Whereas a draft of this Order has been laid before Parliament and has been approved by a resolution of each House of Parliament, in accordance with section 10(5) of the Carriage by Air Act 1961(1):
Now, therefore, Her Majesty, in exercise of the powers conferred upon Her by section 10 of the Carriage by Air Act 1961, and of that section as applied by section 5(2) of the Carriage by Air (Supplementary Provisions) Act 1962(2), and of all other powers enabling Her in that behalf is pleased, by and with the advice of Her Privy Council to order, and it is hereby ordered, as follows:—
1. This Order may be cited as the Carriage by Air Acts (Application of Provisions) (Fourth Amendment) Order 1998 and shall come into force on the tenth day after the day on which it is made.
2. The Carriage by Air Acts (Application of Provisions) Order 1967(3) is hereby amended as follows:
(1) In Article 4(a) after “Schedule 2” there shall be inserted “or Schedule 3”.
(2) After Article 5 there shall be inserted the following article—
“5A.—(1) Schedule 3 to this Order shall have effect in respect of carriage to which this Order applies, being carriage which is international carriage as defined in that Schedule.
(2) Section 2 of the Act of 1961 shall apply to such carriage as aforesaid with the following modifications to subsection (1):
(a)For “Convention” where it first appears there shall be substituted “Warsaw Convention as amended by Additional Protocol No. 1 of Montreal 1975(4)”;
(b)For “at the end of the Convention as set out in the First Schedule to this Act” there shall be substituted “to the Warsaw Convention”.
(3) Section 8 of the Act of 1961 shall apply to such carriage as aforesaid, with the following adaptations and modifications:
(a)For “Convention” where it first appears there shall be inserted “Warsaw Convention as amended by Additional Protocol No. 1 of Montreal 1975”;
(b)The words “as set out in the First Schedule to this Act” shall be omitted;
(c)The reference to “the said Schedule” shall be construed as a reference to the amended Convention as applied by Schedule 3 to this Order.”.
(3) In Part A of Schedule 2—
(a)in paragraph 3(7), for the word “goods” there shall be substituted the word “cargo”;
(b)after paragraph 3(10) there shall be inserted the following sub-paragraph:—
“(10A) Article 15(3) shall not apply.”;
(c)after paragraph 3(14) there shall be inserted the following sub-paragraph:—
“(14A) Article 25A shall not apply.”.
(4) In Part B of Schedule 2 Articles 15(3) and 25A shall be omitted.
(5) After Schedule 2 there shall be inserted the following Schedule—
Article 5A
“SCHEDULE 3
International carriage under the Warsaw Convention as amended by Additional Protocol No. 1 of Montreal 1975;
PART A
1. The amended Convention and the Guadalajara Convention shall apply in respect of carriage which is “international carriage” as defined in paragraph 2 of this part of this Schedule, with the exceptions, adaptations and modifications set forth in paragraphs 3 and 4.
2. For the purposes of Article 5A of this Order and of this Schedule “international carriage” shall have the meaning assigned to it by paragraph 3(2) of this part of this Schedule.
3. The amended Convention shall apply to international carriage as aforesaid, with the following exceptions, adaptations and modifications:—
(1) For “Convention”, wherever it appears, there shall be substituted “Schedule”.
(2) The following shall be substituted for Article 1(2):
“(2) “International carriage” means any carriage in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties to the Convention for the Unification of Certain Rules relating to International Carriage by Air signed at Warsaw on behalf of His Majesty on 12th October 1929 as amended by Additional Protocol No. 1 of Montreal 1975, or within the territory of a single such State, if there is an agreed stopping place within the territory subject to the sovereignty, suzerainty, mandate or authority of another State, even though that State is not a party to the said Convention of 1929 as so amended.”.
(3) The following shall be substituted for Article 1(3):—
“(3) A carriage to be performed by several successive air carriers is deemed for the purposes of this Schedule, 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 a territory subject to the sovereignty, suzerainty, mandate or authority of the same High Contracting Party.”.
(4) The following shall be substituted for Article 2:—
“Article 2
(1) This Schedule applies to carriage performed by the State, not being a State which has availed itself of the Additional Protocol to the Warsaw Convention, or by legally constituted public bodies, provided it falls within the conditions laid down in Article 1.
(2) This Schedule does not apply to carriage performed under the terms of any international postal Convention.”.
(5) The following shall be substituted for Article 3:—
“Article 3
(1) For the carriage of passengers the carrier must deliver a passenger ticket which shall contain the following particulars:—
(a)the place and date of issue;
(b)the place of departure and of destination;
(c)the agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right, the alteration shall not have the effect of depriving the carriage of its international character;
(d)the name and address of the carrier or carriers;
(e)a statement that the carriage is subject to the rules relating to liability established by the Warsaw Convention.
(2) The absence, irregularity or loss of the passenger ticket does not affect the existence or the validity of the contract of carriage, which shall none the less be subject to the rules of this Schedule. Nevertheless, if the carrier accepts a passenger without a passenger ticket having been delivered he shall not be entitled to avail himself of those provisions of this Schedule which exclude or limit his liability.”.
(6) The following shall be substituted for Article 4:—
“Article 4
(1) For the carriage of baggage, other than small personal objects of which the passenger takes charge himself, the carrier must deliver a baggage check.
(2) The baggage check shall be made out in duplicate, one part for the passenger and the other part for the carrier.
(3) The baggage check shall contain the following particulars:—
(a)the place and date of issue;
(b)the place of departure and of destination;
(c)the name and address of the carrier or carriers;
(d)the number of the passenger ticket;
(e)a statement that delivery of the baggage will be made to the bearer of the baggage check;
(f)the number and weight of the packages;
(g)the amount of the value declared in accordance with Article 22(2);
(h)a statement that the carriage is subject to the rules relating to liability established by the Warsaw Convention.
(4) The absence, irregularity or loss of the baggage check does not affect the existence or the validity of the contract of carriage, which shall none the less be subject to the rules of this Schedule. Nevertheless, if the carrier accepts baggage without a baggage check having been delivered, or if the baggage check does not contain the particulars set out at (d), (f) and (h) above, the carrier shall not be entitled to avail himself of those provisions of this Schedule which exclude or limit his liability.”.
(7) The following shall be substituted for Article 6(3):—
“(3) The carrier shall sign on acceptance of the cargo.”.
(8) The following shall be substituted for Article 8:—
“Article 8
The air waybill shall contain the following particulars:—
(a)
The place and date of its execution;
(b)
the place of departure and of destination;
(c)
the agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right the alteration shall not have the effect of depriving the carriage of its international character;
(d)
the name and address of the consignor;
(e)
the name and address of the first carrier;
(f)
the name and address of the consignee, if the case so requires;
(g)
the nature of the cargo;
(h)
the number of the packages, the method of packing and the particular marks or numbers upon them;
(i)
the weight, the quantity and the volume or dimensions of the cargo;
(j)
the apparent condition of the cargo and of the packing;
(k)
the freight, if it has been agreed upon, the date and place of payment, and the person who is to pay it;
(l)
if the cargo is sent for payment on delivery, the price of the cargo, and, if the case so requires, the amount of the expenses incurred;
(m)
the amount of the value declared in accordance with Article 22(2);
(n)
the number of parts of the air waybill;
(o)
the documents handed to the carrier to accompany the air waybill;
(p)
the time fixed for the completion of the carriage and a brief note of the route to be followed, if these matters have been agreed upon;
(q)
a statement that the carriage is subject to the rules relating to liability established by the Warsaw Convention.”.
(9) The following shall be substituted for Article 9:—
“Article 9
If the carrier accepts cargo without an air waybill having been made out, or if the air waybill does not contain all the particulars set out in Article 8(a) to (i) inclusive and (q), the carrier shall not be entitled to avail himself of the provisions of this Schedule which exclude or limit his liability.”.
(10) The following shall be substituted for Article 10(2):—
“(2) The consignor will be liable for all damage suffered by the carrier or any other person by reason of the irregularity, incorrectness or incompleteness of the said particulars and statements.”.
(11) Article 15(3) shall not apply.
(12) The following shall be substituted for Article 20(2):—
“(2) In the carriage of cargo and baggage the carrier is not liable if he proves that the damage was occasioned by negligent pilotage or negligence in the handling of the aircraft or in navigation and that, in all other respects, he and his servants or agents have taken all necessary measures to avoid the damage.”.
(13) The following shall be substituted for Article 22:—
“Article 22
(1) In the carriage of passengers the liability of the carrier for each passenger is limited to the sum of 8,300 Special Drawing Rights. Where, in accordance with the law of the court seised of the case, damages may be awarded in the form of periodic payments, the equivalent capital value of the said payments shall not exceed this limit. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.
(2) In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of 17 Special Drawing Rights per kilogramme, 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 he proves that the sum is greater than the consignor’s actual interest in delivery at destination.
(3) As regards objects of which the passenger takes charge himself the liability of the carrier is limited to 332 Special Drawing Rights per passenger.
(4) The sums mentioned in terms of the Special Drawing Right in this Article 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 the Special Drawing Right at the date of the judgement. The value of a national currency, in terms of the Special Drawing Right, of a High Contracting 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 judgement, for its operations and transactions. The value of a national currency, in terms of the Special Drawing Right, of a High Contracting Party which is not a Member of the International Monetary Fund, shall be calculated in a manner determined by that High Contracting Party.
Nevertheless, those States which are not Members of the International Monetary Fund and whose law does not permit the application of the provisions of paragraphs 1, 2 and 3 of Article 22 may at the time of ratification or accession or at any time thereafter declare that the limit of liability of the carrier in judicial proceedings in their territories is fixed at a sum of 125,000 monetary units per passenger with respect to paragraph 1 of Article 22; 250 monetary units per kilogramme with respect to paragraph 2 of Article 22; and 5,000 monetary units per passenger 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.”.
(14) Article 23(2) shall not apply.
(15) The following shall be substituted for Article 25:—
“Article 25
(1) The carrier shall not be entitled to avail himself of the provisions of this Schedule which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as, in accordance with the law of the Court seised of the case, is considered to be equivalent to wilful misconduct.
(2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused as aforesaid by any servant or agent of the carrier acting within the scope of his employment.”.
(16) Article 25A shall not apply.
(17) The following shall be substituted for Article 26(2):—
“(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 three days from the date of receipt in the case of baggage and seven 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 fourteen days from the date on which the baggage or cargo has been placed at his disposal.”.
(18) In Article 28(1), after “High Contracting Parties” there shall be added “to the Warsaw Convention as amended by Additional Protocol No. 1 of Montreal 1975”.
(19) The following shall be substituted for Article 34:—
“Article 34
This Schedule does not apply to international carriage by air performed by way of experimental trial by air navigation undertakings with the view to the establishment of a regular line of air navigation, nor does it apply to carriage performed in extraordinary circumstances outside the normal scope of an air carrier’s business.”.
(20) Articles 36 and 40A shall not apply.
4. The Guadalajara Convention shall apply to international carriage within the meaning of this Schedule, with the following exceptions, adaptations and modifications:—
(1) For “this Convention” wherever it appears there shall be substituted “the Guadalajara Convention as applied by this Schedule”.
(2) In Article 1, the following shall be added as paragraph (a):—
““the Warsaw Convention” means the amended Convention as applied by this Schedule.”.
PART B
For convenience of reference the amended Convention and the Guadalajara Convention, with the exceptions, adaptations and modifications by this Schedule, are here set out:—
A. The amended Warsaw Convention, as applied by Schedule 3(INTERNATIONAL CARRIAGE UNDER THE UNAMENDED WARSAW CONVENTION AS AMENDED BY ADDITIONAL PROTOCOL No. 1 OF MONTREAL 1975)
CHAPTER 1SCOPE-DEFINITIONS
Article 1
(1) This Schedule 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) “International carriage” means any carriage in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties to the Convention for the Unification of Certain Rules relating to International Carriage by Air signed at Warsaw on behalf of His Majesty on 12th October 1929 as amended by Additional Protocol No. 1 of Montreal 1975, or within the territory of a single such State, if there is an agreed stopping place within the territory subject to the sovereignty, suzerainty, mandate or authority of another State, even though that State is not a party to the said Convention of 1929 as so amended.
(3) A carriage to be performed by several successive air carriers is deemed, for the purposes of this Schedule, 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 a territory subject to the sovereignty, suzerainty, mandate or authority of the same High Contracting Party.
Article 2
(1) This Schedule applies to carriage performed by the State, not being a State which has availed itself of the Additional Protocol to the Warsaw Convention, or by legally constituted public bodies, provided it falls within the conditions laid down in Article 1.
(2) This Schedule does not apply to carriage performed under the terms of any international postal Convention.
CHAPTER IIDOCUMENTS OF CARRIAGE
SECTION I—PASSENGER TICKET
Article 3
(1) For the carriage of passengers the carrier must deliver a passenger ticket which shall contain the following particulars:—
(a)the place and date of issue;
(b)the place of departure and of destination;
(c)the agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right, the alteration shall not have the effect of depriving the carriage of its international character;
(d)the name and address of the carrier or carriers;
(e)a statement that the carriage is subject to the rules relating to liability established by the Warsaw Convention.
(2) The absence, irregularity or loss of the passenger ticket does not affect the existence or the validity of the contract of carriage, which shall none the less be subject to the rules of this Schedule. Nevertheless, if the carrier accepts a passenger without a passenger ticket having been delivered he shall not be entitled to avail himself of those provisions of this Schedule which exclude or limit his liability.
SECTION 2—BAGGAGE CHECK
Article 4
(1) For the carriage of baggage, other than small personal objects of which the passenger takes charge himself, the carrier must deliver a baggage check.
(2) The baggage check shall be made out in duplicate, one part for the passenger and the other part for the carrier.
(3) The baggage check shall contain the following particulars:—
(a)the place and date of issue;
(b)the place of departure and of destination;
(c)the name and address of the carrier or carriers;
(d)the number of the passenger ticket;
(e)a statement that delivery of the baggage will be made to the bearer of the baggage check;
(f)the number and weight of the packages;
(g)the amount of the value declared in accordance with Article 22(2);
(h)a statement that the carriage is subject to the rules relating to liability established by the Warsaw Convention.
(4) The absence, irregularity or loss of the baggage check does not affect the existence or the validity of the contract of carriage, which shall none the less be subject to the rules of this Schedule. Nevertheless, if the carrier accepts baggage without a baggage check having been delivered, or if the baggage check does not contain the particulars set out at (d), (f) and (h) above, the carrier shall not be entitled to avail himself of those provisions of this Schedule which exclude or limit his liability.
SECTION 3—AIR WAYBILL
Article 5
(1) Every carrier of cargo has the right to require the consignor to make out and hand over to him a document called an “air waybill”; every consignor has the right to require the carrier to accept this document.
(2) The absence, irregularity or loss of this document does not affect the existence or the validity of the contract of carriage which shall, subject to the provisions of Article 9, be none the less governed by the rules of this Schedule.
Article 6
(1) The air waybill shall be made out by the consignor in three original parts and be handed over with the cargo.
(2) The first part shall be marked “for the carrier”, and 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 and shall accompany the cargo. The third part shall be signed by the carrier and handed by him to the consignor after the cargo has been accepted.
(3) The carrier shall sign on acceptance of the cargo.
(4) The signature of the carrier may be stamped; that of the consignor may be printed or stamped.
(5) If, at the request of the consignor, the carrier makes out the air waybill, he shall be deemed, subject to proof to the contrary, to have done so on behalf of the consignor.
Article 7
The carrier of cargo has the right to require the consignor to make out separate waybills when there is more than one package.
Article 8
The air waybill shall contain the following particulars:—
(a)
the place and date of its execution;
(b)
the place of departure and of destination;
(c)
the agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right the alteration shall not have the effect of depriving the carriage of its international character;
(d)
the name and address of the consignor;
(e)
the name and address of the first carrier;
(f)
the name and address of the consignee, if the case so requires;
(g)
the nature of the cargo;
(h)
the number of the packages, the method of packing and the particular marks or numbers upon them;
(i)
the weight, the quantity and the volume or dimensions of the cargo;
(j)
the apparent condition of the cargo and of the packing;
(k)
the freight, if it has been agreed upon, the date and place of payment, and the person who is to pay it;
(l)
if the cargo is sent for payment on delivery, the price of the cargo, and, if the case so requires, the amount of the expenses incurred;
(m)
the amount of the value declared in accordance with Article 22(2);
(n)
the number of parts of the air waybill;
(o)
the documents handed to the carrier to accompany the air waybill;
(p)
the time fixed for the completion of the carriage and a brief note of the route to be followed, if these matters have been agreed upon;
(q)
a statement that the carriage is subject to the rules relating to liability established by the Warsaw Convention.
Article 9
If the carrier accepts cargo without an air waybill having been made out, or if the air waybill does not contain all the particulars set out in Article 8(a) to (i) inclusive and (q), the carrier shall not be entitled to avail himself of the provisions of this Schedule which exclude or limit his liability.
Article 10
(1) The consignor is responsible for the correctness of the particulars and statements relating to the cargo which he inserts in the air waybill.
(2) The consignor will be liable for all damage suffered by the carrier or any other person by reason of the irregularity incorrectness or incompleteness of the said particulars and statements.
Article 11
(1) The air waybill is prima facie evidence of the conclusion of the contract, of the receipt of the cargo and of the conditions of carriage.
(2) The statements in the air waybill relating to the weight, dimensions and packing 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 to have been, checked by him in the presence of the consignor, or relate to the apparent condition of the cargo.
Article 12
(1) Subject to his liability to carry out all his obligations under the contract of carriage, the consignor has the right to dispose of the cargo by withdrawing it at the aerodrome 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 named in the air waybill, or by requiring it to be returned to the aerodrome of departure. He must not exercise this right of disposition in such a way as to prejudice the carrier or other consignors and he must repay any expenses occasioned by the exercise of this right.
(2) If it is impossible to carry out the orders of the consignor the carrier must so inform him forthwith.
(3) If the carrier obeys the orders of the consignor for the disposition of the cargo without requiring the production of the part of the air waybill delivered to the latter, he will be liable, without prejudice to his 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.
(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 waybill or the cargo, or if he cannot be communicated with, the consignor resumes his right of disposition.
Article 13
(1) Except in the circumstances set out in the preceding Article, the consignee is entitled, on arrival of the cargo at the place of destination, to require the carrier to hand over to him the air waybill and to deliver the cargo to him, on payment of the charges due and on complying with the conditions of carriage set out in the air waybill.
(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 put into force against the carrier the rights which flow from the contract of carriage.
Article 14
The consignor and the consignee can respectively enforce all the rights given them by Articles 12 and 13, each in his own name, whether he is acting in his own interest or in the interest of another, provided that he carries out the obligations imposed by the contract.
Article 15
(1) Articles 12, 13 and 14 do not affect either the relations of the consignor or 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 provision in the air waybill.
Article 16
(1) The consignor must furnish such information and attach to the air waybill such documents as are necessary to meet the formalities of customs, octroi or police 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 or his servants or agents.
(2) The carrier is under no obligation to enquire into the correctness or sufficiency of such information or documents.
CHAPTER IIILIABILITY OF THE CARRIER
Article 17
The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
Article 18
(1) The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage by air.
(2) The carriage by air within the meaning of the preceding paragraph comprises the period during which the baggage or cargo is in charge of the carrier, whether in an aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome in any place whatsoever.
(3) The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome. If, however, such a carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air.
Article 19
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo.
Article 20
(1) The carrier is not liable if he proves that he and his servants or agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.
(2) In the carriage of cargo and baggage the carrier is not liable if he proves that the damage was occasioned by negligent pilotage or negligence in the handling of the aircraft or in navigation and that, in all other respects, he and his servants or agents have taken all necessary measures to avoid the damage.
Article 21
If the carrier proves that the damage was caused by or contributed to by the negligence of the injured person the Court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability.
Article 22
(1) In the carriage of passengers the liability of the carrier for each passenger is limited to the sum of 8,300 Special Drawing Rights. Where, in accordance with the law of the court seised of the case, damages may be awarded in the form of periodic payments, the equivalent capital value of the said payments shall not exceed this limit. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability.
(2) In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of 17 Special Drawing Rights per kilogramme, 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 he proves that that sum is greater than the consignor’s actual interest in delivery at destination.
(3) As regards objects of which the passenger takes charge himself the liability of the carrier is limited to 332 Special Drawing Rights per passenger.
(4) The sums mentioned in terms of the Special Drawing Right in this Article 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 the Special Drawing Right at the date of the judgement. The value of a national currency, in terms of the Special Drawing Right, of a High Contracting Party which is a Member of the 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 judgement, for its operations and transactions. The value of national currency, in terms of the Special Drawing Right, of a High Contracting Party which is not a Member of the International Monetary Fund, shall be calculated in a manner determined by that High Contracting Party.
Nevertheless, those States which are not Members of the International Monetary Fund and whose law does not permit the application of the provisions of paragraphs 1, 2 and 3 of Article 22 may at the time of ratification or accession or at any time thereafter declare that the limit of liability of the carrier in judicial proceedings in their territories is fixed at a sum of 125,000 monetary units per passenger with respect to paragraph 1 of Article 22; 250 monetary units per kilogramme with respect to paragraph 2 of Article 22; and 5,000 monetary units per passenger 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.
Article 23
Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Schedule 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 Schedule.
Article 24
(1) In the cases covered by Articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Schedule.
(2) In the cases covered by Article 17 the provisions of the preceding paragraph also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.
Article 25
(1) The carrier shall not be entitled to avail himself of the provisions of this Schedule which exclude or limit his liability, if the damage is caused by his wilful misconduct, or by such default on his part as, in accordance with the law of the Court seised of the case, is considered to be equivalent to wilful misconduct.
(2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused as aforesaid by any servant or agent of the carrier acting within the scope of his employment.
Article 26
(1) Receipt by the person entitled to delivery of baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage.
(2) In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within three days from the date of receipt in the case of baggage and seven 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 fourteen days from the date on which the baggage or cargo has been placed at his disposal.
(3) Every complaint must be made in writing upon the document of carriage or by separate notice in writing despatched within the times aforesaid.
(4) Failing complaint within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part.
Article 27
In the case of the death of the person liable, an action for damages lies in accordance with the terms of this Schedule against those legally representing his estate.
Article 28
(1) An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties to the Warsaw Convention as amended by Additional Protocol No. 1 of Montreal 1975, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination.
(2) Questions of procedure shall be governed by the law of the Court seised of the case.
Article 29
(1) The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
(2) The method of calculating the period of limitation shall be determined by the law of the Court seised of the case.
Article 30
(1) In the case of carriage to be performed by various successive carriers and falling within the definition set out in the third paragraph of Article 1, each carrier who accepts passengers, baggage or cargo is subjected to the rules set out in this Schedule, and is deemed to be one of the contracting parties to the contract of carriage in so far as the contract deals with that part of the carriage which is performed under his supervision.
(2) In the case of carriage of this nature, the passenger or his representative can take action only against the carrier who performed the carriage during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey.
(3) As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and 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 who performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee.
CHAPTER IVPROVISIONS RELATING TO COMBINED CARRIAGE
Article 31
(1) In the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of this Schedule apply only to the carriage by air, provided that the carriage by air falls within the terms of Article 1.
(2) Nothing in this Schedule 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 Schedule are observed as regards the carriage by air.
CHAPTER VGENERAL AND FINAL PROVISIONS
Article 32
Any clause contained in the contract and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this Schedule, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void. Nevertheless, for the carriage of cargo arbitration clauses are allowed, subject to this Schedule, if the arbitration is to take place within one of the jurisdictions referred to in the first paragraph of Article 28.
Article 33
Nothing contained in this Schedule shall prevent the carrier either from refusing to enter into any contract of carriage, or from making regulations which do not conflict with the provisions of this Schedule.
Article 34
This Schedule does not apply to international carriage by air performed by way of experimental trial by air navigation undertakings with the view to the establishment of a regular line of air navigation, nor does it apply to carriage performed in extraordinary circumstances outside the normal scope of an air carrier’s business.
Article 35
The expression “days” when used in this Schedule means current days not working days.
ADDITIONAL PROTOCOL TO THE WARSAW CONVENTION
The High Contracting Parties reserve to themselves the right to declare at the time of ratification or of accession that the first paragraph of Article 2 of this Convention shall not apply to international carriage by air performed directly by the State, its colonies, protectorates or mandated territories or by any other territory under its sovereignty, suzerainty or authority.
B. The Guadalajara Convention as applied by Schedule 3(INTERNATIONAL CARRIAGE UNDER THE UNAMENDED WARSAW CONVENTION AS AMENDED BY ADDITIONAL PROTOCOL No. 1 OF MONTREAL 1975)
Article I
In the Guadalajara Convention as applied by this Schedule:
(a)
“The Warsaw Convention” means the amended Convention as applied by this Schedule;
(b)
“contracting carrier” means a person who as a principal makes an agreement for carriage governed by the Warsaw Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor;
(c)
“actual carrier” means a person, other than the contracting Carrier, who, by virtue of authority from the contracting carrier, performs the whole or part of the carriage contemplated in paragraph (b) but who is not with respect to such part a successive carrier within the meaning of the Warsaw Convention. Such authority is presumed in the absence of proof to the contrary.
Article II
If an actual carrier performs the whole or part of carriage which, according to the agreement referred to in Article 1, paragraph (b), is governed by the Warsaw Convention, both the contracting carrier and the actual carrier shall, except as otherwise provided in the Guadalajara Convention as applied by this Schedule, be subject to the rules of the Warsaw Convention, the former for the whole of the carriage contemplated in the agreement, the latter solely for the carriage which he performs.
Article III
1. The acts and omissions of the actual carrier and of his 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 his 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 limits specified in Article 22 of the Warsaw Convention. Any special agreement under which the contracting carrier assumes obligations not imposed by the Warsaw Convention or any waiver of rights conferred by that Convention or any special declaration of interest in delivery at destination contemplated in Article 22 of the said Convention, shall not affect the actual carrier unless agreed to by him.
Article IV
Any complaint to be made or order to be given under the Warsaw Convention to the carrier shall have the same effect whether addressed to the contracting carrier or to the actual carrier. Nevertheless, orders referred to in Article 12 of the Warsaw Convention shall only be effective if addressed to the contracting carrier.
Article V
In relation to the carriage performed by the actual carrier, any servant or agent of that carrier or of the contracting carrier shall, if he proves that he acted within the scope of his employment be entitled to avail himself of the limits of liability which are applicable under the Guadalajara Convention as applied by this Schedule to the carrier whose servant or agent he is unless it is proved that he acted in a manner which, under the Warsaw Convention, prevents the limits of liability from being invoked.
Article VI
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 the Guadalajara Convention as applied by this Schedule, but none of the persons mentioned shall be liable for a sum in excess of the limit applicable to him.
Article VII
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 VIII
Any action for damages contemplated in Article VII of the Guadalajara Convention as applied by this Schedule must be brought, at the option of the plaintiffs either before a Court in which an action may be brought against the contracting carrier, as provided in Article 28 of the Warsaw Convention, or before the Court having jurisdiction at the place where the actual carrier is ordinarily resident or has his principal place of business.
Article IX
1. Any contractual provision tending to relieve the contracting carrier or the actual carrier of liability under the Guadalajara Convention as applied by this Schedule or to fix a lower limit than that which is applicable according to the Guadalajara Convention as applied by this Schedule shall be null and void, but the nullity of any such provision does not involve the nullity of the whole agreement, which shall remain subject to the provisions of the Guadalajara Convention as applied by this Schedule.
2. In respect of the carriage performed by the actual carrier, the preceding paragraph shall not apply to contractual provisions governing loss or damage resulting from the inherent defect, quality or vice of the cargo carried.
3. Any clause contained in an agreement for carriage and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by the Guadalajara Convention as applied by this Schedule, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void. Nevertheless, for the carriage of cargo arbitration clauses are allowed, subject to the Guadalajara Convention as applied by this Schedule, if the arbitration is to take place in one of the jurisdictions referred to in Article VIII.
Article X
Except as provided in Article VII, nothing in the Guadalajara Convention as applied by this Schedule shall affect the rights and obligations of the two carriers between themselves.”.
N. H. Nicholls
Clerk of the Privy Council
Explanatory Note
(This note is not part of the Order)
This Order amends the Carriage by Air Acts (Application of Provisions) Order 1967, as amended (which applies the provisions of the Carriage by Air Act 1961 and the Carriage by Air (Supplementary Provisions) Act 1962, with modifications set out in the Order, to carriage to which those Acts would otherwise not apply). The principal amendments provide for the deletion of Articles 15(3) and 25(A) of the Warsaw Convention as amended at The Hague 1955 from their application to international carriage under the unamended Warsaw Convention and for the introduction of an additional Schedule (Schedule 3) to have effect in respect of certain international carriage to which Additional Protocol No. 1 of Montreal 1975 applies (which introduces a new unit of account—the Special Drawing Right—for the purposes of the Warsaw Convention as amended by Additional Protocol No. 1 of Montreal 1975). That Protocol came into force on 15th February 1996.
(1)
1961 c. 27.
(2)
1962 c. 43.
(3)
S.I. 1967/480 as amended by S.I. 1969/1083, 1979/931 and 1981/440.
(4)
Cmd. 4284 and Cmd. 6480.
