 - Carriage performed by State and Carriage of Postal Items
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. In the carriage of postal items, the carriage shall be liable only to the relevant postal
admi nistration in accordance with the rules applicable to the relationship between the
carriers and the postal administrations.
3. Except as provided in paragraph 2 of this Article, the provisions of this Convention shall
not apply to the carriage of postal items.
CHAPTER 11
Documentation and Duties of the Parties Relating to the Carriage
of passengers, Baggage and Cargo
Article 3 - Passengers and Baggage
In respect of carriage of passengers, an individual or collective document of carriage
shall be delivered containing an indication of the places of departure and destination.
Any other means which preserves the information indicated in paragraph 1 may be
substituted for the delivery of the document referred to in that paragraph. If any such
other means is used, the carrier shall offer to deliver to the passenger a written
statement of the information so preserved.
The carrier shall deliver to the passenger a baggage identification tag for each piece of checked baggage.
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4. The passenger shall be given written notice to the effect that where this Convention is
applicable it governs and may limit the liability of carriers in respect of death or injury
and for destruction or loss of, or damage to, baggage and for delay.
5. Non-compliance with the provisions of the foregoing paragraphs shall not affect the existence
or the validity of the contract of carriage, which shall nonetheless, be subject to the rules of this
convention including those relating to limitation of liability.
Article 4 - Cargo
1. In respect of the carriage of cargo, an air waybill shall be delivered.
2. Any other means which preserves a record of the carriage to be performed may be
substituted for the delivery of an air waybill. If such other means are used, the carrier
shall, if so requested by the consignor, deliver to the consignor a cargo receipt
permitting identification of the consignment and access to the information contained in
the record preserved by such other means.
Article 5 - Contents of Air Waybill of Cargo receipt
The air waybill or the cargo receipt shall include:
(a) an indication of the places of departure and destination;
(b) an indication of the weight of the consignment.
Article 6 - Document Relating to the Nature of the Cargo
The consignor may be required, if necessary to meet the formalities of customs, police, and
similar public authorities, to deliver a document indicating the nature of the cargo. This provision
creates for the carrier no duty, obligation or liability resulting therefrom.
Article 7 - Description of Air Waybill
1. The air waybill shall be made out by the consignor in three original parts.
2. The first part shall be marked "for the carrier"; it shall be signed by the consignor.
The second part shall be mark "for the consignee", it shall be signed by the consignor
and by the carrier. The third part shall be signed by the carrier who shall hand it to the
consignor after the cargo has been accepted.
3. The signature of the carrier and that of the consignor may be printed or stamped.
4. If, at the request of the consignor, the carrier makes out the air waybill, the carrier shall
be deemed, subject to proof to the contrary, to have done so on behalf of the consignor.
Article 8 - Documentation for Multiple Packages
When there is more than one package:
(a) the carrier of cargo has the right to require the consignor to make out separate air
waybills;
72
(b) the consignor has the right to require the carrier to deliver separate cargo receipt when
the other means referred to in paragraph 2 of Article 4 are used.
Article 9 - Non-compliance with Documentary Requirements
Non-compliance with the provisions of Article 4 to 8 shall not affect the existence or the validity of
the contract of carriage, which shall nonetheless, be subject to the rules of this Convention
including those relating to limitation of liability.
Article 10- Responsibility for Particulars of Documentation
1. The consignor is responsible for the correctness of the particulars and statements
relating to the cargo inserted by it or on its behalf in the air waybill or furnished by it or on
its behalf to the carrier for insertion in the cargo receipt or for insertion in the record
preserved by the other means referred to in paragraph 2 of Article 4. The foregoing shall
also apply where the person acting on behalf of the consignor is also the agent of the
carrier.
2. The consignor shall indemnify the carrier against all damage suffered by it, or by any
other person to whom the carrier is liable, by reason of the irregularity, incorrectness or
incompleteness of the particulars and statements furnished by the consignor or on its
behalf.
3. Subject to the provisions of paragraph 1 and 2 of this Article, the carrier shall indemnify
the consignor against all damages suffered by it, or by any other person to whom the
consignor is liable by reason of irregularity, incorrectness or incompleteness of the
particulars and statements inserted by the carrier on its behalf in the cargo receipt or in
the record preserved by the other means referred to in paragraph 2 or Article 4.
Article 11 - Evidentiary Value of Documentation
1. The air waybill or the cargo receipt is prima facie evidence of the conclusion of the
contract, of the acceptance of the cargo and of the conditions of carriage mentioned
therein.
2. Any statements in the air waybill or the cargo receipt relating to the weight, dimensions
and packaging of the cargo, as well as those relating to the number of packages, are
prima facie evidence of the facts stated; those relating to the quantity, volume and
condition of the cargo do not constitute evidence against the carrier except so far as
they both have been, and are stated in the air waybill or the cargo receipt to have been,
checked by it in the presence of the consignor, or relate to the apparent condition of the
cargo.
Article 12 - Right of Disposition of Cargo
1 .
Subject to its liability to carry out all its obligations under the contract of carriage, the
consignor has the right to dispose of the cargo by withdrawing it at the airport of
departure or destination, or by stopping it in the course of the journey on any landing, or
by calling for it to be delivered at the place of destination or in the course of the journey to
a person other than the consignee originally designated, or by requiring it to be returned
to the airport of departure. The consignor must not exercise this right of disposition in
such a way as to prejudice the carrier or other consignors and must reimburse any
expenses occasioned by the exercise of this right.
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2. If it is impossible to carry out the instructions or the consignor, the carrier must so inform
the consignor forthwith.
3. If the carrier carries out the instructions of the consignor for the disposition of the cargo
without requiring the production of the part of air waybill or the cargo receipt delivered to
the latter, the carrier will be liable without prejudice to its right of recovery from the
consignor, for any damage which may be caused thereby to any person who is lawfully
in possession of that part of air waybill or the cargo receipt.
4. The right conferred on the consignor ceases at the moment when that of the consignor
begins in accordance with Article 13. Nevertheless, if the consignee declines to accept
the cargo, or cannot be communicated with the consignor resumes its right to
disposition.
Article 13 - Delivery of the Cargo
1. Except when the consignor has exercised its right under Article 12, the consignee is
entitled, on arrival of the cargo at the place of destination, to require the carrier to deliver
the cargo it, on payment of the charges due on complying with the conditions of
carriage.
2. Unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee
as soon as the cargo arrives.
3. If the carrier admits the loss of the cargo, or if the cargo has not arrived at the
expiration of two days after the date on which it ought to have arrived, the consignee
is entitled to enforce against the carrier the rights which flow from the contract of
carriage.
Article 14 - Enforcement of the Rights of Consignor and Consignee
The consignor and the consignee can respectively enforce all the rights given to them by Articles
12 and 13, each in its own name, whether it is acting in its own interest or in the interest of
another, provided that it carries out the obligations imposed by the contract of carriage.
Article 15 - Relations of Consignor and Consignee or Mutual Relations of Third parties
1. Articles 12, 13 and 14 do not affect either the relations of the consignor and the
consignee with each other or the mutual relations of third parties whose rights are
derived either form the consignor or from the consignee.
2. The provisions of Articles 12, 13, and 14 can only be varied by express provisions in the air waybill or the cargo receipt.
Article 16 - Formalities of Customs, Police or Other Public Authorities
1 .
The Consignor must furnish such information and such documents as are necessary to
meet the formalities of customs, police, and any other public authorities before the cargo
can be delivered to the consignee. The consignor is liable to the carrier for any damage
occasioned by the absence, insufficiency or irregularity of any such information or
documents, unless the damage is due to the fault of the carrier, its servants or agents.
74
2. The carrier is under no obligation to enquire into the correctness or sufficiency of such
information or documents.
CHAPTER III
Liability of the Carrier and Extent of Compensation for Damage
Article 17 - Death and Injury of Passengers - Damage to Baggage
1. The carrier is liable for damage sustained in case of death or bodily injury of a
passenger upon condition only that the accident which caused the death or injury took
place on board the aircraft or in the course of any of the operations of embarking or
disembarking.
The carrier is liable for damage sustained in case of destruction or loss of, or damage to checked
baggage upon condition only that the event which caused the destruction, or loss or
damage took place on board the aircraft or during any period within which the checked
baggage was in the charge of the carrier. However, the carrier is not liable if and to the
extent that the damage resulted from the inherent defect, quality or vice of the baggage.
In the case of unchecked baggage, including personal items, the carrier is liable if the
damage resulted from its fault or that of its servants or agents.
If the carrier admits the loss of the checked baggage, or if the checked baggage has not arrived
at the expiration of seven days after the date on which it ought to have arrived, the
passenger is entitled to enforce against the carrier the rights which flow from the
contract of carriage.
Unless otherwise specified, in this Convention the term "baggage" means both checked
baggage and unchecked baggage.
Article 18 - Damage of Cargo
The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to,
cargo upon condition only that the event which caused the damage so sustained took
place during the carriage by air.
However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or
damage to, the cargo resulted from one or more of the following;
inherent defect, quality or vice of that cargo;
defective packing of that cargo performed by a person other than the carrier or its servants or
agents;
an act of war or an armed conflict;
an act of public authority carried out in connection with the entry, exit or transit of the cargo.
The carriage by air within the meaning paragraph 1 of this Article comprises the period during
which the cargo is in the charge of the carrier.
The period of the carriage by air does not extend to any carriage by land, by sea or by
75
inland waterway performed outside and airport. If, however, such 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. If a
carrier, without consent of the consignor, substitutes carriage by another mode of
transport for the whole or part of a carriage intended by the agreement between the
parties to be carriage by air, such carriage by another mode of transport is deemed
to be within the period of carriage by air.
Article 19 - Delay
The carrier is liable for damage occasioned by delay in the carriage by air of passengers,
baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if
it proves that it and its servants and agents took all measures that could reasonably be required
to avoid the damage or that it was impossible for it or them to take such measures.
Article 20 - Exoneration
If the carrier proves that the damage was caused or contributed to by the negligence or other
wrongful act or omission of the person claiming compensation, or the person from which he or
she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the
claimant to the extent that such negligence or wrongful act or omission caused or contributed to
the damage. When by reason of death or injury of a passenger compensation is claimed by a
person other than the passenger, the carrier shall likewise be wholly or partly exonerated form its
liability to the extent that it proves that the damage was caused or contributed to by the
negligence or other wrongful act or omission of that passenger. This Article applies too all the
liability provisions on this Convention, including paragraph 1 of Article 21.
Article 21- Compensation in case of Death or Injury of Passengers
For damages arising under paragraph 1 of Article 17 not exceeding 100,000.00 United States
Dollars for each passenger, the carrier shall not be able to exclude or limit its liability.
The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent
that they exceed for each passenger 100,000 United States Dollars if the carrier proves
that:
Such damage was not due to the negligence or other wrongful act or omission of the carrier or its
servants or agents; or
Such damage was solely due to the negligence or other wrongful act or omission of a third party.
Article 22 - Limits of Liability in Relation to Delay, Baggage and Cargo
1. In the case of damage caused by delay as specified in Article 19 in the carriage of
persons, the liability of the carrier for each passenger is limited to 4150 United States
Dollars.
2. In the carriage of baggage, the liability of the carrier in the case of destruction, loss,
damage, or delay is limited to 1000 United States Dollars for each passenger unless the
passenger has made, at the time when the checked baggage was
76
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 it proves that the sum is
greater than the passenger's actual interest in delivery at destination.
3. In the carriage of cargo, the liability of the carrier in the case of destruction, loss,
damage or delay is limited to a sum of 20 United States Dollars per kilogram, unless the
consignor has made, at the time when the package was handed over to the carrier, a
special declaration of interest in delivery at a 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 it proves that the sum is greater than the
consignor's actual interest in delivery at destination.
4. In the case of destruction, loss, damage or delay of part of the 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 destruction, loss, damage of a part of the
cargo, or of an object contained therein, affects the value of other packages covered by
the same air waybill, or the same receipt or, if they were not issued, by the same record
preserved by the other means referred to in paragraph 2 of Article 4, the total weight of
such package or packages shall also be taken into consideration in determining the Iimit
of liability.
5. The foregoing provisions of paragraph 1 and 2 of this Article shall not apply if it is proved
that the damage resulted from an act or omission of the carrier, its 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 such servant or agent was acting within the scope of its
employment.
6. The limits prescribed in Article 21 and in this Article shall not prevent the court from
awarding, in accordance with its own rules of procedure in addition, the whole or part of
the court costs and of the other expenses of the litigation incurred by the Plaintiff,
including interest. The foregoing provision shall not apply if the amount of the damages
awarded, including 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 the occurrence causing the damage, of before the commencement of
the action, if that is later.
Article 23 - Conversion of Monetary Units
The sums mentioned in Articles 21 and 22 shall be converted to Naira at the existing official
exchange rate. Article 24 - Review of Limits
Without prejudice to the provisions of Article 25 of this Convention, the limits of liability prescribed in Articles 21, 22 and 23 shall be reviewed by the Minister of Aviation upon advice by the Nigerian Civil Aviation Authority at seven year intervals, the first such review to take place at the end of the seventh year following the date of entry into force of this Act.
Article 25 - Stipulation on Limits
A carrier may stipulate that the contract of carriage shall be subject to higher Iimits of liability than
those provided for in this Convention or to no limits of liability whatsoever.
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Article 26 - Invalidity of Contractual Provisions
Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid
down in this 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.
Article 27 - Freedom to Contract
Nothing contained in this Convention shall prevent the carrier from refusing to enter into any
contract of carriage, from waiving any defences available under the Convention, or from laying
down conditions which do not conflict with the provisions of this Convention.
Article 28 - Advance Payments
In the case of aircraft accidents resulting in death or injury of passengers, the carrier shall, make
advance payments without delay to a natural person or persons who are entitled to claim
compensation in order to meet the immediate economic needs of such persons. Such advance
payment amount shall not constitute a recognition of liability and may be offset against any
amounts subsequently paid as damages by the carrier.
Article 29 - Basis of Claims
In the carriage of passengers, baggage and cargo, any action for damages, however founded,
whether under this Convention or in contract or in tort or otherwise, can only be brought subject
to the conditions and such limits of liability as are set out in this Convention without prejudice to
the question as to who are the persons who have the right to bring suit and what are their
respective rights. In any such action, punitive, exemplary or any other non-compensatory
damages shall not be recoverable.
Article 30 - Servants, Agents - Aggregation of Claims
1. If an action is brought against a servant or agent of the carrier arising out of damage to
which the Convention relates, such servant or agent, if they prove that they acted within
the scope of their employment, shall be entitled to avail themselves of the conditions
and limits of liability which the carrier itself is entitled to invoke under this Convention.
2. The aggregate of the amounts recoverable from the carrier, its servants and agents, in
that case, shall not exceed the said limits.
3. Save in respect of the carriage of cargo, 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 31 - Timely Notice of Complaints
1 .
Receipt by the person entitled to delivery of checked 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 or with the record preserved by the
other means referred to in paragraph 2 of Article 3 and paragraph 2 of Article 4.
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 two days from the
date of receipt in the case of checked baggage and seven days from the
78
date of receipt in the case of cargo. In the case of delay, the complaint must be made at
the latest within fourteen days from the date on which the baggage or cargo have been
placed at his or her disposal.
Every complaint must be made in writing and given or dispatched within the times aforesaid.
If no complaint is made within the times aforesaid, no action shall lie against the carrier, save in
the case of fraud on its part.
Article 32 - Death of Person Liable
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 or her estate.
Article 33 - Arbitration
1. Subject to the provisions of this Article, the parties to the contract of carriage for cargo
may stipulate that any dispute relating to the liability of the carrier under this Convention
shall be settled by arbitration. Such agreement shall be in writing.
2. The arbitrator or arbitration tribunal shall apply the provisions of this Convention.
3. The provisions of paragraph 2 of this Article shall be deemed to be part of every
arbitration clause or agreement, and any term of such clause or agreement which is
inconsistent therewith shall be null and void.
Article 35 - Limitation of Actions
The right to damages shall be extinguished if an action is not brought within a period of 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.
Article 36 - Successive Carriage
1.ln the case of carriage to be performed by various successive carriers and
falling within the definition set out in paragraph 3 of Article 1, each carrier which accepts
passengers, baggage or cargo is subject to the rules set out in this Convention and is
deemed to be one of the parties to the contract of carriage in so far as the contract deals
with that part of the carriage which is performed under its supervision.
2. In the case of carriage of this nature, the passenger or any person entitled to
compensation in respect of him or her can take action only against the carrier which
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 the 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 which performed the carriage during which the destruction, loss,
damage or delay took place. These carriers will be jointly and severally liable to the
passengers or to the consignor or consignee.
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Article 37 - Right to Resources against Third Parties
Nothing in this Convention shall prejudice the question whether a person liable for damage in
accordance with its provisions has a right of resources against any other person.
Chapter IV
Article 38- Combined Carriage
1. In the case of combined carriage performed partly by air and partly by any other mode of
carriage, the provisions of this Convention shall, subject to paragraph 4 of Article 18,
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 documents of air carriage conditions relating to other modes of
carriage, provided that the provisions of this convention are observed as regards the
carriage by air.
CHAPTER V
Carriage by Air Performed by a Person other than the Contracting carrier
Article 3-Contracting Carrier - Actual Carrier
The provisions of this Chapter apply when a person (hereinafter referred to as "the contracting
carrier") as a principal makes a contract of carriage governed by this Convention with a
passenger or consignor or with a person acting on behalf of the passenger or consignor, and
another (hereinafter referred to as "the actual carrier") performs, by virtue of authority from the
contracting carrier, the whole or part of the carriage, but is not with respect to such part a
successive carrier within the meaning of this Convention. Such authority shall be presumed in
the absence of proof to the contrary.
Article 40 - Respective Liability of Contracting and Actual Carriers
If an actual carrier performs the whole or part of carriage which, according to the contract referred
to in Article 39, is governed by this Convention, both the contracting carrier and the actual shall,
except as otherwise provided in this chapter, be subject to the rules of this convention, the former
for the whole of the carriage contemplated in the contract, the latter solely for the carriage which
it performs.
Article 41- Mutual Liability
1. The acts and omissions of the actual carrier and of its servants and agents acting within
the scope of their employment shall, in relation to the carriage performed by the actual
carrier, be deemed to be also those of the contracting carrier.
2. The acts and omissions of the contracting carrier and of its servants and agents acting
within the scope of their employment shall, in relation the carriage performed by the
actual carrier, be deemed to be also those of the actual carrier. Nevertheless, no such
act or omission shall subject the actual carrier to liability exceeding the amounts referred
to in Articles 21, 22, 23 and 24. Any special agreement under which the contracting
carrier assumes obligations not imposed by this Convention or any waiver of rights or
defences conferred by this Convention or any special declaration of interest in delivery
at destination contemplated in Article 22 shall not affect the actual carrier unless agreed
to by it.
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Article 42 - Addressee of Complaints and Instructions
Any complaint to be made or instruction to be given under this Convention to the carrier shall
have the same effect whether addressed to the contracting carrier or to the actual carrier.
Nevertheless, instructions referred to in Article 12 shall only be effective if addressed to the
contracting carrier.
Article 43 - Servants and Agents
In relation to the carriage performed by the actual carrier, any servant or agent of that carrier or of
the contracting carrier shall, if they prove that they acted within the scope of their employment, be
entitled to avail themselves of the conditions and Iimits of liability which are applicable under this
Convention to the carrier whose servant or agent they are, unless it is proved that they acted in a
manner that prevents the Iimits of liability from being invoked in accordance with this Convention.
Article 44 - Aggregation of Damages
In relation to the carriage performed by the actual carrier, the aggregate of the amounts
recoverable from that carrier and the contracting carrier, and from their servants an agents acting
within the scope of their employment, shall not exceed the highest amount which could be
awarded against either the contracting carrier or the actual carrier under this Convention, but
none of the persons mentioned shall be liable for a sum in excess of the Ii mit applicable to that
person.
Article 45 - Addressee of Claims
In relation to the carriage performed by the actual carrier, an action for damages may be brought,
at the option of the Plaintiff, against that carrier or the contracting carrier; or against both together
or separately. If the action is brought against only one of those carriers, that carrier shall have the
right to require the other carrier to be joined in the proceedings, the procedure and effects being
governed by the law of the court seized of the case.
Article 46 - Invalidity of Contractual Provisions
Any contractual provision tending to relieve the contracting carrier or the actual carrier of liability
under this Chapter or to fix a lower limit than that which is applicable according to this Chapter
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 Chapter.
Article 47 - Mutual relations of Contracting and Actual Carriers
Except as provided in Article 45, nothing in this Chapter shall affect the rights and obligations of
the carriers between themselves, including any right of recourse or indemnification.
Chapter VI
Other Provisions
Article 48 - Mandatory Application
Any clause contained in the contract of carriage and all special agreements entered into before
the damage occurred by which the parties purport to infringe the rules laid down by
81
this Convention, whether by deciding the law to be applied, or by altering the rules as to
jurisdiction, shall be null and void.
Article 49 - Carriage Performed in Extraordinary Circumstances
The provisions of Article 3 to 5, 7 and 8 relating to the documents of carriage shall not apply in
the case of carriage performed in extra-ordinary circumstances outside the normal scope of a
carrier's business.
Article 50 - Definition of Days
The expression "days" when used in this convention means working days, not calendar days.
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SCHEDULE IV ......................................................... . Section 74(1)
Convention on International Recognition of Rights in Aircraft 1948
GENEVA CONVENTION
CONVENTION
on the international recognition
of rights in aircraft
Signed at Geneva, on 19 June 1948
83
WHEREAS the Internationals Civil Aviation Conference, held at Chicago in November -
December 1944, recommended the early adoption of a Convention dealing with the transfer of
title to aircraft,
WHEREAS it is highly desirable in the interest of the future expansion of international
civil aviation that rights in aircraft be recognized internationally,
THE UNDERSIGNED, duly authorised, HAVE AGREED, on behalf of their respective
Government, AS FOLLOWS:
ARTICLE 1
1. The Contracting States undertake to recognise: (a) rights of property in aircraft;
(b) rights to acquire aircraft by purchase coupled with possession of the
aircraft;
(c) rights to possession of aircraft under leases of six months or more;
(d) mortgages, hypotheques and similar rights in aircraft which are
contractually created as security for payment of an indebtedness; provided
that such rights
i. have been constituted in accordance with the law of the Contracting State in which the aircraft
was registered as to nationality at the time of their constitution, and
ii. are regularly recorded in a public record of the Contracting State
in which the aircraft is registered as to nationality.
The regularity of successive recordings in different Contracting States
shall be determined in accordance with the law of the state where the
aircraft was registered as to nationality at the time of each recording.
2. Nothing in this Convention shall prevent the recognition of any rights in aircraft under the
law of any Contracting State; but Contracting States shall not admit or recognise any
right as taking priority over the rights mentioned in paragraph 1 of this Article.
Article II
1. All recordings relating to a given aircraft must appear in the same record.
2. Except as otherwise provided in this Convention, the effects of the recording of any right
mentioned in Article 1, paragraph 1, with regard to third parties shall be determined
according to the law of the Contracting State where it is recorded.
3. A Contracting State may prohibit the recording of any right which cannot validly be
constituted according to its national law.
Article III
1. The address of the authority responsible for maintaining the record must be shown on every aircraft's certificate of registration as to nationality.
2. Any person shall be entitled to receive from the authority duly certified copies or extracts
of the particulars recorded. Such copies or extracts shall constitute prima facie evidence
of the contents of the record.
3. If the law of a Contracting State provides that the filing of a document for recording shall
have the same effect as the recording, it shall have the same
84
effect for the purposes of this Convention. In that case, adequate provision shall be
made to ensure that such document is open to the public.
4. Reasonable charges may be made for services performed by the authority maintaining
the record.
Article IV
1. In the event that any claims in respect of:
compensation due for salvage of the aircraft, or
extraordinary expenses indispensable for the preservation of the aircraft
give rise, under the law of the Contracting State where the operations of salvage or
preservation were terminated, to a right conferring a charge against the aircraft, such
right shall be recognised by Contracting States and shall take priority over all other
rights in the aircraft.
2. The rights enumerated in paragraph 1 shall be satisfied in the inverse order of the dates
of the incidents in connection with which they have arisen.
3. Any of the said rights may, within three months from the date of the termination of the
salvage or preservation operations, be noted on the record.
4. The said rights shall not be recognised in other Contracting States after expiration of the
three months mentioned in paragraph 3 unless, within this period,
(a) the right has been noted on the record in conformity with paragraph 3,
and
(b) the amount has been agreed upon or judicial action on the right has
been commenced. As far as judicial action is concerned, the law of the forum shall
determine the contingencies upon which the three months period may be interrupted or
suspended.
5. This Article shall apply notwithstanding the provisions of Article 1, paragraph 2.
Article V
The priority of a right mentioned in Article 1, paragraph 1 (d), extends to all sums thereby
secured. However, the amount of interest included shall not exceed that accrued during the three
years prior to the execution proceedings together with that accrued during the execution
proceedings.
Article VI
In case of attachment or sale of an aircraft in execution, or of any right therein, the Contracting
States shall not be obliged to recognise, as against the attaching or executing creditor or against
purchaser, any right mentioned in Article 1, or the transfer of any such right, if constituted or
effected with knowledge of the sale or execution proceedings by the person against whom the
proceedings are directed.
Article VII
1. The proceedings of a sale of an aircraft in execution shall be determined by the law of
the Contracting State where the sale takes place.
2. The following provisions shall however be observed:
85
(a) The date and place of the sale shall be fixed at least six weeks in advance.
(b) The executing creditor shall supply to the Court or other competent authority a
certified extract of the recordings concerning the aircraft. He shall give public
notice of sale at the place where the aircraft is registered as to nationality, in
accordance with the law there applicable, at least one month before the day
fixed, and shall concurrently notify by registered letter, if possible by air mail,
the recorded owner and the holders of recorded rights in the aircraft and of
rights noted on the record under Article IV, paragraph 3, according to their
addresses as shown on the record.
3. The consequences of failure to observe the requirements of paragraph 2 shall be as
provided by the law of the Contracting State where the sale takes place. However, any
sale taking place in contravention of the requirements of that paragraph may be
annulled upon demand made within six months from the date of the sale by any person
suffering damage as the result of such contravention.
4. No sale in execution can be effected unless all rights having priority over the claim of the
executing creditor in accordance with this Convention which are established before the
competent authority, are covered by the proceeds of sale or assumed by the purchaser.
5. When injury or damage is caused to persons or property on the surface of the
Contracting State where the execution sale takes place, by any aircraft subject to any
right referred to in article 1, held as security for an indebtedness, unless adequate and
effective insurance by a State or an insurance undertaking in any State has been
provided by or on behalf of the operator to cover such injury or damage, the national law
of such Contracting State may provide in case of the seizure of such aircraft or any other
aircraft owned by the same person and encumbered with any similar right held by the
same creditor:
(a) that the provisions of paragraph 4 above shall have no effect with regard to the
person suffering such injury or damage or his representative if he is an
executing creditor;
(b) that any right referred to in Article 1 held as security for an indebtedness
encumbering the aircraft may not be set up against any person suffering such
injury or damage or his representatives in excess of an amount equal to 80% of
the sale price.
In the absence of other limit established by the law of the Contracting State where the
execution sale takes place, the insurance shall be considered adequate within the
meaning of present paragraph if the amount of the insurance corresponds to the value
when new of the aircraft seized in execution.
6. Costs legally chargeable under the law of the Contracting State where the sale takes
place, which are incurred in the common interest of creditors in the course of execution
proceedings leading to sale, shall be paid out of the proceeds of sale before any claims,
including those given preference by Article IV.
Article VIII
Sale of an aircraft in execution in conformity with the provisions of Article VII shall effect
the transfer of the property in such aircraft free from all rights which are not assumed by
the purchaser.
86
Article IX
Except in a case of a sale in execution in conformity with the provisions of Articles VII, no transfer
of an aircraft from the nationality register or the record of a Contracting State to that of another
Contracting State shall be made unless, all holders of record rights have been satisfied or
consent to the transfer.
Article X
1. If a recorded right in an aircraft of the nature specified in Article 1, and held as security
for the payment of an indebtedness, extends, in conformity with the law of the
Contracting State where the aircraft is registered, to spare parts stored in a specified
place or places, such right shall be recognized by all Contracting States as long as the
spare parts remain in the place or places specified provided that an appropriate public
notice, specifying the description of the right, the name and address of the holder of this
right and the record in which such right is recorded, is exhibited at the place where the
spare parts are located, so as to give due notification to third parties that such spare
parts are encumbered.
2. A statement indicating the character and the approximate number of such spare parts
shall be annexed to or included in the recorded document. Such parts may be replaced
by similar parts without affecting the right of the creditor.
3. The provisions of Article VII, paragraph 1 and 4, and of Article VIII shall apply to a sale of
spare parts in execution. However, where the executing creditor is an unsecured
creditor, paragraph 4 of Article VII in its application to such a sale shall be construed so
as to permit the sale to take place if a bid is received in an amount not less than
two-thirds of the value of the spare parts as determined by experts appointed by the
authority responsible for the sale. Further in the distribution of the proceeds of sale, the
competent authority may, in order to provide for the claim of the executing creditor, limit
the amount payable to holders of prior rights to two thirds of such proceeds of sale after
payment of the costs referred to in Article VII, paragraph 6.
4. For the purpose of this Article, the term "spare parts" means part of aircraft, engines,
propellers, radio apparatus, instruments, appliances, furnishings, parts of any of the
foregoing, and generally any other articles of whatever description maintained for
installation in aircraft in substitution for parts or articles removed.
Article XI
1. The provisions of this Convention shall in each Contracting State apply to all aircraft
registered as to nationality in another Contracting State.
2. Each contracting State shall also apply to aircraft registered as to nationality:
(a) the provisions of Articles II, III, IX and
(b) the provisions of Article IV, unless the salvage or preservation operations have
been terminated within its own territory.
Article XII
Nothing in this Convention shall prejudice the right of any Contracting State to enforce against an aircraft its national laws relating to immigration, customs or air navigation.
87
1.
2.
3.
~
U
Article XIII
This convention shall not apply to aircraft used in military, customs or police services.
Article XIV
For the purpose of this Convention, the competent judicial and admi nistrative authorities of the
contracting States may, subject to any contrary provision in the national law, correspond directly
with each other.
Article XV
The contracting States shall take such measures as are necessary for the fulfilment of the
provisions of this convention and shall forthwith inform the Secretary General of the International
Civil Aviation Organisation of these measures.
Article XVI
For the purpose of this Convention the term "aircraft" shall include the airframe, engines,
propellers, radio apparatus and all other articles intended for use in the aircraft whether installed
therein or temporarily separated therefrom.
Article XVII
If a separate register of aircraft for purposes of nationality is maintained in any territory for whose
foreign relations a Contracting State is responsible, references in this Convention to the law of
the contracting State shall be constituted as reference to the law of that territory.
Article XVIII
This Convention shall remain open for signature until it comes into force in accordance with the provisions of Article XX.
Article XIX
This Convention shall be subject to ratification by the signatory States.
The instruments of ratification shall be deposited in the archives of the International Civil Aviation
Organisation, which shall give notice of the date of deposit to each of the signatory and
adhering States.
Article XX
As soon as two 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 second 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.
The International Civil Aviation Organisation shall give notice to each signatory State of the date on which this Convention comes into force.
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 Organisation.
88
Article XXI
1. This Convention shall, after it has come into force, be open for adherence by non-
signatory States.
2. Adherence shall be effected by the deposit of an instrument of adherence in the
archives of the International Civil Aviation Organisation, which shall give notice of the
date of the deposit to each signatory and adhering State.
3. Adherence shall take effect as from the ninetieth day after the date of the deposit of the
instrument of adherence in the archives of the International Civil Aviation Organisation.
Article XXII
1. Any Contracting State may denounce this Convention by notification of denunciation to
the International Civil Aviation Organisation, which shall give notice of the receipt of
such notification to each signatory and adhering State.
2. Denunciation shall take effect six months after the date of receipt by the International
Civil Aviation Organisation of the notification of denunciation.
Article XXIII
1. 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 anyone or more of the
territories for the foreign relations of which such State is responsible.
2. The International Civil Aviation Organisation shall give notice of any such declaration to
each signatory and adhering State.
3. With the exception of territories in respect of which a declaration has been made in
accordance with paragraph 1 of this Article, this Convention shall apply to all territories
for the foreign relations of which a Contracting State is responsible.
4. Any State may adhere to this Convention separately on behalf of all or any of the
territories regarding which it has made a declaration in accordance with paragraph 1 of
this Article and the provisions of paragraphs 2 and 3 of Article XXI shall apply to such
adherence.
5. Any Contracting State may denounce this Convention, in accordance with the
provisions of Article XXII, separately for all or any of the territories for the foreign
relations of which such State is responsible.
IN WITNESS WHEREOF the undersigned plenipotentiaries having been duly authorized, have signed this Convention.
DONE at Geneva, on the nineteenth day of the month of June of the year one thousand nine
hundred and forty-eight in the English, French and Spanish languages, each text being or equal
authenticity.
This Convention shall be deposited in the archives of the International Civil Aviation Organisation where, in accordance with Article XVIII, it shall remain open for signature.
89
SCHEDULE V (a) ................................................ . Section 74(2)
Convention on International Interests in Mobile Equipment
CONVENTION
ON INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT
THE STATES PARTIES TO THIS CONVENTION,
AWARE of the need to acquire and use mobile equipment of high value or particular economic
significance and to facilitate the financing of the acquisition and use of such equipment
in an efficient manner.
RECOGNISING the advantage of asset-based financing and leasing for this purpose and
desiring to facilitate these types of transaction by establishing clear rules to govern
them,
MINDFUL of the need to ensure that interest in such equipment are recognised and protected
universally,
DESIRING to provide broad and mutual economic benefits for all interested parties.
BELIEVING that such rules must reflect the principles underlying asset-based financing and
leasing and promote the autonomy of the parties necessary in these transactions.
CONSCIOUS of the need to establish a legal framework for international interests in such
equipment and for that purpose to create an international registration system for their
protection,
TAKING INTO CONSIDERATION the objective and principles enunciated in existing
Conventions relating to such equipment,
HAVE AGREED upon the following provisions:
Chapter 1
Sphere of application and general provisions
Article 1 - Definitions
In this convention, except where the context otherwise requires, the following items are
employed with the meaning set out below.;
(a) "agreement" means a security agreement, a title agreement or a leasing
agreement.
(b) "assignment" a contract which, whether by way of security or otherwise,
confers on the assignee associated rights with or without a transfer of the
related international interest,
90
(c) "associated rights" means all rights to payment or other performance by a
debtor under an agreement which are secured by or associated with the
object.;
(d) "commencement of the insolvency proceedings" means the time at which
the insolvency proceedings are deemed to commence under the
applicable insolvency law;
(e) "conditional buyer" means a buyer under a title reservation agreement;
(f) "conditional seller" means a seller under a title reservation agreement,
(g) "contract of sale" means a contract for the sale of an object by a seller to a
buyer which is not an agreement as defined in (a) above.
(h) "court" means a court of law or an admi nistrative or arbitral tribunal
established by a Contracting State;
(i) "creditor" means a court chargee under a security agreement, a conditional
seller under a title reservation agreement or a lessor under a leasing
agreement;
j) "debtor" means a chargor under a security agreement, a conditional buyer
under a title reservation agreement, a lessee under a leasing agreement or
a person whose interest in an object is burdened by a registrable
non-consensual right or interest;
(k) "insolvency administrator" means a person authorised to administer the
reorganisation or liquidation, including one authorised on an interim basis
and includes a debtor in possession if permitted by the applicable
insolvency law;
(I) "insolvency proceedings" means bankruptcy, liquidation or other collective
judicial or administrative proceedings, including interim proceedings, in
which the assets and affairs of the debtor are subject to control or
supervision by a court for the purposes of reorganisation or liquidation;
(m) "interested persons" means;
(i) the debtor;
(ii) any person who, for the purpose of assuring performance of
any of the obligations in favour of the creditor, gives or issues
a suretyship or demand guarantee or a standby letter of credit
or any other form of credit insurance;
(iii) any other person having rights in or over the object.
(n) "internal transaction" means a transaction of a type listed in Article 2(2)(a)
to (c) where the centre of the main interests of all parties to such
transaction is situated, and the relevant object located (as specified in the
Protocol),in the same Contracting State at the time of the conclusion of the
contract and where the interest created by the
91
transaction has been registered in a national registry in that Contracting
State which has made a declaration under Article 50(1).
(0) "international interest" means an interest held by a creditor to which Article
2 applies;
(p) "International Registry" means the international registration facilities
established for the purpose of this Convention or the Protocol;
(q) "leasing agreement" means an agreement by which one person (the
lessor) grants a right to possession or control of an object (with or without
an option to purchase) to another person (the lessee) in return for a rental
or other payment;
® "national interest" means an interest held by a creditor in an object and
created by an internal transaction covered by a declaration under Article
50(1);
(s) "non-consensual right or interest" means a right or interest conferred under
the law of a Contracting State which has made a declaration under Article
39 to secure the performance of an obligation, including an obligation to a State, State entity or an intergovernmental or private organisation;
(t) "notice of a national interest" means notice registered or to be registered in
the International Registry that a national interest has been created.
(u) "object" means an object of category to which Article 2 applies;
(v) "pre-existing right or interest" means a right or interest of any kind in or
over an object created or arising before the effective date of this
Convention as defined by Article 60(2)(a);
(w) "proceeds" means money or non money proceeds of an object arising from
the total or partial loss or physical destruction of the object or its total or
partial confiscating, condemnation or reacquisition;
(x) "prospective assignment" means an assignment that is intended to be
made in the future upon the occurrence of a stated event, whether or not
the occurrence of the event is certain;
(y) "prospective international interest" means an interest that is intended to be
created or provided for in an object as an international interest in the future,
upon the occurrence of a stated event (which may include the debtor's
acquisition of an interest in the object), whether or not the occurrence of
the event is certain;
(a) "prospective sale" means a sale which is intended to be made in the future,
upon the occurrence of a stated event, whether or not the occurrence of
the event is certain;
(b) "protocol" means in respect of any category of object and associated rights
to which this Convention applies the protocol in respect of that category of
object and associated rights;
92
(c) "registered" means registered in the International Registry pursuant to
Chapter V;
(d) "registered interest" means an international interest, a registrable non-
consensual right or interest or a national interest specified in a notice of a
national interest registered pursuant to Chapter V;
(e) "registrable non-consensual right or interest" means a nonconsensual right
or interest registrable pursuant to a declaration deposited under Article 40;
(f) "registrar" means, in respect of the Protocol, the person or body
designated by that Protocol or appointed under Article 17(2)(b);
(g) "regulations" means regulations made or approved by the Supervisory
Authority pursuant to the Protocol;
(h) "sale" means a transfer of ownership of an object pursuant to a contract of
sale;
(i) "secured obligation" means an obligation secured by a security interest;
(j) "security agreement" means an agreement by which a chargor grants or
agrees to grant to a chargee an interest (including an ownership interest) in
or over an object to secure the performance of any existing or future
obligation of the chargor or a third person;
(k) "security interest" means an interest created by a security agreement;
(II) "Supervisory Authority" means, in respect of the Protocol, the Supervisory
Authority referred to in Article 17(1);
(mm) "title reservation agreement" means an agreement for the sale of an object
on terms that ownership does not pass until fulfilment of the condition or
conditions stated in the agreement;
(nn) "unregistered interest" means a consensual interest or nonconsensual
interest (other than an interest to which Article 39 applies) which has not
been registered, whether or not it is registrable under this Convention; and
(00) "writing" means a record of information (including information
communicated by teletransmission) which is in tangible or other form and
is capable of being reproduced in tangible form on a subsequent occasion
and which indicates by reasonable means a person's approval of the
record.
Article 2 - The international interest
1. This Convention provides for the constitution and effects of an international interest in certain categories of mobile equipment and associated rights.
2. For the purposed of this Convention, an international interest in mobile equipment is an
interest, constituted under Article 7, in a uniquely identifiable object of a
93
category of such objects listed in paragraph 3 and designated in the protocol:
(a) granted by the chargor under a security agreement;
(b) vested in a person who is the conditional seller under a title reservation
agreement; or
(c) vested in a person who is the lessor under a leasing agreement.
An interest falling within sub-paragraph (a) does not also fall within the subparagraph (b) or (c)
3. The categories referred to in the preceding paragraphs are:
(a) airframes, aircraft engines and helicopters;
(b) railway rolling stock; and
(c) space assets.
4. The applicable law determines whether an interest to which paragraph 2 applies falls
within sub-paragraph (a), (b) or (c) of that paragraph.
5. An international interest in an object extends to proceeds of that object.
Article 3 - Sphere of application
1. This Convention applies when, at the time of the conclusion of the agreement creating
or providing for the international interest, the debtor is situated in a Contracting State.
2. The fact that the creditor is situated in a non-Contracting State does not affect the
applicability of this Convention.
Article 4 - Where debtor is situated
1. For the purpose of Article 3(1), the debtor is situated in any Contracting State;
(a) under the law of which it is incorporated or formed;
(b) where it has its registered office or statutory seat; (c) where it has its centre of administration; or
(d) where it has its place of business.
2. A reference in sub-paragraph (d) of the preceding paragraph to the debtor's place of
business shall, if it has more than one place of business, mean its principal place of
business or, if it has no place of business, its habitual residence.
Article 5 - Interpretation and applicable law
1 .
In the interpretation of this Convention, regard is to be had to its purposes as set forth in
the preamble, to its international character and to the need to promote uniformity and
predictability in its application.
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2. Questions concerning matters governed by this Convention which are not expressly
settled in it are to be settled in conformity with the general principles on which it is
based, or, in the absence of such principles, in conformity with the applicable law.
3. References to the applicable law are to the domestic rules of the law applicable by virtue
of the rules of private international law of the forum State.
4. Where State comprises several territorial units, each of which has its own rules of law in
respect of the matter to be decided, and where there is no indication of the relevant
territorial unit, the law of that State decides which is the territorial unit whose rules shall
govern. In the absence of any such rule, the law of the territorial unit with which the case
is most closely connected shall apply.
Article 6 - Relationship between the Convention and the Protocol
1. This Convention and the Protocol shall be read and interpreted together as a
single instrument.
2. To the extent of any inconsistency between this Convention and the Protocol, the
Protocol shall prevail.
Chapter II
Constitution of an international interest
Article 7 - Formal requirements
An interest is constituted as an international interest under this Convention where the agreement
creating or providing for the interest;
is in writing:
relates to an object of which the chargor, conditional seller or lessor has power to dispose;
enables the object to be identified in conformity with the Protocol; and
in the case of a security agreement, enables the secured obligations to be determined, but
without the need to state a sum or maximum sum secured.
Chapter III
Default remedies
Article 8 - Remedies of chargee
1
.
In the event of default as provided in Article II, the chargee may, to the extent that he
chargor has at any time so agreed and subject to any declaration that may be made by
a Contracting State under Article 54, exercise anyone or more of the following remedies;
(a) take possession or control of any object charged to it;
95
(b) sell or grant a lease of any such object;
(c) collect or receive any income or profits arising from the management or use of
any such object.
2. The chargee may alternatively apply for a court order authorising or directing any of the
acts referred to in the preceding paragraph.
3. Any remedy set out in sub-paragraph (a), (b) or (c) of paragraph 1 or by Article 13 shall
be exercised in a commercially reasonable manner. A remedy shall be deemed to be
exercised in a commercially reasonable manner where it is exercised in conformity with
a provision of the security agreement except where such a provision is manifestly
unreasonable.
4. A chargee proposing to sell or grant a lease of an object under paragraph 1 shall give
reasonable prior notice in writing of the proposed sale or lease to;
interested persons specified in Article 1 (m)(i) and (ii); and
interested persons specified in article 1 (m)(iii) who have given notice of their rights to the
chargee within a reasonable time prior to the sale or lease.
5. Any sum collected or received by the chargee as a result of exercise of any of the
remedies set out in paragraph 1 or 2 shall be applied towards discharge of the amount
of the secured obligations.
6. Where the sums collected or received by the chargee as a result of the exercise of any
remedy set out in paragraph 1 or 2 exceed the amount secured by the security interest
and any reasonable costs incurred in the exercise of any such remedy, then unless
otherwise ordered by the court the chargee shall distribute the surplus among holders of
subsequently ranking interests which have been registered or of which the chargee has
been given notice, in order of priority, and pay any remaining balance to the chargor.
Article 9 - Vesting of object in satisfaction redemption
1. At any time after default as provided in Article 11, the chargee and all the interested
persons may agree that ownership of (or any other interest of the chargor in) any object
covered by the security interest shall vest in the chargee in or towards satisfaction of the
secured obligations.
2. The court may on the application of the chargee order that ownership of (or any other
interest of the chargor in) any object covered by the security interest shall vest in the
chargee in or towards satisfaction of the secured obligations.
3. The court shall grant any application under the preceding paragraph only if the amount
of the secured obligations to be satisfied by such vesting is commensurate with the
value of the object after taking account of any payment to be made by the chargee to
any of the interested persons.
4. At any time after default as provided in Article 11 and before sale of the charged object
or the making of an order under paragraph 2, the chargor or any interested person may
discharge the security interest by paying in full the amount secured, subject to any lease
granted by the chargee under Article 8(1 )(b) or ordered under Article 8(2). Where after
such default, the payment of the amount secured is made in full by an interested person
other than the debtor, that person is subrogated to the rights of the chargee.
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5. Ownership or any other interest of the chargor passing on a sale under Article 8(1 )(b) or
passing under paragraph 1 or 2 of this Article is free from any other interest over which
the chargee's security interest has priority under the provisions of Article 29.
Article 10- Remedies of conditional seller or lessor
In the event of default under a title reservation agreement or under a leasing agreement as
provided in Article 11, the conditional seller or the lessor, as the case may be, may:
(a) subject to any declaration that may be made by a Contracting State under
Article 54, terminate the agreement and take possession or control of any
object to which the agreement relates; or
(b) apply for a court order authorising or directing either of these acts.
Article 11 - Meaning of default
1. The debtor and the creditor may at any time agree in writing as to the events that
constitute a default or otherwise give rise to the rights and remedies specified in Article 8
to 10 and 13.
2. Where the debtor and the creditor have not so agreed, "default" for the purpose of Article
8 to 10 and 13 means a default which substantially deprives the creditor of what it is
entitled to expect under the agreement.
Article 12 - Additional remedies
Any additional remedies permitted by the applicable law, including any remedies agreed upon by
the parties, may be exercised to the extent that they are not inconsistent with the mandatory
provisions of this Chapter as set out in Article 15.
Article 13 - Relief pending final determination
1. Subject to any declaration that it may make under Article 55, a Contracting State shall
ensure that a creditor who adduces evidence of default by the debtor may, pendi ng final
determination of its claim and to the extent that the debtor has at any time so agreed,
obtain from a court speedy relief in the form of such one or more of the following orders
as the creditor requests:
(a) preservation of the object and its value;
(b) possession, control or custody of the objects;
(c) immobilization of the object; and
(d) lease, or except where covered by sub-paragraph (a) to (c), management of
the object and the income therefrom.
2
. In making any order under the preceding paragraph, the court may impose such terms
as it considers necessary to protect the interested persons in the event that the creditor:
(a) in implementing any order granting such relief, fails to perform any of its
obligation to the debtor under this Convention or the Protocol; or
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(b) fails to establish its claim, wholly or in part, on the final determination of that claim.
3. Before making any order under paragraph 1, the court may require notice of the request
to be given to any of the interested persons.
4. Nothing in this article affects the application of Article 8(3) or limits the availability of
forms of interim relief other than those set out in paragraph 1.
Article 14 - Procedural requirements
Subject to Article 54(2), any remedy provided by this Chapter shall be exercised in conformity
with the procedure prescribed by the law of the place where the remedy is to be exercised.
Article 15 - Derogation
In their relations with each other, any two or more of the parties referred to in this Chapter may at
any time, by agreement in writing, derogate from or vary the effect of any of the preceding
provisions of this chapter except Articles 8(3) to (6), 9(3) and (4), 13(2) and 14.
Chapter IV
The international registration system
Article 16 - The International Registry
1. An I nternational Registry shall be established for registration of:
(a) international interest, prospective international interests and registrable
non-consensual rights and interests;
(b) assignment and prospective assignments of international interests;
(c) acquisition of international interests by legal or contractual subrogations under
the applicable law;
(d) notices of national interests; and
(e) subordinations of interests referred to in any of the preceding subparagraphs.
2. Different international registries may be established for different categories of object and
associated rights.
3. For the purpose of this Chapter and Chapter V, the term "registration" includes, where appropriate, an amendment, extension or discharge of a registration.
Article 17 - The Supervisory Authority and the Registrar
1. There shall be a Supervisory Authority as provided by the Protocol.
2. The Supervisory Authority shall:
(a) establish or provide for the establishment of the International Registry;
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(b) except as otherwise provided by the Protocol, appoint and dismiss the
Registrar;
(c) ensure that any rights required for the continued effective operation of the
International Registry in the event of a change of Registrar will vest in or be
assignable to the new Registrar;
(d) after consultation with the Contracting States, make or approve and ensure the
publication of regulations pursuant to the Protocol dealing with the operation of
the International Registry;
(e) establish administrative procedures through which complaints concerning the
operation of the International Registry can be made to the Supervisory
Authority;
(f) supervise the Registrar and the operation of the International Registry;
(g) at the request of the Registrar, provide such guidance to the Registrar as the
Supervisory Authority thinks fit;
(h) set and periodically review the structure of fees to be charged for the services
and facilities of the International Registry;
(i) do all thi ngs necessary to ensure that an efficient notice-based electronic
registration system exists to implement the objectives of this Convention and
the Protocol; and
j) report periodically to Contracting States concerning the discharge of its
obligations under this Convention and the Protocol.
3. The Supervisory Authority may enter into any agreement requisite for the performance
of its functions, including any agreement referred to in Article 27(3).
4. The Supervisory Authority shall own all proprietary rights in the data bases and archives
of he International Registry.
5. The Registrar shall ensure the efficient operation of the International Registry and
perform the functions assigned to it by this Convention, the protocol and the regulations.
Chapter V
Other matters relating to registration
Article 18 - Registration requirements
The Protocol and regulations shall specify the requirements, including the criteria for the
identification of the object:
(a) for effecting a registration (which shall include provision for prior electronic
transmission of any consent from any person whose consent is required under
Article 20);
(b) for making searches and issuing search certificates, and, subject thereto;
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(c) for ensuring the confidentiality of information and documents of the
International Registry other than information and documents relating to a
registration.
2. The Registrar shall not be under a duty to enquire whether a consent to registration
under Article 20 has in fact been given or is valid.
3. Where an interest registered as a prospective international interest becomes an
international interest, no further registration shall be required provided that the
registration information is sufficient for registration of an international interest.
4. The Registrar shall arrange for registrations to be entered into the International Registry
data base and made searchable in chronological order of receipt, and the file shall
record the date and time of receipt.
5. The Protocol may provide that a Contracting State may designate an entity or entities in
its territory as the entry point or entry points through which the information required for
registration shall or may be transmitted to the International Registry. A Contracting State
making such a designation may specify requirements, if any, to be satisfied before such
information is transmitted to the International Registry.
Article 19 - Validity and time of registration
1. A registration shall be valid only if made in conformity with Article 20.
2. A registration, if valid, shall be completed upon entry of the required information into the
International Registry database so as to be searchable.
3. A registration shall be searchable for the purpose of the preceding paragraph at the time
when:
the International Registry has assigned to it a sequentially ordered file number; and
the registration information, includi ng the file number, is stored in durable form and may be
accessed at the International Registry.
4. If an interest first registered as a prospective international interest becomes an
international interest, that international interest shall be treated as registered from the
time of registration of the prospective international interest provided that the registration
was still current immediately before the international interest was constituted as
provided by Article 7.
5. The preceding paragraph applies with necessary modifications to the registration of a
prospective assignment of an international interest.
6. A registration shall be searchable in the International Registry data base according to
the criteria prescribed by the Protocol.
Article 20 - Consent to registration
1. An international interest, a prospective international interest or an assignment or
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prospective assignment of an international interest may be registered, and any such
registration amended or extended prior to its expiry, by either partly with the consent in
writing of the other.
2. The subordination of an international interest to another international interest may be
registered by or with the consent in writing at any time of the person whose interest has
been subordinated.
3. A registration may be discharged by or with the consent in writing of the party in whose
favour it was made.
4. The acquisition of an international interest by legal or contractual subrogation may be
registered by the subrogee.
5. A registrable non-consensual right or interest may be registered by the holder thereof.
6. A notice of a national interest may be registered by the holder thereof.
Article 21 - Duration of registration
Registration of an international interest remains effective until discharged or until
expiry of the period specified in the registration.
Article 22 - Searches
1. Any person may, in the manner prescribed by the Protocol and regulations, make or
request a search of the International Registry by electronic means concerning interests
or prospective international interests registered therein.
2. Upon receipt of a request therefore, the Registrar, in the manner prescribed by the
Protocol and regulations, shall issue a registry search certificate by electronic means
with respect to any object:
(a) stating all registered information relating thereto, together with a
statement indicating the date and time of registration of such information; or
(b) stating that there is no information in the International Registry relating thereto.
3. A search certificate issued under the preceding paragraph shall indicate that the creditor
named in the registration information has acquired or intends to acquire an international
interest in the object but shall not indicate whether what is registered is an international
interest or a prospective international interest, even if this is ascertainable from the
relevant registration information.
Article 23 - List of declarations and declared
non-consensual rights or interests
The Registrar shall maintain a list of declarations, withdrawals of declaration and of the
categories of non-consensual right or interest communicated to the Registrar by the Depository
as having been declared by Contracting States in conformity with Article 39
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and 40 and the date of each such declaration or withdrawal of declaration. Such list shall be
recorded and searchable in the name of the declaring State and shall be made available as
provided in the Protocol and regulations to any person requesting it.
Article 24 - Evidentiary value of certificates
A document in the form prescribed by the regulations which purports to be a certificate issued by
the International Registry is prima facie proof:
that it has been so issued; and
of the facts recited in it, including the date and time of registration.
Article 25 - Discharge of registration
1. Where the obligations secured by a registered security interest or the obligations giving
rise to a registered non-consensual right or interest have been discharged, or where the
conditions of transfer of title under a registered title reservation agreement have been
fulfilled, the holder of such interest shall, without undue delay, procure the discharge of
the registration after written demand by the debtor delivered to or received at its address
stated in the registration.
2. Where a prospective international interest or a prospective assignment of an
international interest has been registered, the intending assignee shall, without undue
delay, procure the discharge of the registration after written demand by the intending
debtor or assignor which is delivered to or received at its address stated in the
registration before the intending creditor or assignee has given value or incurred a
commitment to give value.
3. Where the obligations secured by a national interest specified in a registered notice of a
national interest have been discharged, the holder of such interest shall, without undue
delay, procure the discharge of the registration after written demand by the debtor
delivered to or received at its address stated in the registration.
4. Where a registration ought not to have been made or is incorrect, the person in whose
favour the registrations was made shall, without undue delay, procure its discharge or
amendment after written demand by the debtor delivered to or received at its address
stated in the registration.
Article 26 - Access to the international registration facilities
No person shall be denied access to the registration and search facilities of the International
Registry on any ground other than its failure to comply with the procedures prescribed by this
Chapter.
Chapter VI
Privileges and immunities of the Supervisory Authority and the Registrar
Article 27 - Legal personality; immunity
1. The Supervisory Authority shall have international legal personality where not already
possessing such personality.
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3.
4.
1.
2. The Supervisory Authority and its officers and employees shall enjoy such immunity
from legal or administrative process as is specified in the Protocol.
3 .
(a )
The supervisory Authority shall enjoy exemption from taxes and such other privileges as may be provided by agreements with the host State.
(b) For the purpose of this paragraph, "host state" means the State in which the
Supervisory Authority is situated.
4. The assets, documents, date bases and archives of the International Registry shall be
inviolable and immune from seizure or other legal or administrative process.
5. For the purposes of any claim against the Registrar under Article 28(1) or Article 44, the
claimant shall be entitled to access to such information and documents as are
necessary to enable the claimant to pursue its claim.
6. The Supervisory Authority may waive the inviolability and immunity conferred by
paragraph 4. Chapter VII
Liability of the Registrar
Article 28 - Liability and financial assurance
1. The Registrar shall be liable for compensatory damages for loss suffered by a person
directly resulting from an error or omission of the Registrar and its officers and
employees or from a malfunction of the international registration system except where
the malfunction is caused by an event of an inevitable and irresistible nature, which
could not be prevented by using the best practices in current use in the field of electronic
registry design and operation, including those related to back-up and systems security
and networking.
2. The Registrar shall not be liable under the preceding paragraph for factual inaccuracy of
registration information received by the Registrar or transmitted by the Registrar in the
form in which it received that information nor for acts or circumstances for which the
registrar and its officers and employees are not responsible and arising prior to receipt
of registration information at the International Registry.
Compensation under paragraph 1 may be reduced to the extent that the person who suffered the damage caused or contributed to that damage.
The Registrar shall procure insurance or a financial guarantee covering the liability
referred to in this Article to the extent determined by the Supervisory Authority, in
accordance with the Protocol.
Chapter VIII
Effects of an international interest as against third parties
Article 29 - Priority of competing interests
A registered interest has priority over interest subsequently registered and over an unregistered interest.
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2. The priority of the first-mentioned interest under the preceding paragraph applies:
(a) even if the first-mentioned interest was acquired or registered with actual
knowledge of the other interest; and
(b) even as regards value given by the holder of the first-mentioned interest with
such knowledge.
3. The buyer of an object acquires its interest in it:
(a) subject to an interest registered at the time of its acquisition of that interest; and
(b) free from an unregistered interest even if it has actual knowledge of such an interest.
4. The conditional buyer or lessee acquires its interest in or right over that object:
(a) subject to an interest registered prior to the registration of the international
interest held by its conditional seller or lessor; and
(b) free from an interest not so registered at that time even if it has actual
knowledge of that interest.
5. The priority of competing interests or rights under this Article may be varied by
agreement between the holders of those interests, but an assignee of a subordinated
interest is not bound by an agreement to subordinate that interest unless at the time of
the assignment a subordination had been registered relating to that agreement.
6. Any priority given by this Article to an interest in an object extends to proceeds.
7. This Convention:
(a) does not affect the rights of a person in an item, other than an object, held prior
to its installation on an object if under the applicable law those rights continue
to exist after the installation; and
(b) does not prevent the creation of rights in an item, other than an object, which
has previously been installed on an object where under the applicable law
those rights are created.
Article 30 - Effects of insolvency
1 .
In insolvency proceedings against the debtor an international interest is effective if prior
to the commencement of the insolvency proceedings that interest was registered in
conformity with this Convention.
2. Nothing in this Article impairs the effectiveness of an international interest in the insolvency proceedings where that interest is effective under the applicable law.
3. Nothing in this Article affects:
(a) any rules of law applicable in insolvency proceedings relating to the
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2.
avoidance of a transaction as a preference or a transfer in fraud of creditors; or
(b) any rules of procedure relating to the enforcement of rights to property which is
under the control or supervision of the insolvency administrator.
Chapter IX
Assignments of associated rights and international interests; rights of
subrogation
Article 31 - Effects of assignment
1. Except as otherwise agreed by the parties, an assignment of associated rights made in
conformity with Article 32 also transfers to the assignee:
the related international interest; and
all the interests and priorities of the assignor under this Convention.
2. Nothing in this Convention prevents a partial assignment of the assignor's associated
rights. In the case of such a partial assignment the assignor and assignee may agree as
to their respective rights concerning the related international interest assigned under the
preceding paragraph but not so as adversely to affect the debtor without its consent.
3. Subject to paragraph 4, the applicable law shall determine the defences and rights of
set-off available to the debtor against the assignee.
4. The debtor may at any time by agreement in writing waive all or any of the defences and
rights of setoff referred to in the preceding paragraph other than defences arising from
fraudulent acts on the part of the assignee.
5. In the case of an assignment by way of security, the assigned associated rights revest in
the assignor, to the extent that they are still subsisting, when the obligations secured by
the assignment have been discharged.
Article 32 - Formal requirements for assignment
1. An assignment of associated rights transfers the related international interest only if it:
(a) is in writing;
(b) enables the associated rights to be identified under the contract from
which they arise; and
(c) in the case of an assignment by way of security, enables the obligations
secured by the assignment to be determined in accordance with the Protocol
but without the need to state a sum or maximum sum secured.
An assignment of an international interest created or provided for by a security
agreement is not valid unless some or all related associated rights also are assigned.
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3. This Convention does not apply to an assignment of associated rights which is not
effective to transfer the related international interest.
Article 33 - Debtor's duty to assignee
1. To the extent that associated rights and the related international interest have been
transferred in accordance with Article 31 and 32, the debtor in relation to those rights
and that interest is bound by the assignment and has a duty to make payment or give
other performance to the assignee, if but only if:
(a) the debtor has been given notice of the assignment in writing by or with the authority of the assignor; and
(b) the notice identifies the associated rights.
2. Irrespective of any other ground on which payment or performance by the debtor
discharges the latter from liability, payment or performance shall be effective for this
purpose if made in accordance with the preceding paragraph.
3. Nothing in this Article shall affect the priority of competing assignments.
Article 34- Default remedies in respect of assignment by way of
security
In the event of default by the assignor under the assignment of associated rights and the related
international interest made by way of security, Article 8,9 and 11 to 14 apply in the relations
between the assignor and the assignee (and in relation to associated rights, apply in so far as
those provisions are capable of application to intangible property) as if references:
(a) to the secured obligation and the security interest were references to the
obligation secured by the assignment of the associated rights and the related
international interest and the security interest created by that assignment;
(b) to the chargee or creditor and chargor or debtor were references to the
assignee and assignor;
(c) to the holder of the international interest were references to the assignee; and
(d) to the object were references to the assigned associated rights and the related
international interest.
Article 35 - Priority of competing assignments
1 .
Where there are competing assignments of associated rights and at least one of the
assignment includes the related international interest and is registered, the provisions of
Article 29 apply as if the references to a registered interest were references to an
assignment of the associated rights and the related registered interest and as if
references to a registered or unregistered interest were references to a registered or
unregistered assignment.
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2. Article 30 applies to an assignment of associated rights as if the references to an
international interest were references to an assignment of the associated rights and the
related international interest.
Article 36 - Assignee's priority with respect to associated rights
1. The assignee of associated rights and the related international interest whose
assignment has been registered only has priority under Article 35(1) over another
assignee of the associated rights:
(a) if the contract under which the associated rights arise states that they are secured by or associated with the object; and
(b) to the extent that the associated rights are related to an object.
2. For the purpose of sub-paragraph (b) of the preceding paragraph, associated rights are
related to an object only to the extent that they consist of tights to payment or
performance that relate to:
(a) a sum advanced and utilised for the purchase of the object;
(b) a sum advanced and uti lised for the purpose another object in which the
assignment hold another international interest if the assignor transferred that
interest to the assignee and the assignment has been registered;
(c) the price payable for the object;
(d) the rentals payable in respect of the object; or
other obligations arising from a transaction referred to in any of the preceding paragraphs.
3. In all other cases, the priority of the competing assignments of the associated rights
shall be determined by the applicable law.
Article 37- Effects of assignor's insolvency
The provisions of Article 30 apply to insolvency proceedings against the assignor as if
references to the debtor were references to the assignor.
Article 38 - Subrogation
1. Subject to paragraph 2, nothing in this Convention affects the acquisition of associated
rights and the related international interest by legal or contractual subrogation under the
applicable law.
2. The priority between any interest within the preceding paragraph and a competing
interest may be varied by agreement in writing between the holders of the respective
interests but an assignee of a subordinated interest is not bound by an agreement to
subordinate that interest unless at the time of the assignment a subordination had been
registered relating to that agreement.
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Chapter X
Rights or interests subject to declarations by Contracting States
Article 39 - Rights having priority without registration
1. A Contracting State may at any time, in a declaration deposited with the Depositary of
the Protocol declare, generally or specifically:
(a) those categories of non-consensual rights or interest (other than a right or
interest to which Article 40 applies) which under that State's law have priority
over an interest in an object equivalent to that of the holder of a registered
international interest and which shall have priority over a registered
international interest, whether in or outside insolvency proceedings; and
(b) that nothing in this Convention shall affect the right of a State entity,
intergovernmental organisation or other private provider of public services to
arrest or detain an object under the law of that State for payment of amounts
owed to such entity, organisation or provider directly relating to those services
in respect of that object or another object.
2. A declaration made under the preceding paragraph may be expressed to cover
categories that are created after the deposit of that declaration.
3. A non-consensual right or interest has priority over an international interest if and only if
the former is of a category covered by a declaration deposited prior to the registration of
the international interest.
4. Notwithstanding the preceding paragraph, a contracting State may, at the time of
ratification, acceptance, approval of, or accession to the Protocol, declare that a right or
interest of a category covered by a declaration made under sub-paragraph (a) of
paragraph 1 shall have priority over an international interest registered prior to the date
of such ratification, acceptance, approval or accession.
Article 40 - Registrable non-consensual rights or interests
A Contractual State may at any time in a declaration deposited with the Depositary of the
Protocol list the categories of non-consensual right or interest which shall be registrable under
this Convention as regards any category of object as if the right or interest were an international
interest and shall be registered accordingly. Such a declaration may be modified from time to
time.
Chapter XI
Application of the Convention to sales
Article 41 - Sale and prospective sale
This Convention shall apply to the sale or prospective sale of an object as provided for in the
Protocol with any modifications therein.
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Chapter XII
J u risd ictio n
Article 42 - Choice of forum
1. Subject to Articles 43 and 44, the courts of a Contracting State chosen by the parties to
a transaction have jurisdiction in respect of any claim brought under this Convention,
whether or not the chosen forum has connection with the parties or the transaction.
Such jurisdiction shall be exclusive unless otherwise agreed between the parties.
2. Any such agreement shall be in writing or otherwise concluded in accordance with the
formal requirements of the law of the chosen forum.
Article 43 - Jurisdiction under Article 13
1. The courts of a Contracting State chosen by the parties and the courts of the
Contracting State on the territory of which the object is situated have jurisdiction to grant
relief under Article 13(1 )(a),(b),(c) and Article 13(4) in respect of that object.
2. Jurisdiction to grant relief under Article 13(1 )(d) or other interim relief by virtue of Article
13(4) may be exercised either:
by the courts chosen by the parties; or
by the courts of a Contracting State on the territory of which the debtor is situated, being relief
which, by the terms of the order granting it, is enforceable only in the territory of
that Contracting State.
3. A court has jurisdiction under the preceding paragraphs even if the final determination
of the claim referred to in Article 13(1) will or may take place in a court of another
Contracting State or by arbitration.
Article 44 - Jurisdiction to make orders against the Registrar
1. The courts of the place in which the Registrar has its centre of administration shall have
exclusive jurisdiction to award damages or make orders against the Registrar.
2. Where a person fails to respond to a demand made under Article 25 and that person has
ceased to exist or cannot be found for the purpose of enabling an order to be made
against it requiring it to procure discharge of the registration, the courts referred to in the
preceding paragraph shall have exclusive jurisdiction, on the application of the debtor or
intending debtor, to make an order directed to the Registrar requiring the Registrar to
discharge the registration.
3. Where a person fails to comply with an order of a court having jurisdiction under this
Convention or, in the case of a national interest, an order of a court of competent
jurisdiction requiring that person to procure the amendment or discharge of a
registration, the courts referred to in paragraph 1 may direct the Registrar to take such
steps as will give effect to that order.
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4. Except as otherwise provided by the preceding paragraphs, no court may make orders
or give judgments or ruling against or purporting to bind the Registrar.
Article 45 - Jurisdiction in respect of insolvency proceedings
The provisions of this Chapter are not applicable to insolvency proceedings.
Chapter XIII
Relationship with other Conventions
Article 45 bis - Relationship with the United Nations Convention on the Assignment
of Receivables in International Trade.
This Convention shall prevail over the United Nations Convention on the Assignment of
Receivables in International Trade, opened for signature in New York of 12 December 2001, as it
relates to the assignment of receivables which are associated rights related to international
interests in aircraft object, railway rolling stock and spaces assets.
Article 46 - Relationship with the UNIDROIT Convention on
International Finance Leasing
The Protocol may determine the relationship between this Convention and the UN IDROIT
Convention on International Finance Leasing, signed at Ottawa on 28 May 1988.
Chapter XIV
Final Provisions
Article 47 - Signature, ratification, acceptance, approval or accession
2.
3.
4.
1. This Convention shall be open for signature in Cape Town on 16 November 2001 by
States participating in the Diplomatic Conference to Adopt a Mobile Equipment
Convention and an Aircraft Protocol held at Cape Town from 29 October to 16
November 2001. After 16 November 2001, the Convention shall be open to all States for
signature at the Headquarters of International Institute for the Unification of Private Law
(UNIDROIT) in Rome until it enters into force in accordance with Article 49.
This Convention shall be subject to ratification, acceptance or approval by States which
have signed it.
Any State which does not sign this Convention may accede to it at any time.
Ratification, acceptance, approval or accession is effected by the deposit of a formal
instrument to that effect with the Depositary.
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Article 48 - A Regional Economic Integration Organizations
1. A Regional Economic Integration Organisation which is constituted by sovereign States
and has competence over certain matters governed by this Convention may similarly
sign, accept, approve or accede to this Convention. The Regional Economic Integration
Organisation shall in that case have the rights and obligations of a Contracting State, to
the extent that that Organisation has competence over matters governed by this
Convention. Where the number of Contracting States is relevant in this Convention, the
Regional Economic Integration Organisation shall not count as a Contracting State in
addition to its Member States which are Contracting States.
2. The Regional Economic Integration Organisation shall, at the time of signature, acceptance,
approval or accession, make a declaration to the Depositary specifying the matters governed by
this Convention in respect of which competence has been transferred to that Organisation by its
Member States. The Regional Economic Integration Organisation shall promptly notify the
Depositary of any changes to the distribution of competence, including new transfers of
competence, specified in the declaration under this paragraph.
3. Any reference to a "Contracting State" or "Contracting States" or "State Party" or "States
Parties" in this Convention applies equally to a Regional Economic Integration Organisation
where the context so requires.
Article 49 - Entry into force
1. This Convention enters into force on the first day of the month following the expiration of
three months after the date of the deposit of the third instrument of ratification,
acceptance, approval or accession but only as regards a category of objects to which a
Protocol applies:
(a) as from the time of entry into force to that Protocol;
(b) subject to the terms of that Protocol; and
(c) as between States Parties to this Convention and that Protocol.
2. For other States this Convention enters into force on the first day of the month following
the expiration of three months after the date of the deposit of their instrument of
ratification, acceptance, approval or accession but only as regards a category of objects
to which a Protocol applies and subject, in relation to such Protocol, to the requirements
of sub-paragraphs (a), (b) and (c) or the preceding paragraph.
Article 50 - Internal transactions
1 .
A Contracting State may, at the time of ratification, acceptance, approval of, or
accession to the Protocol, declare that this Convention shall not apply to a transaction
which is an internal transaction in relation to that State with regard to all types of objects
or some of them.
2. Notwithstanding the preceding paragraph, the provisions of Articles 8(4), 9(1), 16,
Chapter V, Article 29, and any provisions of this Convention relating to registered
interest shall apply to an internal transaction.
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3. Where notice of a national interest has been registered in the International Registry, the
priority of the holder of that interest under Article 29 shall not be affected by the fact that
such interest has become vested in another person by assignment or subrogation under
the applicable law.
Article 51 - Future Protocols
1. The Depositary may create working groups, in co-operation with such relevant
non-governmental organisations as the Depositary considers appropriate, to assess the
feasibility of extending the application of this Convention, through one or more
Protocols, to objects of any category of high-value mobile equipments, other than a
category referred to in Article 2(3), each member of which is uniquely identifiable, and
associated rights relating to such objects.
2. The Depositary shall communicate the text of any preliminary draft Protocol relating to a
category of objects prepared by such a working group to all States Parties to this
Convention, all member States of the Depositary, member States of the United Nations
which are not members of the Depositary and the relevant intergovernmental
organisations, and shall invite such States and organisations to participate in
intergovernmental negotiations for the completion of a draft Protocol on the basis of
such a preliminary draft Protocol.
3. The Depositary shall also communicate the text of any preliminary draft Protocol
prepared by such a working group to such relevant non-governmental organisations as
the Depositary considers appropriate. Such non-governmental organisations shall be
invited promptly to submit comments on the text of the preli minary draft Protocol to the
Depositary and to participate as observers in the preparation of a draft Protocol.
4. Where the competent bodies of the Depositary adjudge such a draft Protocol ripe for
adoption, the Depositary shall convene a diplomatic conference for its adoption.
5. Once such a Protocol has been adopted, subject to paragraph 6, this Convention shall
apply to the category of objects covered thereby.
6. Article 45 bis of this convention applies to such a Protocol only if specifically provided for
in that Protocol.
Article 52 - Territorial units
2.
3.
4.
1. If a Contracting State has territorial units in which different systems of law are applicable
in relation to the matters dealt with in this Convention, it may, at the time of ratification,
acceptance, approval, or accession, declare that this Convention is to extend to all its
territorial units or only to one or more of them and
may modify its declaration by submitting another declaration at any time.
Any such declaration shall state expressly the territorial units to which this Convention
applies.
If a Contracting State has not made any declaration under paragraph 1, this Convention
shall apply to all territorial units of that State.
Where a Contracting State extends this Convention to one of its territorial units,
declarations permitted under this Convention may be made in respect of each
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such territorial unit, and the declarations made in respect of one territorial unit may be
different from those made in respect of another territorial unit.
5. If by virtue of a declaration under paragraph 1, this Convention extends to one or more
territorial units of a Contracting State:
(a) the debtor is considered to be situated in a Contracting State only if it is
incorporated or formed under a law in force in a territorial unit to which this
Convention applies or if it has its registered office or statutory seat, centre of
administration, place of business or habitual residence in a territorial unit to
which this Convention applies;
(b) any reference to the location of the object in a Contracting State refers to the
location of the object in a territorial unit to which this Convention applies; and
(c) any reference to the administrative authorities in that Contracting State shall be
construed as referring to the administrative authorities having jurisdiction in a
territorial unit to which this Convention applies.
Article 53 - Determination of courts
A Contracting State may, at the time of ratification, acceptance, approval of, or accession to the
Protocol, declare the relevant "court" or "courts" for the purposes of Article 1 and Chapter XII of
this Convention.
Article 54 - Declarations regarding remedies
1. A Contracting State may, at the time of ratification, acceptance, approval of, or
accession to the Protocol, declare that while the charged objects is situated within, or
controlled from its territory the chargee shall not grant a lease of the objects in that
territory.
2. A Contracting State shall, at the time of ratification, acceptance, approval of, or
accession to the Protocol, declare whether or not any remedy available to the creditor
under any provisions of this Convention which is not there expressed to require
application to the court may be exercised only with leave of the court.
Article 55 - Declaration regarding relief
pending final determination
A Contracting State may, at the time of ratification, acceptance, approval of, or accession to the
Protocol, declare that it will not apply the provisions of Article 13 or Article 43, or both, wholly or in
part. The declaration shall specify under which conditions the relevant Article will be applied, in
case it will be applied partly, or otherwise which other forms of interim relief will be applied.
Article 56 - Reservations and Declaration
1. No reservations may be made to this Convention but declarations authorised by Articles
39, 40, 50, 52. 53, 54, 55, 57,58 and 60 may be in accordance with these provisions.
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2. Any declaration or subsequent declaration or any withdrawal of a declaration
made under this Convention shall be notified in writing to the Depositary.
Article 57 - Subsequent declarations
1. A State Party may make a subsequent declaration, other than a declaration
authorised under Article 60, at any time after the date on which this convention has
entered into force for it, by notifying the Depositary to that effect.
2. Any such subsequent declaration shall take effect on the first day of the month following
the expiration of six months after the date of receipt of the notification by the Depositary.
Where a longer period for that declaration to take effect is specified in the notification, it
shall take effect upon the expiration of such longer period after receipt of the notification
by the Depositary.
3. Notwithstanding the previous paragraphs, this Convention shall continue to apply, as if
no such subsequent declarations had been made, in respect of all rights and interests
arising prior to the effective date of any such subsequent declaration.
Article 58 - Withdrawal of declarations
1. Any State Party having made a declaration under this Convention, other than a
declaration authorised under Article 60, may withdraw it at any time by notifying the
Depositary. Such withdrawal is to take effect on the first day of the month following the
expiration of six months after the date of receipt of the notification by the Depositary.
2. Notwithstanding the previous paragraph, this Convention shall continue to apply, as if
no such withdrawal of declaration had been made, in respect of all rights and interests
arising prior to the effective date of any such withdrawal.
Article 59 - Denunciations
1. Any State Party may denounce this Convention by notification in writing to the
Depositary.
2. Any such denunciation shall take effect on the first day of the month following the
expiration of twelve months after date on which notification is received by the
Depositary.
3. Notwithstanding the previous paragraphs, this convention shall continue to apply, as if
no such denunciation had been made, in respect of all rights and interests arising prior
to the effective date of any such denunciation.
Article 60 - Transitional Provisions
1
.
Unless otherwise declared by a Contracting State at any time, the Convention does not
apply to a pre-existing right or interest, which retains the priority it enjoyed under the
applicable law before the effective date of this Convention.
2. For the purpose of Article 1 (v) and of determining priority under this Convention:
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4.
(a) "effective date of this Convention" means in relation to a debtor the time when
this Convention enters into force or the time when the State in which the debtor
is situated becomes a Contracting State, whichever is the later; and
(b) the debtor is situated in a State where it has its centre of administration or, if it
has no centre of administration, its place of business or, if it has more than one
place of business, its principal place of business or, if it has no place of
business, its habitual residence.
3. A Contracting State may in its declaration under paragraph 1 specify a date, not earlier
than three years after the date on which the declaration becomes effective, when this
Convention and the Protocol will become applicable, for the purpose of determining
priority, including the protection of any existing priority, to pre-existing rights or interests
arising under an agreement made at a time when the debtor was situated in a State
referred to in sub-paragraph (b) of the preceding paragraph but only to the extent and in
the manner specified in its declaration.
Article 61 - Review Conferences, amendments and related matters
1. The Depositary shall prepare reports yearly or at such other time as the circumstances
may require for the States Parties as to the manner in which the international regimen
established in this Convention has operated in practice. In preparing such reports, the
Depositary shall take into account the reports of the Supervisory Authority concerning
the functioning of the international registration system.
2. At the request of not less than twenty-five per cent of the States Parties, Review
Conferences of States Parties shall be convened from time to time by the Depositary, in
consultation with the supervisory Authority, to consider:
(a) the practical operation of this Convention and its effectiveness in facilitating the
asset-base financing and leasing of objects covered by its terms;
(b) the judicial interpretation given to, and the application made of the terms of this
Convention and regulations;
(c) the functioning of the international registration system, the performance of the
Registrar and its oversight by the Supervisory Authority, taking into account the
reports of the Supervisory Authority; and
(d) whether any modifications to this Convention or the arrangements relating to
the International Registry are desirable.
3. Subject to paragraph 4, any amendment to this Convention shall be approved by at least
a two-thirds majority of States Parties participating in the Conference referred to in the
preceding paragraph and shall then enter into force in respect of States which have
ratified, accepted or approved such amendment when ratified, accepted or approved by
three States in accordance with the provisions of Article 49 relating to its entry into force.
Where the proposed amendment to this Convention is intended to apply to more than
one category of equipments, such amendment shall also be approved by at least a
two-thirds majority of States Parties to each Protocol that are participating in the
Conference referred to in paragraph 2.
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Article 62 - Depositary and its functions
1. Instruments of ratification, acceptance, approval or accession shall be deposited with
the International Institute for the Unification of Private Law (UNIDROIT), which is hereby
designated the Depositary.
2. The Depositary shall:
(a) inform all Contracting States of:
(i) each new signature or deposit of an instrument of ratification,
acceptance, approval or accession, together with the date thereof;
(ii) the date of entry into force of this Convention;
(iii) each declaration made in accordance with this Convention, together
with the date thereof;
(iv) the withdrawal or amendment of any declaration, together with the
date thereof; and
(v) the notification of any denunciation of this Convention together with the
date thereof and the date on which it takes effect;
(b) transmit certified true copies of this Convention to all Contracting States;
(c) provide the Supervisory Authority and the Registrar with a copy of each
instrument of ratification, acceptance, approval or accession, together with the
date of deposit thereof, of each declaration or withdrawal or amendment of a
declaration and of each notification of denunciation, together with the date of
notification thereof, so that the information contained therein is easily and fully
available; and
(d) perform such other functions customary for depositaries.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, having been duly
authorised, have signed this Convention.
DONE at Cape Town, this sixteenth day of November, two thousand and one, in a
single original in the English, Arabic, Chinese, French, Russian and Spanish languages, all
exists being equally authentic, such authenticity to take effect upon verification by the Joint
Secretariat of the Conference under the authority of the President of the Conference within
ninety days hereof as to the conformity of the texts with one another.
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SCHEDULE V(b) ..................................................... . Section 74(2)
Protocol To the Convention on International Interest in Mobile Equipment on Matters specific to Aircraft Equipment
PROTOCOL
TO THE CONVENTION
ON INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT ON
MATTERS SPECIFIC TO AIRCRAFT EQUIPMENT
THE STATES PARTIES TO THIS PROTOCOL.
CONSIDERING it necessary to implement the Convention of International Interests in Mobile
Equipment (hereinafter referred to as "the Convention") as it relates to aircraft
equipment, in the light of the purposes set out in the preamble to the Convention,
MINDFUL of the need to adapt the Convention to meet the particular requirements
of aircraft finance and to extend the sphere of application of the Convention to include
contracts of sale of aircraft equipment.
MINDFUL of the principles and objectives of the Convention on International Civil
Aviation, signed at Chicago on 7 December 1944.
HAVE AGREED upon the following provisions relating to aircraft equipment:
Chapter 1
Sphere of application and general Provisions
Article 1- Defined terms
1. In this Protocol, except where the context otherwise requires, terms used in it have the
meanings set out in the Convention.
2. In this Protocol the following terms are employed with the meanings set out below:
(a) "aircraft" means aircraft as defined for the purpose of the Chicago Convention
which are either airframes with aircraft engines installed thereon or helicopters;
(b) "aircraft engines" means aircraft engines (other than those used in military,
customs or police services) powered by jet propulsion or turbine or piston
technology and;
(i) in the case of jet propulsion aircraft engines, have at least 1750 Ib of
thrust or its equivalent; and
(ii) in the case of turbine-powered or piston-powered aircraft engines,
have at least 550 rated take-off shaft horse power or its equivalent.
together with all modules and other installed, incorporated or attached accessories,
parts and equipment and all data, manuals and records relating
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thereto;
(c) "aircraft objects" means airframes, aircraft engines and helicopters;
(d) "aircraft register" means a register maintained by a State or a common mark
registering authority for the purposes of the Chicago Convention;
(e) "airframes" means airframes (other than those used in military, custom or police
services that, when appropriate aircraft engines are installed thereon, are type
certified by the competent aviation authority to transport;
(i) at least eight (8) persons including crew; or
(ii) goods in excess of 2750 kilograms,
(iii) together with all installed, incorporated or attached accessories, parts
and equipment (other than aircraft engines), and all data, manuals and
records relating thereto;
(f) "authorised party" means the party referred to in Article XIII(3);
(g) "Chicago Convention" means the Convention on International Civil Aviation,
signed at Chicago on 7 December 1944, as amended, and its Annexes;
(h) "common mark registering authority" means the authority maintaining a register
in accordance with Article 77 of the Chicago Convention as imple mented by
the Resolution adopted on 14 December 1967 by the Council of the
International Civil Aviation Organisation on nationality and registration of
aircraft operated by international operating agencies;
(i) "de-registration of the aircraft" means deletion or removal of the registration of
the aircraft from its aircraft register in accordance with the Chicago Convention;
U) "guarantee contract" means a contract entered into by a person as guarantor;
(k) "guarantor" means a person who, for the purpose of assuring performance of
any obligations in favour of a creditor secured by a security agreement or under
an agreement, gives or issues a suretyship or demand guarantee or a standby
letter of credit or any other form of credit insurance;
(I) "helicopters" means heavier-than-air machines (other than those used in
military, customs, or police services) supported in flight chiefly by the reactions
of the air on one or more power-driven rotors on substantially vertical axes and
which are type certified by the competent aviation authority to transport:
(i) at least five (5) persons including crew; or
(ii) goods in excess of 450 kilograms.
together with all installed, incorporated or attached accessories, parts and equipment (including rotors), and all data manuals and records relating thereto;
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(m) "insolvency-related event" means:
(i) the commencement of the insolvency proceedings; or
(ii) the declared intention to suspend or actual suspension of payments by
the debtor where the creditor's right to institute insolvency proceedings
against debtor or to exercise remedies under the Convention is
prevented or suspended by law or State action;
(n) "primary insolvency jurisdiction" means the Contracting State in which the
centre of the debtor's main interest is situated, which for this purpose shall be
deemed to be the place of the debtor's statutory seat or, if there is none, the
place where the debtor is incorporated or formed, unless proved otherwise;
(0) "registry authority" means the national authority or the common mark
registering authority, maintaining an aircraft register in a Contracting State and
responsible for the registration and de-registration of an aircraft in accordance
with the Chicago Convention; and
(p) "State of registry" means, in respect of an aircraft, the State on the national
register of which an aircraft is entered or the State of location of the common
mark registering authority maintaining the aircraft register.
Article II - Application of Convention as regards aircraft objects
1. The Convention shall apply in relation to aircraft objects as provided by the terms of this Protocol.
2. The Convention and this Protocol shall be known as the Convention on International Interests in Mobile Equipment as applied to aircraft objects.
Article 111- Application of Convention to sales
The following provisions of the Convention apply as if references to an agreement creating or
providing for an international interest were references to a contract of sale and as if references to
an international interest, a prospective international interest, the debtor and the creditor were
references to a sale, a prospective sale, the seller and the buyer respectively:
Article 3 and 4;
Article 16(1 )(a);
Article 19(4)
Article 20(1) (as regards registration of a sale or a prospective sale);
Article 25(2) (as regards a prospective sale); and
Article 30.
In addition, the general provisions of Article 1, Article 5, Chapter IV to VII, Article 29 (other than
Article 29(3) which is replaced by Article XIV (1) and (2), Chapter X, Chapter XII (other that Article
43), Chapter XIII and Chapter XIV (other than Article 60) shall apply to contracts of sale and
prospective sales.
Article IV - Sphere of application
1. Without prejudice to Article 3(1) of the Convention, the Convention shall also
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apply in relation to a helicopter, or to an airframe pertaining to an aircraft, registered in
an aircraft register of a Contracting State which is the State of registry, and where such
registration is made pursuant to an agreement for registration of the aircraft it is deemed
to have been effected at the time of the agreement.
2. For the purposes of the definition of "internal transaction" in Article 1 of the Convention:
(a) an airframe is located in the State of registry of the aircraft of which it is a part;
(b) an aircraft engine is located in the State of registry of the aircraft on which it is
installed or, if it is not installed on an aircraft, where it is physically located; and
(c) a helicopter is located in its State of registry,
at the time of the conclusion of the agreement creating or providing for the interest.
3. The parties may, by agreement in writing, exclude the application of Article XI and, in
their relations with each other, derogate from or vary the effect of any of the provisions of
this Protocol except Article IX (2)-(4).
Article V - Formalities, effects and registration of contracts of sale
1. For the purposes of this Protocol, a contract of sale is one which:
is in writing;
relates to an aircraft object of which the seller has power to dispose; and
enables the aircraft object to be identified in conformity with this Protocol.
2. A contract of sale transfers the interest of the seller in the aircraft object to the buyer
according to its terms.
3. Registration of contract of sale remains effective indefinitely. Registration of a
prospective sale remains effective unless discharged or until expiry of the period, if any,
specified in the registration.
Article VI - Representative capacities
A person may enter into an agreement or a sale, and register an international interest in, or a sale
of, an aircraft object, in an agency, trust or other representative capacity. In such case, that
person is entitled to assert rights and interests under the Convention.
Article VII - Description of aircraft objects
A description of an aircraft object that contains its manufacturer's serial number, the name of the
manufacturer and its model designation is necessary and sufficient to identify the object for the
purposes of Article 7 (c) of the Convention and Article V(1 )(c) of this Protocol.
Article VIII - Choice of law
1. This Article applies only where a Contracting State has made a declaration pursuant to
Article XXX (1).
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2. The parties to an agreement, or a contract of sale, or a related guarantee contract or
subordination agreement may agree on the law which is to govern their contractual
rights and obligation, wholly or in part.
3. Unless otherwise agreed, the reference in the preceding paragraph to the law chosen
by the parties is to the domestic rules of law of the designated State or, where that State
comprises several territorial units, to the domestic law of the designated territorial unit.
Chapter II
Default remedies, priorities and assignments
Article IX - Modification of default remedies provisions
1. In addition to the remedies specified in Chapter III of the Convention, the creditor may,
to the extent that the debtor has at any time so agreed and in the circumstances
specified in that Chapter:
(a) procure the de-registration of the aircraft; and
(b) procure the export and physical transfer of the aircraft object from the territory
in which it is situated.
2. The creditor shall not exercise the remedies specified in the preceding paragraph
without the prior consent in writing of the holder of any registered interest ranking in
priority to that of the creditor.
3. Article 8(3) of the Convention shall not apply to aircraft objects. Any remedy given by the
Convention in relation to an aircraft object shall be exercised in a commercially
reasonable manner. A remedy shall be deemed to be exercised in a commercially
reasonable manner where it is exercised in conformity with a provision of the agreement
except where such a provision is manifestly unreasonable.
4. A chargee giving ten or more working days' prior written notice of a proposed sale or
lease to interested persons shall be deemed to satisfy the requirement of providing
"reasonable prior notice" specified in Article 8(4) of the Convention. The foregoing shall
not prevent a chargee and a chargor or a guarantor from agreeing to a longer period of
prior notice.
5. The registry in a contracting state shall, subject to any applicable safety laws and
regulations, honour a request for de-registration and export if:
(a) the request is properly submitted by the authorised party under a recorded
irrevocable de-registration and export request authorisation; and
(b) the authorised party certifies to the registry authority, if required by that
authority, that all registered interests ranking in priority to that of the creditor in
whose favour the authorisation has been issued have been discharged or that
the holders of such interests have consented to the deregistration and export.
6. A chargee proposing to procure the de-registration and export of an aircraft under
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paragraph 1 otherwise than pursuant to a court order shall give reasonable prior notice
in writing of the proposed de-registration and export to:
(a) interested persons specified in Article 1 (m)(i) and (ii) of the Convention; and
(b) interested persons specified in Article 1 (m)(iii) of the Convention who have
given notice of their rights to the chargee within a reasonable time prior to the
de-registration and export.
Article X - Modification of provisions regarding relief pending final determination
1. This Article applies only where a Contracting State has made a declaration under Article
XXX (2) and to the extent stated in such declaration.
2. For the purposes of Article 13(1) of the Convention, "speedy" in the context of obtaining
relief means within such number of working days from the date of filing of the application
for relief as is specified in a declaration made by the Contracting State in which the
application is made.
3. Article 13(1) of the Convention applies with the following being added immediately after
sub-paragraph (d):
"(e) if at any time the debtor and the creditor specifically agree, sale and
application of proceeds therefrom",
and Article 43(2) applies with the insertion after the words "Article 13(1 )(d)" of the word "and
(e)".
4. Ownership or any other interest of the debtor passing on a sale under the preceding
paragraph is free from any other interest over which the creditor's international interest
has priority under the provisions of Article 29 of the Convention.
5. The creditor and the debtor or any other interested person may agree in writing to
exclude the application of Article 13(2) of the Convention.
6. With regard to the remedies in Article IX (1):
(a) they shall be made available by the registry authority and other administrative
authorities, as applicable, in a Contracting State no later than five working
days after the creditor notifies such authorities that the relief specified in article
IX(1) is granted or, in the case of relief granted by a foreign court, recognised
by a court of that Contracting State, and that the creditor is entitled to procure
those remedies in accordance with the Convention; and
(b) the applicable authorities shall expeditiously co-operate with and assist the
creditor in the exercise of such remedies in conformity with the applicable
aviation safety laws and regulations.
7. Paragraph 2 and 6 shall not affect any applicable aviation safety laws and regulations.
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Article XI - Remedies on insolvency
1. This Article applies only where a Contracting State that is the primary insolvency
jurisdiction has made a declaration pursuant to Article XXX (3).
Alternative A
2. Upon the occurrence of an insolvency-related event, the insolvency administrator of the
debtor, as applicable, shall, subject to paragraph 7, give possession of the aircraft object
to the creditor no later than the earlier of:
the end of the waiting period; and
the date on which the creditor would be entitled to possession of the aircraft object if this Article
did not apply
3. For the purposes of this Article, the "waiting period" shall be the period specified in a
declaration of the Contracting State which is the primary insolvency jurisdiction.
4. References in this Article to the "insolvency administrator" shall be to that person in its
official, not in its personal, capacity.
5. Unless and until the creditor is given the opportunity to take possession under paragraph 2:
(a) the insolvency admi nistrator or the debtor, as applicable, shall preserve the
aircraft object and maintain it and its value in accordance with the agreement;
and
(b) the creditor shall be entitled to apply for any other forms of interim relief
available under the applicable law.
6. Sub-paragraph (a) of the preceding paragraph shall not preclude the use of the aircraft
object under arrangements designed to preserve the aircraft object and maintain it and
its value.
7. The insolvency administrator or the debtor, as applicable, may retain possession of the
aircraft object where, by the time specified in paragraph 2, it has cured all defaults other
than a default constituted by the opening of insolvency proceedings and has agreed to
perform all future obligations under the agreement. A second waiting period shall not
apply in respect of a default in the performance of such future obligations.
8. With regards to the remedies in Article IX(1):
(a )
they shall be made available by the registry authority and the administrative
authorities in a Contracting State, as applicable, no later than five working days
after the date on which the creditor notifies such authorities that it is entitled to
procure those remedies in accordance with the Convention; and
(b) the applicable authorities shall expeditiously co-operate with and assist the
creditor in the exercise of such remedies in conformity with applicable aviation
safety laws and regulations.
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9. No exercise of remedies permitted by the Convention or this Protocol may be prevented
or delayed after the date specified in paragraph 2.
10. No obligations of the debtor under the agreement may be modified without the consent
of the creditor.
11. Nothing in the preceding paragraph shall be construed to affect the authority, if any, of the insolvency administrator under the applicable law to terminate the agreement.
12. No rights or interests, except for non-consensual rights or interests of a category covered by a declaration pursuant to Article 39(1), shall have priority in insolvency proceedings over registered interests.
13. The Convention as modified by Article IX of this Protocol shall apply to the exercise of
any remedies under this Article.
Alternative B
2. Upon the occurrence of an insolvency-related event, the insolvency administrator or the debtor, as applicable, upon the request of the creditor, shall give notice to the creditor within the time specified in a declaration of a contracting State pursuant to Article XXX
(3) whether it will:
(a) cure all defaults other than a default constituted by the opening of insolvency
precedings and agree to perform all future obligations, under the agreement
and related transaction documents; or
(b) give the creditor the opportunity to take possession of the aircraft object, in
accordance with the applicable law.
3. The applicable law referred to in sub-paragraph (b) of the preceding paragraph may permit the court to require the taking of any additional step or the provision of any additional guarantee.
4. The creditor shall provide evidence of its claims and proof that its international interest
has been registered.
5. If the insolvency admi nistrator or the debtor, as applicable, does not give notice in conformity with paragraph 2, or when the insolvency administrator or the debtor has declared that it will give the creditor the opportunity to take possession of the aircraft object but fails to do so, the court may permit the creditor to take possession of the aircraft object upon such terms as the court may order and may require the taking of any additional step or the provision of any additional guarantee.
6. The aircraft object shall not be sold pendi ng a decision by a court regarding the claim and the international interest.
Article XII- Insolvency assistance
1. This article applies only where a Contracting State has made a declaration pursuant to Article XXX (1).
2. The courts of a Contracting State in which an aircraft object is situated shall, in
accordance with the law of the Contracting State, co-operate to the maximum
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extent possible with foreign courts and foreign insolvency administrators in carrying out
the provisions of Article XI.
Article XIII - De-registration and export request authorisation
1. This Article applies only where a Contracting State has made a declaration pursuant to
Article XXX (1).
2. Where the debtor has issued an irrevocable de-registration and export request
authorisation substantially in the form annexed to this Protocol and has submitted such
authorisation for recordation to the registry authority, that authorisation shall be so
recorded.
3. The person in whose favour the authorisation has been issued (the "authorized party")
or its certified designee shall be the sole person entitled to exercise the remedies
specified in Article IX (1) and may do so only in accordance with the authorisation and
applicable aviation safety laws and regulations. Such authorisation may not be revoked
by the debtor without the consent in writing of the authorized party. The registry
authority shall remove an authorisation from the registry at the request of the authorized
party.
4. The registry authority and other administrative authorities in Contracting States shall
expeditiously co-operate with and assist the authorised part in the exercise of the
remedies specified in Article IX.
Article XIV - Modification of priority provisions
1. A buyer of an aircraft object under a registered sale acquires its interest in that object
free from an interest subsequently registered and from an unregistered interest, even if
the buyer has actual knowledge of the unregistered interest.
2. A buyer of an aircraft object acquires its interest in that object subject to an interest
registered at the time of its acquisition.
3. Ownership of or another right or interest in an aircraft engine shall not be affected by its
installation on or removal from an aircraft.
4. Article 29(7) of the convention applies to an item, other than an object, installed on an
airframe, aircraft engine or helicopter.
Article XV - Modification of assignment provisions
Article 33(1) of the Convention applies as if the following were added immediately after sub-paragraph (b);
" and (c) the debtor has consented in writing, whether or not the consent is given in advance of the assignment or identifies the assignee."
Article XVI -Debtor provisions
1. In the absence of a default within the meaning of Article 11 of the Convention, the debtor
shall be entitled to the quiet possession and use of the object in accordance with the
agreement as against:
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(a) its creditor and the holder of any interest from which the debtor takes free
pursuant to Article 29(4) of the Convention or, in the capacity of buyer, Article
XIV(1) of this Protocol, unless and to the extent that the debtor has otherwise
agreed; and
(b) the holder of any interest to which the debtor's right or interest is subject
pursuant to Article 29(4) of the Convention, or in the capacity of buyer, Article
XIV(2) of this Protocol, but only to the extent, if any, that such holder has
agreed.
2. Nothing in the Convention or this Protocol affects the liability of a creditor for any breach of the agreement under the applicable law in so far as that agreement relates to an aircraft object.
Chapter III
Registry provisions relating to
International interests in aircraft objects
Article XVII -The Supervisory Authority and the Registrar
1. The Supervisory Authority shall be the international entity designated by a Resolution adopted by the Diplomatic Conference to Adopt a Mobile Equipment Convention and an Aircraft Protocol.
2. Where the international entity referred to in the preceding paragraph is not able and willing to act as Supervisory Authority, a Conference of Signatory and Contracting States shall be convened to designate another Supervisory Authority.
3. The Supervisory Authority and its officers and employees shall enjoy such immunity from legal and administrative process as is provided under the rules applicable to them as an international entity or otherwise.
4. The Supervisory Authority may establish a commission of experts, from among persons nominated by Signatory and Contracting States and having the necessary qualifications and experience, and entrust it with the task of assisting the Supervisory Authority in the discharge of its functions.
5. The first Registrar shall operate the International Registry for a period of five years from the date of entry into force of this Protocol. Thereafter, the Registrar shall be appointed or reappointed at regular five-yearly intervals by the Supervisory Authority.
Article XVIII - First regulations
The first regulations shall be made by the Supervisory Authority so as to take effect upon the
entry into force of this Protocol.
Article XIX Designated entry points
1. Subject to paragraph 2, a Contracting State may at any time designate an entity or entities in its territory as the entry point or entry points through which there shall or may be transmitted to the International Registry information required for registration other than registration of a notice of a national interest or a right or interest under Article 40 in
either case arising under the laws of another State.
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2. A designation made under the preceding paragraph may permit, but not compel, use of
a designated entry point or entry points for information required for registrations in
respect of aircraft engines.
Article XX- Additional modifications to Registry provisions
1. For the purposes of Article 19(6) of the Convention, the search criteria for an aircraft
object shall be the name of its manufacturer, its manufacturer's serial number and its
model designation, supplemented as necessary to ensure uniqueness. Such
supplementary information shall be specified in the regulations.
2. For the purposes of article 25(2) of the Convention and in the circumstances there
described, the holder of a registered prospective international interest or a registered
prospective assignment of an international interest or the person in whose favour a
prospective sale has been registered shall take such steps as are within its power to
procure the discharge of the registration no later than five working days after receipt of
the demand described in such paragraph.
3. The fees referred to in Article 17(2)(h) of the Convention shall be determined so as to
recover the reasonable costs of establishing, operating and regulating the International
Registry and the reasonable costs of the supervisory Authority associated with the
performance of the functions, exercise of the powers, and discharge of the duties
contemplated by article 17(2) of the Convention.
4. The centralised functions of the International Registry shall be operated and
administered by the Registrar on a twenty-four hours basis. The various entry points
shall be operated at least during working hours in their respective territories.
5. The amount of the insurance or financial guarantee referred to in Article 28(4) of the
Convention shall, in respect of each event, not be less than the maximum value of an
aircraft object as determined by the Supervisory Authority.
6. Nothing in the Convention shall preclude the Registrar from procuring insurance or a
financial guarantee covering events for which the Registrar is not liable under Article 28
of the Convention.
Chapter IV
J u risd ictio n
Article XXI -Modification of jurisdiction provisions
For the purposes of Article 43 of the Convention and subject to Article 42 of the Convention, a
court of a Contracting State also has jurisdiction where the object is a helicopter or an airframe
pertaining to an aircraft, for which that State is the State of registry.
Article XXII -Waiver of sovereign immunity
1. Subject to paragraph 2, a waiver of sovereign immunity from jurisdiction of the courts
specified in Article 42 or Article 43 of the Convention or relating to enforcement of rights
and interests relating to an aircraft object under the Convention shall be binding and, if
the conditions to such jurisdiction or
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enforcement have been satisfied, shall be effective to confer jurisdiction and permit
enforcement, as the case may be.
2. A waiver under the preceding paragraph must be in writing and contain a description of
the aircraft object.
Chapter V
Relationship with other conventions
Article XXIII -Relationship with the Convention on the International Recognition of Rights in Aircraft
The Convention shall, for a Contracting State that is a party to the Convention on the
International Recognition of Rights in Aircraft, signed at Geneva on 19 June 1948, supercede
that Convention as it relates to aircraft, as defined in this Protocol, and to aircraft objects.
However, with respect to rights or interests not covered or affected by the present Convention,
the Geneva Convention shall not be superceded.
Article XXIV - Relationship with the Convention for the Unification of Certain
Rules Relating to the Precautionary Attachment of Aircraft
1. The Convention shall, for a contracting State that is a Party to the Convention for the
Unification of Certain Rules Relating to the Precautionary Attachment of Aircraft, signed
at Rome on 29 May 1933, supersede that Convention as it relates to aircraft, as defined
in this Protocol.
2. A Contracting State Party to the above Convention may declare, at the time of
ratification, acceptance, approval of, or accession to this Protocol, that it will not apply
this Article.
Article XXV -Relationship with the UNIDROIT Convention on International Financial Leasing,
The Convention shall supercede the UNIDROIT Convention on International Financial Leasing,
signed at Ottawa on 28 May 1988, as it relates to aircraft objects.
Chapter VI
Final provisions
Article XXVI- Signature, ratification, acceptance, approval or accession.
1. This Protocol shall be open for signature in Cape Town on 16 November 2001 by States
participating in the Diplomatic Conference to Adopt a Mobile Equipment and an Aircraft
Protocol held at Cape Town from 29 October to 16 November 2001. After 16 November
2001, this Protocol shall be open to all States for signature at eh Headquarters of the
International Institute for the unification of the Private Law (UNIDROIT) in Rome until it
enters into force in accordance with Article XXVIII.
This protocol shall be subject to ratification, acceptance or approval by States which have signed it. 2.
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3. Any State which does not sign this Protocol may accede to it at any time.
4. Ratification, acceptance, approval or accession is effected by the deposit of a
formal instrument to that effect with the Depositary.
5. A State may not become a Party to this Protocol unless it is or becomes also a Party
to the Convention.
Article XXVII-Regional Economic Integration Organisations
1. A Regional Economic Integration Organisation which is constituted by sovereign States
and has competence over certain matters governed by this Protocol may similarly sign,
accept, approve, or accede to this Protocol. The Regional Economic Integration
Organisation shall in that case have the rights and obligations of a Contracting State, to
the extent that that organisation has competence over matters governed by this
Protocol. Where the number of Contracting States is relevant in this Protocol, the
Regional Economic Integration Organisation shall not count as a Contracting State in
addition to its member States which are Contracting States.
2. The Regional Economic Integration Organisation shall, at the time of signature,
acceptance, approval or accession, make a declaration to the Depositary specifying the
matters governed by this Protocol in respect of which competence has been transferred
to that Organisation by its Member States. The Regional Economic Integration
Organisation shall promptly notify the Depositary of any changes to the distribution of
competence, including new transfers of competence, specified in the declaration under
this paragraph.
3. Any reference to a "Contracting State" or "Contracting States" or "State Party" or "States
Parties" in this Protocol applies equally to Regional Economic Integration Organisation
where the context so requires.
Article XXVIII- Entry into force
1. This Protocol enters into force on the first day of the month following the expiration of
three months after the date of the deposit of the eight instrument of ratification,
acceptance, approval or accession, between the States which have deposited such
instruments
2. For other States this Protocol enters into force on the first day of the month following the
expiration of three months after the date of the deposit of its instrument of ratification,
acceptance, approval or accession.
Article XXIX - Territorial units
1. If a Contracting State has units in which different systems of law are applicable in
relation to the matters dealt with in this Protocol, it may, at the time of ratification,
acceptance, approval or accession, declare that this Protocol is to extend to all its
territorial units or only to one or more of them and may modify its declaration by
submitting another declaration at any time.
2. Any such declaration shall state expressly the territorial units to which this Protocol applies.
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3. If a Contracting State has not made any declaration under paragraph 1, this Protocol
shall apply to all territorial units of that State.
4. Where a Contracting State extends this Protocol to one or more of its territorial units,
declarations permitted under this Protocol may be made in respect of each such
territorial unit, and the declarations made in respect of one territorial unit may be
different form those made in respect of another territorial unit.
5. If by virtue of a declaration under paragraph 1, this protocol extends to one or more
territorial units of a Contracting State:
(a) the debtor is considered to be situated in a Contracting State only if it is
incorporated or formed under a law in force in a territorial unit to which the
Convention and this Protocol apply or if it has its registered office or statutory
seat, centre of administration, place of business or habitual residence in a
territorial unit to which the Convention and this Protocol apply;
(b) any reference to the location of the object in a Contracting State refers to the
location of the object in a territorial unit to which the Convention and this
Protocol apply; and
(c) any reference to the administrative authorities in that Contracting State shall be
construed as referring to the administrative authorities having jurisdiction in a
territorial unit to which the Convention and this Protocol apply and any
reference to the national register or to the registry authority in that Contracting
State shall be construed as referring to the aircraft register in force or to the
registry authority having jurisdiction in the territorial unit or units to which the
Convention and this Protocol apply.
Article XXX -Declaration relating to certain provisions
1. A Contracting State may, at the time of ratification, acceptance, approval of, or,
accession to this Protocol, declare that it will apply anyone or more of Articles VIII, XII
and XIII of this Protocol.
2. A Contracting State may, at the time of ratification, acceptance, approval of, or
accession to this Protocol, declare that it will apply Article X of this Protocol, wholly or in
part. If it so declares with respect to Article X(2), it shall specify the time-period required
thereby.
3. A Contracting State may, at the time of ratification, acceptance, approval of, or
accession to this Protocol, declare that it will apply the entirety of Alternative A, or the
entirety of Alternative B of Article XI and, if so, shall specify the types of insolvency
proceedings, if any, to which it will apply Alternative A and the types of insolvency
proceedings, if any, to which it will apply Alternative B. A Contracting State making a
declaration pursuant to this paragraph shall specify the timeperiod required by Article XI.
4. The courts of Contracting States shall apply Article XI in conformity with the declaration
made by the Contracting State which is the primary insolvency jurisdiction.
5. A Contracting State may, at the time of ratification, acceptance, approval of, or
accession to this Protocol, declare that it will not apply the provisions of Article
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2.
1.
2.
XXI, wholly or in part. The declaration shall specify under which conditions the relevant
Article will be applied, incase it will be applied partly, or otherwise which other forms of
interim relief will be applied.
Article XXXI - Declarations under the Convention
Declarations made under the Convention, including those made under Article
39,40,50,53,54,55,57,58, and 60 of the Convention, shall be deemed to have also been made
under this Protocol unless stated otherwise.
Article XXXII - Reservations and declarations
1. No reservations may be made to this Protocol but declarations authorised by Articles XXIV,
XXIX, XXX, XXXI, XXXIII, and XXXIV may be made in accordance with these provisions.
2. Any declaration or subsequent declaration or any withdrawal of a declaration
made under this Protocol shall be notified in writing to the Depositary.
Article XXXIII-Subsequent declarations
1. A State Party may make a subsequent declaration, other than a declaration made in
accordance with Article XXXI under Article 60 of the Convention, at any time after the
date on which this Protocol has entered into force for it, by notifying the Depositary to
that effect.
2. Any such subsequent declaration shall take effect on the first day of the month following
the expiration of six months after the date of receipt of the notification by the Depositary.
Where a longer period for that declaration to take effect is specified on the notification, it
shall take effect upon the expiration of such longer period after receipt of the notification
by the Depositary.
3. Notwithstanding the previous paragraphs, the Protocol shall continue to apply, as if no
such subsequent declarations have been made in respect of all rights and interests
arising prior to the effective date of any such subsequent declaration.
Article XXXIV-Withdrawal of declarations
1. Any State Party having made a declaration under this Protocol, other than a declaration
made in accordance with Article XXXI under Article 60 of the convention, may withdraw
it at any time by notifying the Depositary. Such withdrawal is to take effect on the first
day of the month following the expiration of six months after the date of receipt of the
notification by the Depositary.
Notwithstanding eth previous paragraph, this Protocol shall continue to apply, as if no
such withdrawal of declaration had been made, in respect of all rights and interest
arising prior to the effective date of any such withdrawal.
Article XXXV- Denunciations
Any State Party may denounce this Protocol by notification in writing to the
Depositary.
Any such denunciation shall take effect on the first day of the month following the
expiration of twelve months after the date of receipt of the notification by the
Depositary.
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3. Notwithstanding the previous paragraphs, this Protocol shall continue to apply, as if no
such denunciation had been made, in respect of all rights and interests arising prior to
the effective date of any such denunciation.
Article XXXVI- Review Conferences, amendments and related matters
1. The Depositary, in consultation with the Supervisory Authority, shall prepare reports
yearly, or at such time as the circumstances may require, for the States Parties as to the
manner in which the international regime established in the Convention as amended by
this Protocol has operated in practice. In preparing such reports, the Depositary shall
take into account the reports of the Supervisory Authority concerning the functioning of
the international registration system.
2. At the request of not less than twenty-five percent of the States Parties, Review
Conferences of the States Parties shall be convened from time to time by the
Depositary, in consultation with the Supervisory Authority, to consider:
(a) the practical operation of the Convention as amended by this Protocol and its
effectiveness in facilitating the asset-based financing and leasing of the objects
covered by its terms;
(b) the judicial interpretation given to, and the application made of the terms of this
Protocol and the regulations;
(c) the functioning of the international registration system, the performance of the
Registrar and its oversight by the Supervisory Authority, taking into account the
reports of the Supervisory Authority; and
(d) whether any modifications to this Protocol or the arrangements relating to the
International Registry are desirable.
3. Any amendment to this Protocol shall be approved by at least a two-third majority of
States Parties participating in the Conference referred to in the preceding
paragraph and shall then enter into force in respect of States which have ratified,
accepted or approved such amendment when it has been ratified, accepted or
approved by eight States in accordance with the Provisions of Article XXVIII
relating to its entry into force.
Article XXXVI 1- Depositary and its functions
1. Instruments of ratification, acceptance, approval or accession shall be deposited with
the International Institute for the Unification of Private Law (UNIDROIT), which is hereby
designated the Depositary.
2. The Depositary shall:
(a) inform all contracting States of:
(i) each new signature or deposit of an instrument of ratification,
acceptance, approval or accession, together with the date thereof;
(ii) the date of entry into force of this Protocol;
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(iii) each declaration made in accordance with this Protocol, together with
the date thereof;
(iv) the withdrawal or amendment of any declaration, together with the
date thereof; and
(v) the notification of any denunciation of this Protocol together with the
date thereof and the date on which it takes effect;
(b) transmit certified true copies of this Protocol to all Contracting States;
(c) provide the Supervisory Authority and the Registrar with a copy of each
instrument of ratification, acceptance, approval or accession, together with
date of deposit thereof, of each declaration or withdrawal or amendment of a
declaration and of each notification of denunciation, together with the date of
notification thereof, so that the information contained therein is easily and fully
available; and
(d) perform such other functions customary for depositaries.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, having been duly
authorized, have signed this Protocol.
DONE at Cape Town, this sixteenth day of November, two thousand and one, in a
single original in the English, Arabic, Chinese, French, Russian and Spanish languages, all texts
being equally authentic, such authenticity to take effect upon verification by the joint Secretariat
of the Conference under the authority of the President of the Conference within ninety days
hereof as to the conformity of the texts with one another.
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Annex
FORM OF IRREVOCABLE DE-REGISTRATION AND
EXPORT REQUEST AUTHORISATION
Annex referred to in Article XIII
(Insert Date)
To: (Insert Name of Registry Authority)
Re: Irrevocable De-Registration and Export Request Authorisation
The undersigned is the registered [operator] (owner)* of the [insert the
airframe/helicopter manufacturer name and model number] bearing manufacturer's
serial number [insert manufacturer's serial number] and registration [number] [mark]
[insert registration number/mark] (together with all installed, incorporated or attached
accessories, parts and equipment, the "aircraft").
This instrument is an irrevocable de-registration and export request authorisation issued
by the undersigned in favour of [insert name of creditor] ("the authorised party") under
the authority of Article XIII of the Protocol to the Convention on International Interests in
Mobile Equipment on Matters specific to Aircraft Equipment. In accordance with that
Article, the undersigned hereby requests:
(i) recognition that the authorised party or the person it certifies as its
designee is the sole person entitled to:
(a) procure the de-registration of the aircraft from the [inset
name of aircraft register] maintained by the [insert name of
registry authority] for the purposes of Chapter III of the
Convention on International Civil Aviation, signed at
Chicago, on 7 December 1944, and
(b) procure the export and physical transfer of the aircraft from
[insert name of country]; and
(ii) confirmation that the authorized party or the person it certifies as
designee may take the action specified in clause (i) above on written
demand without the consent of the undersigned and that, upon such
demand, the authorities in "[insert name of country] shall co-operate
with the authorised party with a view to the speedy completion of such
action.
The rights in favour of the authorised party established by this instrument may not be
revoked by the undersigned without the written consent of the authorised party.
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Please acknowledge your agreement to this request and its terms by appropriate
notation in the space provided below and lodging this instrument in [insert name of
registry authority].
[insert name of operator/owner]
Agreed to and lodged this By: [insert name of signatory]
[insert date] Its: [insert title of signatory
[insert relevant notational details]
* Select the term that reflects the relevant nationality registration criterion.
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SCHEDULE VI Section 3(4)
SUPPLEMENTRY PROVISIONS RELATING TO THE BOARD, ETC.
1. Subject to this Act and section 27 of the Interpretation Act, Cap 192 LFN 1990, the
Board may make standing orders regulating its proceedings or those of any of its
committees.
2. At every meeting of the Board, the Chairman shall preside and in his absence the
members present at the meeting shall appoint one of their members to preside at the
meeting.
3. The quorum at a meeting of the Board shall consist of the chairman or, in an
appropriate case, the person presiding at the meeting pursuant to paragraph 2 of this
Schedule, and three other members of the Board, two of whom shall be ex
officio members.
4. The Board shall, for the purposes of this Act, meet not less than three times in each
year and, subject thereto, the Board shall meet whenever it is summoned by the
Chairman, and if required to do so, by notice given to him by not less than four other
members, he shall summon a meeting of the Council to be held within 14 days from the
date on which the notice is given.
5. Where the Board desires to obtain the advice of any person on a particular matter, the
Board may co-opt him to the Board for such period as it deems fit, but a person who is a
member by virtue of this sub-paragraph shall not be entitled to vote at any meeting of
the Board and shall not count towards a quorum.
Committees
6. -(1) Subject to its standing orders, the Board may appoint such number of standing
and ad hoc Committee as it thinks fit to consider and report any matter with which the
authority is concerned.
(2) A committee appointed under this paragraph shall -
(a) consist of such number of persons (not necessarily members of the Board) as may
be determine by the Board, and a person, other than a member of the Board, shall hold
office on the committee in accordance with the terms of his appointment; and
(b) be presided over by a member of the Board.
(3) The quorum of any committee set up by the Board shall be as may be determined by
the Board.
(4) A decision of a committee of the Board shall be of no effect until it is confirmed by the
Board.
Miscellaneous
7. The Fixing of the seal of the Authority shall be authenticated by the signature of the Chairman,
the Director-General or any other person generally or specifically authorized by
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the Board to act for that purpose.
8. Any contract or instrument which, if made by a person not being a body corporate, would not
be required to be under seal may be made or executed on behalf of the Authority by the
director-General or by any other person generally or specially authorized by the Board to act for
that purpose.
9. Any document purporting to be a contract, instrument, or other document duly signed or
sealed on behalf of the Authority shall be received in evidence and shall, unless the contrary is
proved, be presumed without further proof to have been so signed or sealed.
10. The validity of any proceedings of the Board or of any of its committee shall not be affected by-
(a) any vacancy in the membership of the Board, or committee, or
(b) any defect in the appointment of a member of the Board or committee; or
(c) reason that any person not entitled to do so took part in the proceedings of the Board or Committee.
11. A member of the Board or a committee who has a personal interest in any contract or
arrangement entered into or proposed to be considered by the Board or such committee shall
forthwith disclose his interest to the Board and shall not vote on any question relating to the
contract or arrangement.
12. No member of the Board shall be personally liable for any act or omission done or made
in good faith while engaged in the business of the Authority.
PASSED BY THE SENATE ON TUESDAY, 10 OCTOBER, 2006
President, Senate of the Federal Republic of Nigeria
Clerk, Senate of the Federal Republic of Nigeria
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